"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.
Lindsay Toczylowski Executive Director, Immigrant Defenders “ I always tell the new immigration attorneys at Immigrant Defenders Law Center to never forget just how stacked against our clients the odds are in immigration court.”
I always tell the new immigration attorneys at Immigrant Defenders Law Center to never forget just how stacked against our clients the odds are in immigration court. Today was a classic example.
Went in with a case that we have spent weeks on end prepping for, seeking asylum protection for our client. We extensively argued our case. Govt attorney waived arguments & had no filings for today, last filing they made in case was in 2020. Yet the judge found that despite a finding of past persecution the govt had rebutted the presumption of a well-founded fear of future persecution.
So the govt atty who didn’t make an argument, who didn’t file anything was found to have successfully rebutted our claims. We plan to appeal, but the imbalance of power in an immigration courtroom, even when someone has an attorney, is profound. Without an attorney it is inhumane.
At the end of the hearing the judge excused the ICE attorney so he did not have to stay through the oral decision. So we sat there, with our client wiping tears from his eyes, and received the decision. We took notes on its mistakes. We reserved the right to appeal.
And I felt this pit in my stomach knowing that my client was seeing his life flash before his eyes, knowing this put him in grave danger. And yet the ICE atty, one of the principal ppl responsible for putting him at risk, couldn’t even bother to stay to the end of the hearing.
Picture of the mural that sits across from one of the immigration courts in DTLA, which seems so fitting on today and so many days.
Mural
Grateful to my colleague Alvaro M. Huerta who was an incredible advocate for our client today.
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A very sad commentary on the “culture of denial” still prevalent at EOIR and Garland’s failure to address it head on. Seems like the ACC knew how the judge would rule in advance.
I actually remember a long-ago time at the USDOJ when a “win” was “when justice was done” not just “another denial and deportation notched.” As a few “old timers” might remember, I actually incorporated it into my “welcoming speech” to new INS trial counsel when I was the Deputy General Counsel/sometimes Acting GC at the “Legacy INS.” In a GOP Administration, no less!
Times have changed, I guess, to where a Dem Administration and a Dem AG function “below the Reagan line!” Interesting, yet depressing!
The IJ “excusing” the ACC from the oral decision — at least a violation of judicial etiquette, disrespectful, and unprofessional, if not marginally unethical — shows just where things stand in a system run by a former Federal Judge who has forgotten what justice and public service are all about — at least when it comes to those stuck in his dysfunctional and unprofessional “courts!”
I always insisted that both counsel be present for the delivery of an oral decision. If that were impossible, because of time constraints or a legitimate personal emergency, then the obvious solution was to either 1) issue a written decision, or 2) invite the parties to return another day to listen to the oral decision. A third option was to record it “in chambers,” and have a JLC or intern transcribe and edit it for issuance as a written decision. I actually noticed when the INS ACC was working on the files for the next case or “secretly” looking at an i-phone under counsel table while I was dictating the oral decision. While I didn’t mention it, it did “inform” my opinion of them as attorneys.
Unfortunately, I wouldn’t count on Garland’s Trump holdover BIA to correct the egregious injustices on the merits of this case. The appeals system is also “programmed to deny and deport” — just as Sessions and Barr constructed it!
One might have thought that a Dem Administration and a former Federal Judge would be interested in bringing due process, fundamental fairness, and decisional excellence to one of the most important Federal “Court” Systems — one they totally control! Not so! This is most disappointing and enraging, particularly for those practicing in the “skewed against the individual” mess that Garland tolerates and enables!
And, folks, these examples, including the outrageous miscarriage of justice and impartial judging described by Lindsay above, just cover a period since January 27, 2023, a mere 16 days ago — basically just the “tip of Garland’s deadly iceberg of injustice at EOIR!”
While numerous examples of unfairness and unprofessionalism at Garland’s dystopian EOIR have surfaced, they are “just the tip of the iceberg” masking the huge disaster lurking below where Garland and his lieutenants fear to go! Created by Uwe Kils (iceberg) and User:Wiska Bodo (sky). Creative Commons Attribution-Share Alike 3.0
The unprofessional, disgraceful performance of EOIR described above, and the inexcusable failure to “clean house,” bring in qualified expert judges and professional judicial administrators, and support and institutionalize competent expert judging at EOIR, as represented by Judge Burgie and some others, would be disgraceful in ANY Administration! Coming during a Democratic Administration that RAN ON A PLATFORM of ending xenophobic, extralegal, nativist-motivated abuses directed at asylum seekers (often of color), immigrants, and their courageous, dedicated attorneys is totally unacceptable!
Yet, Senate Dems have failed to haul Garland and his lieutenants before the Senate Judiciary Committee to be confronted by those abused on their watch and to answer for their abject failure to bring due process, fundamental fairness, best practices, and competent, expert judicial decision making to EOIR’s dystopian, dysfunctional, and outrageously unfair “faux courts!”
As Lindsay says, “I always tell the new immigration attorneys at Immigrant Defenders Law Center to never forget just how stacked against our clients the odds are in immigration court.” It does NOT have to be this way!
These are NOT life-tenured Article III judges! They are, as the DOJ is constantly reminding them, “DOJ attorneys.” GOP Administrations have demonstrated time and again the recognition that they have the power to “purge” judges who stand up for immigrants’ rights and due process and to “stack” the Immigration Courts against asylum seekers andimmigrants.
Garland has the power to do the opposite: “unstack” EOIR, bring in qualified judges and administrators who are recognized, respected experts in immigration law, human rights, and due process, and create a “model Federal Judiciary” and a source for future experienced, well-qualified Article III appointments.
In nearly two years of inept and dilatory “administration” of EOIR, Garland has failed to achieve, or indeed even attempt, these essential, long-overdue reforms. Indeed, so poorly has he performed on immigration, human rights, equal justice, and racial equity, that many dedicated immigration practitioners tell me that things are markedly worse now for due process and fair judging at EOIR than at the end of the Trump Administration.See, e.g.,https://immigrationcourtside.com/2022/09/21/-outrage-boils-over-at-merrick-garlands-milleresque-war-on-due-process-at-eoir-his-grotesque-mismanagement-of-immigration-courts-garland-might/, (Quoting Jason “The Asylumist” Dzubow: “But as it turns out, President Biden’s EOIR is far worse than President Trump’s. Indeed, the current level of callousness would make even Stephen Miller blush.”)
As Jason Dzubow would say, “It didn’t have to be this way!” But, sadly, and outrageously, it IS this way! Eventually, that’s something that the Democratic Party will have to answer for! Unfortunately, some of their “victims” are likely to be in their graves by then!☠️⚰️🤮
President Biden often correctly says that our democracy is in peril! Yet, one of the main places where it is most imperiled and disrespected is in HIS OWN Immigration Courts at EOIR. Why hasn’t the President led the “defense of democracy” by cleaning up the mess in his own house? Inexplicable!
BY MATTHEW LA CORTE, JACOB CZARNECKI for the Niskanen Center
JULY 20, 2021
On July 3, the Milwaukee Bucks defeated the Atlanta Hawks to advance to the NBA Finals, an accomplishment not seen in the city in almost 50 years. Leading the charge for Milwaukee is the six-foot, eleven-inch Giannis Antetokounmpo. The Greek-born star is one of the best basketball players in the world today and a global ambassador for the NBA.
The best foreign-born player competing on the league’s biggest stage is the latest apex in the decades-long internationalization of the NBA. The stellar results of that process carry broader conclusions for immigration policy. But first, it’s worth understanding the particular lessons drawn from Antetokounmpo’s compelling journey, which took him from statelessness to global stardom.
Stateless and vulnerable
In December 1994, Giannis Antetokounmpo was born in Athens, Greece, to Nigerian immigrants. His parents arrived in the country without legal status in search of better employment opportunities. While in Greece, Giannis’ family faced the dual threats of potential deportation back to Nigeria and anti-immigrant attitudes within Greek society.
As a teenager, Giannis avoided going out at night for fear of being attacked by members of Golden Dawn, a neo-Nazi party responsible for numerous assaults on immigrants.
Giannis’ parents also struggled to maintain long-term employment due to their legal status, meaning he and his brothers informally sold consumer goods such as watches and hats to keep their family afloat. However, at the age of 13, Giannis would begin to see his family’s fortunes shift dramatically, as Spiros Velliniatis, a coach in the Greek amateur basketball leagues, began scouting him and his brothers (three Antetokounmpo brothers now play in the NBA).
The coach offered to find Giannis’ parents better-paying jobs in exchange for the right to train the brothers full-time — a lifeline provided even though Giannis struggled to dribble a basketball when he began training.
Despite a late start, Giannis’ work ethic and natural gifts would quickly make him one of the most sought-after basketball talents in all of Greece. NBA scouts and executives flocked to the country to see the future star in action. Eventually, Antetokounmpo was drafted 15th overall by the Milwaukee Bucks at the age of 18.
This accomplishment was nearly undone by the realities of his immigration status, however. Greece does not offer birthright citizenship as it exists in the United States. Instead, Greece requires at least one parent to hold Greek citizenship for the child to receive it. Thus, without papers from Greece or Nigeria, Antetokounmpo was considered stateless — despite having lived in Greece his entire life.
His stateless status threatened to prevent Giannis from traveling to New York for the NBA draft, leaving him with limited options to proceed other than attempting to secure a Nigerian passport. Luckily, the Greek government stepped in to provide citizenship to their budding star before the draft, ensuring that Antetokounmpo would be identified as Greek on the world stage — not Nigerian.
The struggle of Antetokounmpo’s parents to provide for their family reveals the challenges of being undocumented, and even after many barriers had been overcome, this statelessness could have prevented him from ever realizing his immense potential. It is easy, then, to see how a lack of legal status impacts individuals and families without the benefit of a star athlete in their ranks — conditions that apply to millions in the United States.
But the story also highlights an upside of American immigration law. Many of the issues Antetokounmpo faced during his youth derived from Greece’s lack of birthright citizenship — a policy central to the U.S. immigration system since the passage of the 14th Amendment. His tribulations display the value of this policy in the American context, enabling children to live their lives unburdened by immigration decisions their parents made before they were even born.
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Update: On July 20, the Milwaukee Bucks defeated the Phoenix Suns to win the 2021 NBA Championship. Giannis Antetokounmpo became the sixth player in NBA Finals history to score 50 points and unanimously won the 2021 NBA Finals Most Valuable Player (MVP) award.
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Read the full story at the link.
The last time the Bucks won the NBA crown, I was an L-1 at UW Law. That great team was led by Kareem (then known as Lew Alcindor), Oscar Robertson (“The Big O”), and Bobby Dandridge (“Bobby D,” who later went on to help the Washington Bullets — now the Wizards — win their sole NBA title). All three are Hall of Farmers, as no doubt Giannis will be some day.
And, yes, the birthright citizenship clause of the 14th Amendment is one of the wisest provisions in American law! Not only does it prevent statelessness, but it also guarantees that even when Congress drops the ball and fails to legalize long-term American residents without documentation, there will not be generations of “underground Americans.” For the most part, the “next generation” become U.S. citizens through birth in the U.S. and our country goes on to grow and prosper. They also receive full political rights, rather than being disenfranchised and forced into an extralegal, exploitable fringe society.
🏀🇺🇸Congrats to Giannis and all the the Bucks, and Due Process Forever!
