"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt and Dr. Alicia Triche, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
NQRFPT = “Not Quite Ready For Prime Time” — Unfortunately, it’s a more than apt descriptor for the Biden Administration’s overall inept and tone-deaf approach to due process and immigrants’ rights in the beyond dysfunctional and unjust “Immigration Courts” under EOIR @ Garalnd’s DOJ.
Mike LaSusa Legal and Natioanl Security Reporter Law369 PHOTO: Twitter
Influx Of Solo Kids Poses Challenge For Immigration Courts
By Mike LaSusa
Law360 (March 31, 2022, 2:44 PM EDT) — Unaccompanied minors arriving in increasing numbers at the southern U.S. border are likely to face a tough time finding legal representation and navigating an overwhelmed immigration court system that has no special procedures for handling their cases.
The number of unaccompanied children encountered by U.S. Customs and Border Protection has risen sharply over the past year, to an average of more than 10,000 per month, according to CBP data. Those kids’ cases often end up in immigration court, where they are subject to the exact same treatment as adults, no matter their age.
“Nobody really thought of this when the laws were enacted,” said retired Immigration Judge Paul Wickham Schmidt, now an adjunct professor at Georgetown Law. “Everything dealing with kids is kind of an add-on,” he said, referring to special dockets for minors and other initiatives that aren’t expressly laid out in the law but have been tried in various courts over the years.
About a third of the immigration court cases started since October involve people under 18, and of those people, 40% are 4 or under, according to recent statistics from the U.S. Department of Justice’s Executive Office for Immigration Review, which operates the courts.
It’s unclear how many of those cases involve unaccompanied children and how many involve kids with adult relatives, and it’s hard to make historical comparisons because of changes in how the EOIR has tracked data on kids’ cases over the years.
But kids’ cases are indeed making up an increasing share of immigration court dockets, according to Jennifer Podkul, vice president of policy and advocacy for Kids in Need of Defense, or KIND, one of the main providers of legal services for migrant kids in the U.S.
“The cases are taking a lot longer because the backlog has increased so much,” Podkul said. Amid the crush of cases, attorneys can be hard to find.
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The immigration courts should consider “getting some real juvenile judges who actually understand asylum law and have real special training, not just a few hours of canned training, to deal with kids,” said Schmidt, the former immigration judge.
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Those with Law360 access can read Mike’s complete article at the link.
For what seems to be the millionth time with Garland, it’s not “rocket science.”🚀 He should have brought in Jen Podkul, her “boss,” Wendy Young of KIND, or a similar qualified leader from outside Government, to kick tail, roll some heads, clean out the deadwood, and set up a “Juvenile Division” of the Immigration Court staffed with well-qualified “real” judges, experts in asylum law, SIJ status, U & T visas, PD, and due process for vulnerable populations.
Such judicial talent is out there. But, that’s the problem with Garland! The judicial and leadership talent remain largely “out there” while lesser qualified individuals continue to botch cases and screw up the justice system on a regular basis! Actions have consequences; so do inactions and failure to act decisively and courageously.
And, of course, Garland should have replaced the BIA with real judges — progressive practical scholars who wouldn’t tolerate some of the garbage inflicted on kids by the current out of control, undisciplined, “enforcement biased,” anti-immigrant EOIR system.
Instead, Garland employs Miller “restrictionist enforcement guru” Tracy Short as his “Chief Immigration Judge” and another “Miller holdover” David Wetmore as BIA Chair. No immigration expert in America would deem either of these guys capable or qualified to insure due process for kids (or, for that matter anyone else) in Immgration Court.
Yet, more than a year into the Biden Administration, there they are! It’s almost as if Stephen Miller just moved over to DOJ to join his buddy Gene Hamilton in abusing immigrants in Immigration Court. (Technically, Hamilton is gone, but it would be hard to tell from the way Garland and his equally tone-deaf lieutenants have messed up EOIR. Currently, he and Miller are officers of “America First Legal” a neo-fascist group engaged in “aiming to reinstate Trump-era policies that bar unaccompanied migrant children from entering the United States,” according to Wikipedia.)
Meanwhile, the folks with the expertise to solve problems and get the Immigration Courts back on track, like Jen & Wendy, are giving interviews and trying to fix Garland’s ungodly mess from the outside! What’s wrong with this picture? What’s wrong with this Administration?
We’re about to find out! Big time, as Garland’s broken, due-process denying “court” system continues it’s “death spiral,” ☠️ taking lots of kids and other human lives down with it!
Carrie Cordero Senior Fellow Center for New American SecurityHeidi Li Feldman Professor of Law Georgetown LawChimene Heitner Professor of Law UC-Hastings Law
ProPublica published an extensive investigative report last week detailing the circumstances surrounding the death of 16-year-old Carlos Gregorio Hernandez Vasquez. The teenager died in Customs and Border Protection detention in May, approximately one week after entering the United States—even though children are not supposed to be held by CBP for more than 72 hours before being transferred to Health and Human Services. Vasquez had boarded a raft on the Rio Grande with dozens of others and was promptly apprehended by U.S. Border Patrol agents after landing in Hidalgo, Texas. He was separated from his adult sister, with whom he had been traveling, and placed in CBP custody, where he apparently developed and then died from the flu.
While Vasquez’s death was reported in the press at the time, the new ProPublica report includes a video appearing to be from the time period before and after Vasquez’s’ death in the CBP cell. (Vasquez’s’ family has since indicated that they had not seen the video and had not consented to its release or distribution.) The video appears to show that—contrary to the Department of Homeland Security’s public explanation last spring when his death was first reported—Vasquez did not receive proper welfare checks during the night, and was found lifeless by his cellmate in the morning. These new circumstances raise grave questions about whether the government and individual CBP officials will face legal consequences for failing to provide him with adequate medical treatment, failing to monitor his deteriorating health, and, potentially, attempting to conceal the actual circumstances of his death.
The ProPublica report explains that there is an open internal DHS Office of Inspector General investigation of the circumstances surrounding the death, following an earlier local law enforcement investigation conducted by the Weslaco Police Department. The police investigation apparently did not result in enforcement action. Meanwhile, the administrative process within DHS is awaiting the outcome of the OIG investigation. It should not go unnoticed that this death occurred during a period of heightened instability in the agency’s leadership ranks. Vasquez’s’ death took place the month after Secretary Kirstjen Nielsen resigned, and during the period when CBP was under the direction of an acting director, John Sanders, since former Kevin McAleenan had been the CBP chief before being elevated to acting secretary. Sanders resigned shortly after the incident and told ProPublica that “I really think the American government failed these people. The government failed people like Carlos,” he said. “I was part of that system at a very high level, and Carlos’ death will follow me for the rest of my life.”
Press reports over the spring spring stated that in addition to the local police and DHS OIG investigation, the FBI also was conducting an investigation. Given the information released by ProPublica, that FBI investigation should include a civil rights investigation for color of law violations (that is, unlawful acts by CBP officials), and obstruction of justice, given the report of potentially falsified logs. Jurisdiction for such investigation would reside with the FBI’s McAllen Resident Agency, San Antonio Division.
The status and outcome of that FBI investigation is important and should not be delayed pending the separate DHS OIG process. The death of a child in federal custody must be subject to greater scrutiny than administrative measures alone. Not only is DHS’s border security, immigration, and law enforcement activity in need of greater internal oversight and accountability mechanisms, but there are certain circumstances where individual accountability is necessary to punish and deter wrongdoing. To be clear, this is a pro–law enforcement and pro-security argument. In order for law enforcement and homeland security professionals to maintain order and effectiveness in carrying out their lawful duties, individual instances of wrongdoing must be subject to meaningful accountability.
There should also be a public accounting of the results of the FBI investigation. As discussed here in the context of family separation, federal law provides that civil rights violations that take place while enforcing the law may also amount to federal crimes under Section 242 of Title 18. According to the ProPublica report, Vasquez had a fever, was administered medication, and then was returned to a holding cell, contrary to medical advice. The cell—visible in the video posted online by ProPublica—was akin to a prison cell, containing, apparently, only what appear to be cement block benches and a toilet area. The report alleges that a CBP officer recorded conducting multiple welfare checks during the night; however, the video shows none, and four hours of the video during which those checks purportedly took place were not provided by CBP to the local police.
We do not have any basis to know why the local police received an incomplete video, but the missing four hours of the video is beyond curious. It is potentially criminal. If efforts were taken to delete or sequester the missing four hours, that would constitute obstruction of justice. If individuals coordinated their efforts to shield that portion of the video from law enforcement investigators, then those individuals have potential legal exposure for conspiracy to obstruct justice.
In addition to the FBI’s criminal and civil rights investigation, there may be civil recourse for Vasquez’s’ family. The U.S. government may be subject to a wrongful death claim on the grounds that CBP agents negligently deprived Vasquez of proper medical care. Such claims are permitted by the Federal Tort Claims Act, which waives sovereign immunity for the U.S. government when its officers commit acts that would give rise to tort claims were they committed by private parties. (We discuss civil liability extensively with respect to family separation in the immigration context more broadly in a forthcoming scholarly article previewed here).
The death of a child in federal custody must be subject to greater scrutiny than administrative measures alone
A private institution with custody of a severely ill child would certainly be vulnerable to tort liability on facts similar to those reported about Vasquez’s’ situation. Before he was transferred to the Weslaco station where he died, Vasquez was seen by a nurse practitioner in McAllen. She administered ibuprofen and Tylenol and ordered Tamiflu. She recommended that Vasquez receive additional medical attention within two hours and that he should be taken to an emergency room if his symptoms persisted or worsened. According to ProPublica’s investigation, Vasquez was not seen again by a health care worker for about 18 hours, when another nurse practitioner, this time at Weslaco, administered Tamiflu but left no record of any other medical treatment or examination. The time lapse between these two medical interventions strongly suggests a breach of the basic duty of care that tort law places upon anybody who has taken physical custody of a child, making it impossible for anybody else to assist him with known medical needs.
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Official corruption and impunity, normally considered hallmarks of dictatorships and Third World states, have become huge problems in the U.S. under the Trump Administration. An emasculated Congress and feckless, complicit Article III Courts are major contributors to the arrogantly lawless performance of DHS under Trump.
