"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.
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The initial report — on how and why immigrants are more optimistic — gives some great profiles and is a “must read” for those interested in getting beyond the myths and outright falsehoods about migration that dominate the airwaves and our political dialogue.
PWS
09-20-23
Asylum Seeker Killed in Guatemala after Omaha Immigration Judge Ordered Him Deported
Omaha is now the toughest court in the country for asylum seekers, MPI hosts discussion on immigration courts in crisis, interview with an immigration judge, and more.
Asylum Seeker Killed in Guatemala after Omaha Immigration Judge Ordered Him Deported austinkocher.substack.com • 1 min read
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New Research by AILA Reveals Anatomy of an Asylum Case + Online Event
Even the best attorneys require 50-75 hours over several months to complete an asylum case. The Biden admin’s attempts to speed up asylum cases may be ignoring this reality.
…see more
New Research by AILA Reveals Anatomy of an Asylum Case
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• 1st
J.D. Candidate at Georgetown University Law Center
3d •
Through my internship at the Florence Immigrant and Refugee Rights Project, I observed master calendar hearings in the detained docket in the Florence Immigration Court. I was back in Florence, Arizona, because the court itself is located within the barbed wire of the detention center. Observing the Florence Immigration Court emphasized how dehumanizing removal proceedings can be for detained immigrants. Master calendar hearings are often immigrants’ first interaction with the Court. To start, a guard brought a group of men in jumpsuits to the courtroom and lined them up. The judge read them their rights and then called them individually to discuss their case. Twice I witnessed the wrong person being brought into court where they sat through proceedings until the guards realized and switched them out for the correct person.
The vast majority of Respondents in removal proceedings are unrepresented. There is a blatant information imbalance in immigration court when the immigrant is unrepresented. Oftentimes, pro se detained immigrants do not have access to the resources represented or released Respondents have during their proceedings. Respondents may not know their legal options unless organizations like the Florence Project can speak to them before their hearing and provide them with pro se information packets or represent them. During the hearing, the men did not even have a pen and paper to take notes. Meanwhile, the immigration judge and government attorney have access to technology and a wealth of experience to pull from to make legal arguments.
This is just one example of many – my colleagues and I also observed translation issues and pushback against some men who wished to continue fighting their case. Above all, I’ll leave with this very simple observation: the judge and guards called each man up by his court docket number before his name. If we are to support and uphold the dignity of all people, we must do so especially in systems that look to strip it from them. Providing immigrants with access to a lawyer, if they’d like one, can ensure that people have access to information that allows them to make informed decisions about their case. The Florence Project is one of the organizations working tirelessly to expand access to representation throughout Arizona, and I hope to continue this work after graduating from Georgetown University Law Center next year. #EJAFellowUpdate | Equal Justice America
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Congrats to Lauren Iosue, and thanks for becoming a member of the NDPA! 😎 The scary thing: As an L-3, Lauren appears to have more “hands on” Immigration Court experience and a far deeper appreciation of the material, sometimes fatal, flaws in the EOIR system, than Garland and his other “top brass” in the DOJ responsible for operating and overseeing this tragic mess!
Why isn’t “real life” immigration/human rights experience representing individuals in Immigration Court were an absolute requirement for appointment to AG, Deputy AG, Associate AG, Solicitor General, and Assistant AG for Civil (in charge of OIL) in any Dem Administration, at least until such time as the Immigration Courts become an Article I Court removed from the DOJ?
30-years ago, when I was at Jones Day, we were budgeting a minimum of 100 hours of professional time for a pro bono asylum case! That was before the “21st century BIA” added more unnecessary, artificial technicalities to make it more difficult for asylum seekers to win. It’s not “rocket science!” 🚀
All Garland would have to do is reach back into his “big law” days at Arnold & Porter (“A&P”). He should pick up his cell phone and call Lucy McMillan, the award-winning Chief Pro Bono Counsel @ A&P. Ask Lucy what needs to change to get EOIR functioning as a due-process-focused model court system! Better yet, reassign upper “management” at EOIR, and hire Lucy to clean house and restore competence, efficiency, and excellence to his currently disgracefully-dysfunctional “courts!”
As Austin’s posts and the reports he references show, Garland’s indolent, tone-deaf, mal-administration of the Immigration Courts is a national disgrace that undermines democracy and betrays core values of the Democratic Party! How does he get away with it? Thanks to Austin, AILA, Lauren, and others exposing the ongoing “EOIR charade” in a Dem Administration!
As shown by recent “Courtside” postings about the “Tsunami” 🌊 of Article III “rejections” of lousy BIA decisions, throughout America, many, many more asylum cases could be timely granted with a properly well-qualified, expert BIA setting precedents and forcing judges like those in Omaha to properly and generously apply asylum law or find other jobs! Maximum protection, NOT “maximum rejection,” is the proper and achievable (yet unrealized) objective of asylum laws!
Asylum law, according to the Supremes and even the BIA is supposed to be generously and practically applied — so much so that asylum can and ordinarily should be granted even where the chances are “significantly less” than probable. See Matter of Mogharrabi, 19 I & N Dec. 439, 446 (BIA 1987).
The problem is that the BIA and EOIR have never effectively implemented and followed the Mogharrabi standard. In recent years, particularly during the Trump debacle, they have moved further than ever away from this proper legal standard while still giving it lip service! Clearly, the IJs in Omaha and other “Asylum Free Zones” are operating outside the realm of asylum law with deadly and destructive consequences. Yet, Garland, a former Federal Judge himself, permits it! Why?
The assumption that most asylum seekers who pass credible fear should ultimately lose on the merits is false and based on intentionally overly restrictive mis-interpretations and mis-applications of asylum law! It’s a particular problem with respect to asylum seekers of color from Latin America and Haiti — a definite racial dimension that DOJ and DHS constantly “sweep under the carpet.” Because of the extraordinarily poor leadership from EOIR, DOJ, and DHS, this “fundamental falsehood of inevitable denial” infects the entire asylum debate and materially influences policies.
A dedicated long-time “hands-on” asylum expert, someone who actually met some of the “Abbott/DeSantis busses,” said that over 70% of those arriving from the border had potentially grantable asylum claims. That’s a far cry from the “nobody from the Southern border will qualify” myth that drives asylum policy by both parties and has even been, rather uncritically, “normalized” by the media.
Fixing EOIR is a prerequisite to an informed discussion of immigration and development of humane, rational, realistic immigration policies. That would be laws and policies based on reality, not myths, distortions, and sometimes downright fabrications.
Competent representation is also an essential part of fixing EOIR. There are ways to achieve it that Garland is ignoring and/or inhibiting. See, e.g., VIISTA Villanova. No excuses!
PWS
07-17-23
Kids are among the many groups of refugees and asylum seekers ill-served by the Biden Administration’s policies and performance. “World Refugee Day 2023” is a rather grim reminder of America’s failure to live up to its obligations to the world’s most vulnerable!
Creative Commons License
https://apple.news/AnR6bRRRoSxm4nMAHyNOLXQ
A new Biden administration policy has dramatically lowered the percentage of migrants at the southern border who enter the United States and are allowed to apply for asylum, according to numbers revealed in legal documents obtained by The Times. Without these new limits to asylum, border crossings could overwhelm local towns and resources, a Department of Homeland Security official warned a federal court in a filing this month.
The new asylum policy is the centerpiece of the Biden administration’s border efforts.
Under the new rules, people who cross through a third country on the way to the U.S. and fail to seek protections there are presumed ineligible for asylum. Only people who enter the U.S. without authorization are subject to this new restriction.
The number of single-adult migrants who are able to pass initial screenings at the border has dropped from 83% to 46% under the new policy, the Biden administration said in the court filing. The 83% rate refers to initial asylum screenings between 2014 and 2019; the new data cover the period from May 12, the first full day the new policy was in place, through June 13.
Since the expiration of Title 42 rules that allowed border agents to quickly turn back migrants at the border without offering them access to asylum, the administration has pointed to a drop in border crossings as proof that its policies are working.
But immigrant advocates and legal groups have blasted Biden’s new asylum policy, arguing that it is a repurposed version of a Trump-era effort that made people in similar circumstances ineligible for asylum. (Under Biden’s policy, certain migrants can overcome the presumption that they are ineligible for asylum.) The ACLU and other groups have sought to block the rule in federal court in San Francisco, in front of the same judge who stopped the Trump policy years ago.
The new filing provides the first look at how the Biden administration’s asylum policy is affecting migrants who have ignored the government’s warnings not to cross the border.
“This newly released data confirms that the new asylum restrictions are as harsh as advocates warned,” said Aaron Reichlin-Melnick, policy director at the American Immigration Council. “The data contradicts conservative attacks on the rule for being too lenient. Less than 1 in 10 people subject to the rule have been able to rebut its presumption against asylum eligibility.”
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Read Hamed’s full story at the link.
None of the statistics cited in the article actually give a full picture, since the don’t account for 1) families, 2) children, and 3) those processed at ports of entry using the highly controversial “CBP One App.” Nor do they give insights into what happens to those denied access to the asylum adjudication system.
As Aaron Reichlin-Melnick points out, increased rejections of legal access are exactly what experts, including our Round Table of Former Immigration Judges, predicted in vigorously opposing the Administration’s ill-advised regulatory changes. See, e.g., https://immigrationcourtside.com/2023/03/27/⚔️🛡-round-table-joins-chorus-of-human-rights-experts-slamming-biden-administrations-abominable-death-to-asylum-seekers-☠️-proposed/.
In the article, DHS official Blas Nuñez-Neto babbles on about the wonders of mindless extralegal enforcement as a “deterrent.” In a classic example of disingenuous misdirection, Nuñez-Neto appears to suggest that “success” in implementing asylum laws should be measured in terms of the number of individuals denied access or discouraged from applying.
Actually, success in implementing asylum laws should be measured solely by whether 1) all asylum applicants regardless of status or where they apply are treated fairly and humanely; and 2) those eligible for asylum under a properly generous, protection-focused application of asylum laws are actually granted asylum in a timely manner complying with due process. By those measures, there is zero (O) evidence that the Biden Administration’s approach is “successful.”
Moreover, Nuñez-Neto’s comments and much of the media focus skirt the real issue here. Border apprehensions have decreased because asylum seekers in Northern Mexico appear to be “waiting to see” if the “CBP One App System” at ports of entry actually offers them a fair, viable, orderly way of applying for asylum. In other words, does the Biden Administration’s legal asylum processing system have “street credibility?”
So far, CBP One and DHS appear determined to “flunk” that test; the App continues to be plagued with technical and access glitches, and the numbers of appointments available is grossly inadequate to meet the well-known and largely predictable demand.
If the border lurches out of control in the future, it probably will be not the fault of legal asylum seekers. Rather, it will be caused by poorly-conceived and legally questionable Biden “deterrence policies” and the restrictionist politicians (in both parties, but primarily the GOP) who are “egging them on.” That is, an Administration unable to distinguish its friends from its enemies and unwilling to develop a comprehensive strategy for dealing with the inevitably of refugee flows by creatively and positively using and “leveraging” the ample (if imperfect) existing tools under our legal system.
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NEW YORK — On the fourth day of his new life in New York City, Antony Reyes set out from the opulent lobby of Manhattan’s Roosevelt Hotelwith an empty wallet and the address of a juice bar on Broadway possibly offering some work.
Reyes had been staying at the crowded hotel-turned-emergency service center, hunting odd jobs during the day along with other newly arrived Venezuelans who navigated the streets of midtown using “Las Pantallas”— the Screens (a.k.a. Times Square) as a landmark.
“I just want to work,” Reyes said in Spanish. “I didn’t come here to be a burden on anyone.”
Reyes, 23, was among the tens of thousands of migrants who rushed to cross the U.S.-Mexico border ahead of May 11, when the Biden administration lifted the pandemic policy known as Title 42. The largest group were Venezuelans, who have been arriving to the United States in record numbers since 2021.
Unlike previous waves of Latin American immigrants who gravitated to communities where friends and family could receive them, the most recent Venezuelan newcomers tend to lack those networks in the United States. Many have headed straight to New York, whose shelter system guarantees a bed to anyone regardless of immigration status.
City officials say they are housing more than 48,000 migrants across an array of hotels, dormitories and makeshift shelters that now spans 169 emergency sites.
New York has spent $1.2 billion on the relief effort since last summer. The ballooning costs have left Mayor Eric Adams feuding with local leaders upstate over who should take responsibility for the migrants, and he has also called out President Biden, a fellow Democrat, for not sending more aid.
Other U.S. cities are struggling with the influx too. Denver, Philadelphia and Washington — all cities with Democratic mayors — have received migrants bused from Texas as part of a campaign by Republican Gov. Greg Abbott to denounce Biden administration border policies. In Chicago, migrants have slept in police stations while awaiting shelter beds.
Officials in those cities are scrambling to find bed space and clamoring for more federal assistance. But the ad hoc nature of the humanitarian effort raises questions about the ability of New York City and other jurisdictions to receive and resettle so many newcomers.
The flow of Venezuelans crossing the southern border has dropped since the Title 42 policy ended, even as many continue arriving in cities in northern Mexico in hopes of reaching the United States. The Biden administration is tightening border controls and urging Venezuelans and others to apply for legal U.S. entry using a mobile app, while expanding the number of slots available for asylum seekers to make an appointment at an official border crossing.
The number of people requesting appointments, however, far outstrips supply.
The influx of migrants in New York has pushed the city’s total shelter population to 95,000, up from 45,000 when Adams took office in January 2022.
“We have reached a point where the system is buckling,” Anne Williams-Isom, deputy mayor for health and human services, told reporters at a news conference in late May.
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Read the rest of Nick’s & Joanna’s article at the link.
This Administration has been in office more than two years, with knowledge of the inevitable flow of asylum seekers, particularly from Venezuela and access to some of the best and most innovative human rights experts in the private sector.
Yet, this Administration has failed to 1) put in place an orderly nationwide resettlement system in partnership with the many NGOs and some localities “already in the business;” 2) construct “regional reception centers” to provide food, shelter, representation, and support to asylum seekers during the legal process, as recommended by many experts, and 3) restore functionality and timeliness to the legal asylum systems at USCIS and EOIR by a) cleaning out the “deadwood” (or worse) accumulated during the Trump Administration, and b) hiring experts, not afraid to properly use asylum and other laws to “protect rather than reject” and to replace the anti-asylum culture and legal regimes installed and encouraged at DHS and EOIR under Tump.
Additionally, most Venezuelans can’t be returned anyway, and the Administration’s apparent hope to “orbit” many of them to Mexico, a country far less able to absorb them than than the U.S., is ill-advised at best.
Consequently, updating TPS for Venezuelans and others, thus providing employment authorization and keeping them out of the already dysfunctional asylum system, should have been a “no brainer” for this Administration.
This is a truly miserable absence of creative, practical problems-solving by a group that ran on promises to do better. Given the shortage of affordable housing in NY and other areas, why not “replicate and update” the CCC, WPA, and other public works projects from FDR’s “New Deal?”
Give those arriving individuals with the skill sets opportunities to construct affordable housing for anyone in need, with an chance to live in the finished product as an added incentive! Let migrants be contributors and view their presence as an opportunity to be built upon rather than as a “problem” that can’t be solved.
Not rocket science! 🚀 But, evidently “above the pay grade” for Biden Administration immigration policy wonks!
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https://documentedny.com/2023/06/20/unaccompanied-minors-immigration-court-asylum/
The 10-year-old boy sat in a chair that was too big for him and he asked the immigration judge in Spanish if he could speak to the court.
“Please, don’t deport me,” the boy, Dominick Rodriguez-Herrera, pleaded into the microphone. “I want to stay with my brother.”
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Then he buried his head into his mother’s stomach as they embraced, tears welling in both their eyes. “Don’t cry,” his mother told him softly, with one arm around Dominick, and the other holding her two-month-old son who whined on her shoulder.
Also Read: The Central American Minors Program Struggles to Get Back on Its Feet
The family, from Guatemala, was at the Broadway immigration court in Lower Manhattan last week for an initial hearing in Dominick’s immigration case. Dominick had crossed the U.S.-Mexico border alone in March of 2022, and was designated as an unaccompanied minor.
Dominick’s mother, Nelly Herrera, told Documented the ordeal began when they were both kidnapped in Mexico and separated. She said Dominick escaped their captors and reached the U.S. border. Malnourished and thin from weeks of little food, he managed to squeeze through a wall into California, although she’s not sure where. He was only eight years old, and had no idea where his mother was.
“He doesn’t talk about all that a lot because he says it’s something he doesn’t want to be reminded of anymore,” she said.
After authorities helped Herrera escape her captors in Mexico, she and Dominick were reunited last year. Now, without a lawyer, they are fighting for a chance for Dominick to stay with her in the U.S.
At a time when immigration courts are struggling to manage the high volume of migrants coming to New York City, another section of the system is facing a high volume of deportation cases: those of unaccompanied minors – children who entered the U.S. when they were under the age of 18, without a parent. Many of them show up to court without an attorney, and advocates are concerned that there aren’t enough resources to reach all of them.
“We are definitely seeing an uptick in the numbers,” said Sierra Kraft, executive director of a coalition called the Immigrant Children Advocates Relief Effort (ICARE).
Kraft said she observed the juvenile docket several times this year and found hundreds of children had come to court without legal representation.
“There was a little two year old that was sitting there with a sponsor, and they had no representation and really no idea what to do next. So it’s a real crisis,” Kraft said.
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At a Senate hearing on the safety of unaccompanied migrant children in Congress last week, Lorie Davidson, Vice President of Children and Family Services at Lutheran Immigration and Refugee Service, testified that most unaccompanied children do not have an attorney to represent them.
“I do not know of any other circumstances in which a three-year-old would have to represent themselves in court. It is indefensible,” Davidson said at the hearing.
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Read Giulia’s complete article at the link.
Administrations of both parties have employed and disgracefully defended this clearly unconstitutional, due-process-denying process. The “low point” was probably during the Obama Administration when an EOIR Assistant Chief Immigration Judge infamously claimed that he could “teach asylum law to toddlers” — touching off an avalanche of internet satire. See https://www.aclu.org/video/can-toddlers-really-represent-themselves-immigration-court.
But, the Executive has had plenty of help from Congress and the Article III Courts, who both have failed to end this mockery of constitutional due process as well as common sense. It’s hard to imagine a more glaring, depressing example of failure of public officials to take their oaths of office seriously!
On the other hand, NY Immigration Judge Olivia Cassin, mentioned in the full article, is the right person for the job of handling the so-called “juvenile docket” at EOIR. A true expert in immigration and human rights laws, she came to the job several decades ago with deep experience and understanding gained from representing individuals pro bono in Immigration Court.
She is a model of what should be the rule, not the exception, for those sitting on the Immigration Bench at both the trial and appellate levels. Although AG Garland has done somewhat better than his predecessors in “balancing” his appointments, EOIR still skews far too much toward those with only prosecutorial experience or lacking ANY previous immigration and human rights qualifications.
Consequently, poor, inconsistent, and uneven judicial performance remains endemic at EOIR and not sufficiently addressed by Garland in his two plus years in office. Just another reason why Garland’s failing courts are running a 2 million case backlog and are unable to provide the nationwide due process, guidance, leadership, and consistency that EOIR was supposedly created to furnish.
Brilliant, well-qualified, and committed as individuals like Judge Cassin are, they are not going to be able to solve this problem without some help and leadership from above. Sadly, this doesn’t appear got be on the horizon.
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What a way to celebrate World Refugee Day, with a community listening section where we meet community leaders who every day make extraordinary efforts to join forces and serve Immigrants and Refugees. We’re not just hearing from Eva A. Millona Chief, USCIS Office of Citizenship, Partnership and Engagement and the Chief of Foreign Affairs for Foster America.
Thanks to Cristina España for keeping us connected with local government agencies and making visible the work of grassroots organizations, where El Centro Hispano works tirelessly. Without a doubt a great night!
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Way to go, Jenell. Encouraging to know that you are taking our legal obligations to refugees seriously, even if too many USG officials in all three branches aren’t! (Eva A. Millona of USCIS, mentioned in the post appears to be a rare exception among those in leadership positions within this Administration).
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PWS
06-21-23
Zolan Kanno-Youngs reports for the NYT:
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Eliza C. Klein, who left her position as an immigration judge in Chicago in April, said the latest increase in illegal border crossings will strain the understaffed work force as they prioritize migrants who crossed recently.
That will leave some older cases to languish even longer, she said.
“This is a great tragedy because it creates a second class of citizens,” Ms. Klein, who started working as an immigration judge in the Clinton administration, said of those immigrants who have been waiting years for an answer to their case. The oldest case Ms. Klein ever adjudicated had been pending in the court for 35 years, she said.
“It’s a disgrace,” Ms. Klein said. “My perspective, my thought, is that we’re not committed in this country to having a just system.”
While crowds of migrants continued to seek refuge in the United States after the lifting of Title 42, U.S. officials said the border remained relatively orderly. About 10,000 people crossed the border on Thursday, a historically large number, but that dropped significantly to about 6,200 on Friday.
Tens of thousands of migrants continued to wait in makeshift camps on both sides of the border for a chance to request sanctuary in the United States. The administration remained concerned about overcrowding; Border Patrol held more than 24,000 migrants in custody on Friday, well over the agency’s maximum capacity of roughly 20,000 in its detention facilities.
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Mimi Tsankov, the president of the National Association of Immigration Judges, said that to truly address the backlog, the Biden administration would need to do more than simply hire more judges. She said that the government should increase funding for better technology and bigger legal teams, and that Congress should reform the nation’s immigration laws.
“The immigration courts are failing,” said Samuel B. Cole, the judge association’s executive vice president. “There needs to be broad systemic change.”
. . . . .
Judge Charles Honeyman, who spent 24 years as an immigration judge and retired in 2020, said he came away from his job believing the United States would need to do a better job of deterring fraud while protecting those who would be harmed in their home country.
When handling an asylum case, Mr. Honeyman said he would assess the person’s application and examine the state of their home country by reading reports from the State Department and nonprofits. Many of the applicants lacked attorneys; he believes some cases that he denied might have turned out differently if the migrants had had legal representation.
In trying to root out fraud, he would compare a person’s testimony with the answers they had given to an asylum officer or Border Patrol agent.
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Read the full article at the link.
EOIR ABUSES ASYLUM SEEKERS — The Problem Goes Deeper Than The Number Of Judges: Quality & Culture Matter!
By Paul Wickham Schmidt
U.S. Immigration Judge (Retired)
Courtside Exclusive
May 16, 2023
While the NYT article notes that the majority of asylum cases are eventually denied on the merits, this data is often presented in a misleading way by the Government, and unfortunately, sometimes the media. According to TRAC Immigration, during the period Oct 2000 to April 2023, approximately 43% of asylum seekers who received a merits decision were granted asylum or some other type of relief. Approximately 57% were denied. https://trac.syr.edu/phptools/immigration/asylum/
Even in an overall hostile system, where individuals are often required to proceed without lawyers, and grant/denial rates among Immigration Judges vary by astounding levels (so great as to present prima facie due process issues), asylum seekers succeed on the merits of their claims at a very respectable rate. In a properly staffed and administered system where the focus was on due process and fundamental fairness for individuals, that number would almost certainly be substantially higher.
Moreover, the data suggests that toward the end of the Obama Administration and during the entire Trump Administration, the asylum system was improperly manipulated to increase denials.
For instance, in FY 2012, approximately 55% of asylum claims decided by EOIR on the merits were granted. https://trac.syr.edu/immigration/reports/306/. While there was no discernible worldwide improvement in human rights conditions in the following years, IJ asylum grant rates cratered during the Trump years, reaching a low of 29% in FY 2020, barely half the FY 2012 level. https://trac.syr.edu/immigration/reports/668/#:~:text=While%20asylum%20grant%20rates%20declined,after%20President%20Biden%20assumed%20office.%20That%E2%80%99s%20a%20decline%20of%20nearly%2050%%20since%20the%20FY%202012%20high.
I think there are three reasons for the precipitous decline in asylum grant rates, largely unrelated to the merits of the claims. First, Attorneys General Jeff Sessions and Bill Barr overruled some of the leading administrative precedents supporting grants of asylum. In the process, they made it crystal clear that they considered Immigration Judges to be their subordinate employees within the political branch of Government and that denial, deportation, and assistance to their “partners” at DHS Enforcement (actually DHS is a party before EOIR, not a “partner”) were the preferred results at EOIR.
Second, in greatly expanding the number of Immigration Judges, Sessions and Barr appointed almost exclusively from the ranks of prosecutors and government attorneys, even elevating an inordinate number of individuals with no immigration and human rights experience whatsoever. Not only were well-qualified individuals with experience representing individuals in Immigration Court largely passed over and discouraged from applying, but some of the best Immigration Judges quit or retired prematurely as a matter of conscience because of the nakedly anti-immigrant pro enforcement “culture” promoted at EOIR.
Additionally, the nationwide appellate court and precedent setter, the BIA, was expanded and “packed” with some Immigration Judges who denied virtually all of the asylum cases coming before them and had reputations of hostility to the private bar and asylum seekers. Remarkably, Attorney General Garland has done little to address this debilitating situation at the BIA.
Third, since the latter years of the Obama Administration, when a vastly overhyped “border surge” took place, political officials of both parties have improperly “weaponized” EOIR as a “deterrent” to asylum seekers, focusing on expeditious denials of asylum rather than the due process and expert tribunal functions the agency was supposed to serve. The result has been a “culture of denial and deportation” with particular emphasis on finding ways to “say no” to women and individuals of color seeking asylum.
The NYT Article also mentions that asylum merits decisions require a higher standard of proof than “credible fear determinations.” That’s true. But the suggestion that the standards are much higher is misleading. In fact, the standards governing merits grants of asylum before the Asylum Office and EOIR are supposed to be extremely generous.
In the seminal case, INS v. Cardoza-Fonseca, the Court said that “well-founded fear” is a generous standard, one that could be satisfied by a 10% chance of persecution. In implementing this holding, the BIA found in Matter of Mogharrabi that asylum could be granted even where the chances of persecution were substantially less than probable.
There is as also a regulation, 8 C.F.R. 208.13, issued under the Bush I Administration, that creates a rebuttable presumption of future persecution based on past persecution.
The problem is that none of these generous and remedial provisions relating to asylum has ever been properly, consistently, and uniformly applied within EOIR. As someone who during my time on the bench took these standards to heart, I found that a substantial majority of merits asylum cases coming before me could and should be granted under a proper application of asylum law.
Consequently, I am skeptical of judges who deny virtually all asylum claims. Likewise, I question the claims by political officials of both parties who pretend, without actual knowledge, that almost all asylum applicants at the border are “mere economic migrants” who deserve to be quickly and summarily removed.
Actually, under some circumstances, severe economic hardships can amount to persecution. Moreover, under the legally required “mixed motive” analysis for asylum, an economic aspect does not automatically obviate other qualifying grounds.
So, at its root, “credible fear” is actually an even more generous application of what is already supposed to be (but often isn’t in reality) a very generous standard for asylum. The alleged “disconnect” between the number of individuals found to have credible fear and the number actually granted asylum on the merits appears to be more a function of defective and overly restrictive decision-making at EOIR than it is of unjustified generosity of Asylum Officers screening for credible fear. It’s also important to remember that at the credible fear stage, individuals haven’t had time to marshal the substantial corroborating evidence eventually required (some would say unrealistically and unreasonably) in formal merits asylum hearings before EOIR.
Finally, just aimlessly increasing the number of Immigration Judges, without solving the systemic legal, logistical, management, quality control, training, and “cultural” problems infecting EOIR creates its own set of new problems.
Recently, a veteran practitioner before EOIR wrote the following:
In about eleven years, our local DMV went from twelve (12) judges in Baltimore and Arlington in 2012 to a hundred (100) judges in 2023 (8 BAL, 18 HYA, 30 WAS, 9 FCIAC, 14 RIAC, 21 STE). That’s an increase of 733.33%. This seismic expansion has resulted in many attorneys being overscheduled for individual hearings, which has an adverse effect on our clients, our ethical obligations, due process, and mental health.
Well-prepared attorneys, many serving pro bono or “low bono,” are absolutely essential to due process and fundamental fairness in Immigration Court, particularly in cases involving asylum and other forms of protection. For EOIR to schedule cases in a manner that does not take into consideration the legitimate needs and capacities of those practicing before their courts is nothing short of malpractice on the part of DOJ leadership.
There is a silver lining here. The EOIR judicial hiring program gives NDPA stars a chance to get on the bench at the retail level level, bring much needed balance and perspective, and to develop the credentials for future Article III judicial appointments. Since change isn’t coming “from the top,” we need to make it happen at the “grass roots level!” Keep those applications coming!
🇺🇸Due Process Forever!
PWS
05-16-23
https://reason.com/2023/01/26/a-historic-refugee-crisis-miscast-as-a-border-emergency/
. . . .
The Biden administration fell into the trap of letting its opponents define the terms of the debate. . . . .
Arranging care for asylum seekers would have been necessary even with a better metric. However, managing the humanitarian flow would have been easier if the Biden administration had allowed those seeking asylum to apply in an orderly, timed fashion at a lawful port of entry.. . . .
. . . .
Members of Congress and others who oppose the Biden administration’s parole program raised no objections to the Trump administration dismantling the U.S. refugee program. They also have not advocated for any other legal way for people escaping oppressive governments to enter America. Without paths to enter lawfully, it is inevitable that more people will cross into the U.S. illegally.
. . . .
Critics of the increase in CBP encounters argue, without much evidence, that individuals would not come to America if U.S. immigration policy were harsher—in other words, if Biden were more like Trump.
Despite what his supporters assert, Trump’s policies did not reduce illegal immigration or discourage people from applying for asylum. Pending asylum cases rose by nearly 300 percent between FY 2016 and FY 2020 (from 163,451 to 614,751), according to Syracuse University’s Transactional Records Access Clearinghouse. Apprehensions at the southwest border (a proxy for illegal entry) rose more than 100 percent between FY 2016 and FY 2019 (from 408,870 to 851,508). Apprehensions fell for several months at the start of the COVID-19 pandemic, but by August and September 2020, apprehensions returned to the approximate level of illegal entry for the same months in FY 2019.
Providing individuals with legal ways to work or seek protection in America is the only viable way to reduce illegal immigration. Treating people humanely is not a sign of weakness. Allowing for orderly entry is a smart policy consistent with America’s best tradition as a nation of immigrants and refugees.
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I highly recommend reading Stuart’s complete article at the link. Members of the so-called “mainstream media,” whose stories often do not accurately reflect the legal right to apply for asylum at the border, which has been shamefully ignored and/or abridged by both Trump and Biden, would also do well to read Stuart’s accurate description of our needlessly screwed up administration of refugee and asylum laws. Most media articles also fail to accurately distinguish between those (often vainly) seeking just to exercise their legal right to apply for asylum at the border and other individuals who might irregularly cross the border.
The real, oft-ignored, problem here is that the Trump Administration dismantled the legal refugee programs established by the Refugee Act of 1980. Then, they unlawfully “repealed” asylum law at the border. Worse yet, Congress and bad GOP appointed Federal Judges let them get away with this outrageously illegal and highly counterproductive conduct (at least to date).
By the time the Biden Administration took office, the real “solvable” part of the problem at the Southern Border was well defined by experts: The US Government’s intentional violation of laws protecting refugees and legal asylum seekers and guaranteeing the latter fair and timely assessment and adjudication of their claims.
The Biden Administration could and should have “hit the ground running” with an aggressive program (and defense thereof) of restoration of the rule of law for refugees, who could and should have been processed in larger numbers outside the U.S. in Latin America and the Caribbean, combined with a restoration of the rule of law for asylum seekers at the, border, led by a reformed EOIR and USCIS Asylum Office, both staffed with true asylum experts!
Instead, the Biden Administration, after an “initial burst” of promising yet highly ineffective rhetoric (see, e.g., “reforms” of gender-based asylum), gave immigration, human rights, and the interconnected problem of racial justice, low priority. Instead of seeking and employing dynamic, progressive, problem-solving leaders, with new and creative ideas, they relied largely on “bureaucratic retreads” who showed little interest in or affinity for taking the bold, often courageous, actions necessary to address the festering humanitarian crisis at the border!
Too many of these individuals seemed to accept the false GOP nativist proposition that elimination or unduly restrictive applications of asylum law were the best way to “deter” unlawful entries, and that we didn’t want to “encourage” refugees from Latin America or the Caribbean by recognizing the legitimacy of their claims and/or running robust, realistically large “overseas” refugee programs for them.
Moving refugees and asylum seekers into an orderly, functioning, legal process at or away from the border would also allow CBP to focus resources on individuals who are not seeking legal refugee in the U.S. Because of the inaccurate and misleading statistics used to “count” border activity, as accurately described by Stuart in his full article, we actually have little idea how large a “cohort” of individual border arrivals legal asylum seekers represent.
“Mixing apples and oranges” certainly plays directly into the hands of GOP restrictionist/nativists who love to lump them all together under the dehumanizing and intentionally demeaning “false rubric” of “illegals.” There is nothing “illegal” about appearing at the U.S. border and asking for refuge under our domestic laws and international conventions to which we are party!
What is “illegal” is our Government suspending legal processing for asylum, and also, even for those chosen under largely arbitrary criteria for processing, delivering a badly flawed biased process that is neither fair nor timely. Also, mixing those merely seeking a chance to state their legal case for asylum with those seeking entry for other purposes certainly “dilutes” the enforcement resources and effectiveness of CBP in preventing “real” unlawful entries.
Instead, the Biden Administration settled into an inept “Miller Lite” posture of utilizing modified and supposedly “humanized” versions of Trump’s illegal policies. As pointed out by Stuart, the Biden Administration also failed miserably to anticipate and establish a Federally-led and funded program for humane resettlement of asylum seekers.
This played right into the hands of White Nationalist GOP pols like Abbott, DeSantis, Ducey, Paxton, Cruz, Cassidy, Vance, Biggs, McCarthy, Jordan, et.al. At the same time, in one of the dumbest moves in recent political history, they left Democratic leaders in locations victimized by the GOP “bussing stunts” in the lurch and without support, thereby driving an entirely unnecessary “wedge” and “stress point” into the “Democratic coalition.”
There might be no “easy and perfect” solution for managing refugee situations. Refugees and other types of “forced migrants’ have been with us since the beginning of human history. They will continue to exist long after the current crop of nativist politicos and “deterrence-only-focused” bureaucrats are gone.
Yet, with all this historical knowledge, the so-called “Western Democracies” failed miserably in protecting refugees from Hitler’s planned genocide in the years leading up to and including WWII. The 1951 UN Convention and later Protocol were supposedly “never again” responses to that deadly failure.
Yet, today, politicians and leaders who should know better seem determined to ignore the lessons of history and recreate the moral and humanitarian failures of the past. One can only hope that the NDPA and the “new generations” can get by the failures of today and treat refugees fairly, humanely, and in recognition of the substantial benefits that most bring to those nations fortunate enough to be “receiving” countries. The future of our world may depend on it!
PWS
01-31-23
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Quick takes:
Earlier this year, I had predicted that Garland would top the 2 million backlog mark by the end of August 2022. https://wp.me/p8eeJm-7dT
I was off by 3 months, as it actually took him until the end of November 2022 to achieve this negative landmark.
Nevertheless, some things are clear: This system is “beyond FUBAR!” It needs professional leadership, a new appellate board, better judges, better training, better utilization of the private bar, smarter, more creative and innovative practices, and authority to “rein in” in out of control ICE Enforcement. All the same things experts said were needed back at the time of Biden’s election! Ignoring expert advice has resulted in just the continuing, mushrooming disaster at EOIR and in our legal system that experts predicted!
Over two years, Garland has shown that he is not the person for the job. Nor have his political subordinates shown any aptitude for addressing the festering management, legal, and quality control problems @ EOIR!
Experts and advocates should be pushing the Administration and Dems in Congress for a change in leadership at the DOJ! Every day of failure means more backlog, more injustice, more frustration, more lives endangered, and a growing threat to American democracy — from those sworn to protect and uphold it, but aren’t getting the job done!
PWS
12-16-22
Fresh off a recent disaster where they illegally released the names of thousands of vulnerable asylum seekers in the U.S., the DHS announced another major data screw-up. This time it concerned so-called “alternatives to detention.”
ICE has informed TRAC that Alternatives to Detention (ATD) data previously released by the agency on several occasions between August 2022 and December 2022, as well as data previously released for FY 2022, was inaccurate. TRAC therefore urges caution in interpreting the latest numbers ICE has just posted.
The data ICE has been posting for months showed that use of GPS ankle monitors had been increasing which TRAC previously reported. ICE now reports this is incorrect, that ankle monitor usage is in fact way down, not up. Adding to the confusion, ICE frequently posts data, replaces it, and replaces it again without any indication that changes have taken place, or which set are the “correct” numbers.
ICE data reporting problems extend beyond the GPS ankle monitor usage. ICE’s new data for FY 2022 significantly revised the previously numbers for every single one of the ATD reported technologies—not only GPS, but also SmartLINK, and VoiceID, as well. Not only did the use of GPS monitors drop, but the public now learned that one-in-nine (11%) were not being monitored with the use of any technology at all! Also materially revised were the costs for technology during FY 2022 and average lengths in the program, as well as what was happening in a substantial number of local AOR offices across the country.
So, instead of ankle-monitor use increasing, as previously reported, it substantially decreased: The polar opposite. Yet, by the time this “correction” surfaces, media reports and sometimes even actions based on the bogus data have already taken place. Often, the “belated truth” becomes “back-page news,” if news at all.
Let’s be clear. These aren’t minor “rounding errors” or “adjustments or corrections” that don’t materially affect the picture painted by the original “data dump.” They are major screw-ups that basically “change the answer from A to B or from Yes to No.”
This the just the latest stunning indication of management failure within the Biden immigration bureaucracy. It goes along with “task avoidance” on very achievable fixes at the border, endless backlogs, completely dysfunctional Immigration Courts, abandonment of the rule of law, and lack of any overall values-based legal strategy when it comes to immigration, human rights, and racial justice.
You can read the complete TRAC report on the latest DHS bungling here: TRAC DHS Data Wrong . Just “warning” folks not to trust DHS data isn’t enough. In a data-riven world, the public deserves and requires competent management and accurate data from our immigration agencies!
PWS
12-15-22
https://trac.syr.edu/whatsnew/email.221129.html
As experts predicted, the Biden Administration’s poorly-conceived and ineptly implemented “expedited asylum dockets” have sharply diminished favorable outcomes and due process for asylum seekers in a broken system already stacked against them. This preventable disaster is particularly acute for the too many unrepresented applicants who have little chance of relief in a system designed to reduce them to dehumanized denial statistics.
But, the real “sleeper” here is that over three quarters of the cases “referred” by the Asylum Office are GRANTED by the Immigration Courts. This shows a gross “over-referral” of cases to the Immigration Courts that could and should be expeditiously granted at the Asylum Office. The Administration’s regulation change to give Asylum Officers more authority to grant asylum at the first instance has not had the positive effects it should have.
Of course, the Administration’s unforgivable failure to “leverage” asylum grants for recently arrived refugees cripples their border response and creates fodder for GOP White Nationalist xenophobes. It builds unnecessary backlogs and promotes “aimless docket reshuffling” in Garland’s disgracefully dysfunctional and hopelessly backlogged EOIR!
But, beyond that, this statistic also projects that a large part of EOIR’s largely self-inflicted “asylum backlog” consists of clearly grantable, represented “affirmative” asylum cases referred by the Asylum Office. Rather than working with the private bar to identify and prioritize these cases in an orderly, professional manner for expedited grants, Garland has done the exact opposite!
The problem of mass over-referral to EOIR by the Asylum Office is hardly “today’s news.” Indeed, in 2016, the year I retired from the bench, 83% of the “affirmative” referrals by the Asylum Office were GRANTED in Immigration Court! https://www.statista.com/statistics/234398/affirmative-asylum-case-grant-rate-by-us-immigration-courts/ And, that was with a BIA setting precedents that were generally, and quite incorrectly, unfavorable to asylum seekers. Of course the latter problem has also gotten worse in the intervening years.
As I have pointed out before, despite two years to reform and improve the asylum system at both DHS and EOIR, the Biden Administration appears woefully unprepared to reinstitute the rule of law for asylum seekers on December 22 in a manner that is fair, efficient, reasonable, and humane. Failure to solve the long-festering problem of under-granting asylum and over-referring cases to EOIR is just part of the overall ineptitude, lack of dynamic leadership, absence of vision, and, frankly, moral vapidity of the Biden Administration on human rights and racial justice.
Failure to timely and competently grant asylum at the first instance is a major driver of disorder and backlogs at both USCIS and EOIR. That’s basically “Good Government 101,” apparently not required to work on immigration in this Administration.
The process requires close coordination and cooperation with NGOs and the pro bono bar for representation (essential for due process), quick identification and granting of strong cases, and orderly resettlement (in place of the random bussing by GOP grandstanding governors curiously empowered by the Biden Administration’s lack of leadership).
But, if there is a plan by the Administration to involve the private sector in a positive manner, it’s certainly a secret. That’s tragic, as the imbalance in experience, expertise, and competence between the private bar, where it resides, and the Administration, where it doesn’t, has reached incomprehensible levels!
I always hope for the best, even when it’s against the odds. But, if disaster and massive human rights violations unfold on and after Dec. 22, expect the Biden Administration, like Trump, to blame everybody but themselves.
The job of creating order out of disorder is likely to fall primarily on NGOs and advocates at or near the border. As always, the first priority is saving as many refugee lives as possible. But, the next priority is to hold the Biden Administration accountable and not let them shift the blame for their self-created disorder at the border and the predictable, yet avoidable, mess they appear determined to create!
PWS
12-02-22
https://trac.syr.edu/reports/702/
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If someone NOT Merrick “What Me Worry” Garland (the “Alfred E. Neumann of Biden’s immigration bureaucracy”) took a look at the data, one major thing would jump out! There are likely more than 400,000 refugees entitled to asylum sitting in Garland’s 770,000 case asylum backlog (52% x 770,000). (The asylum backlog at EOIR is a “subset” of Garland’s largely self-inflicted, ever mushrooming, nearly 2 million case EOIR backlog — more judges have produced more backlog, so that’s likely NOT the answer here).
And, this is in a system currently governed by skewed anti-asylum BIA “precedents” and a chronic “anti-asylum culture” actively encouraged and fed by the Trump Administration. In a properly staffed and functioning court system with qualified, due-process oriented, judges and an expert BIA that enforced some decisional consistency and properly and generously interpreted asylum law, a “grant rate” of 75% or more would be a plausible expectation.
Given the obvious (and I would argue intentional) lack of reliable data on how a legitimate asylum system, one consisting at all levels of judges with well-recognized expertise in asylum law and human rights, and overseen by competent, due-process-oriented judicial administrators, might function, the 75% figure is just an “educated guesstimate.” But, it matches my own personal experience over 13 years on the bench in the (now defunct) Arlington Immigration Court.
It’s also in line with my recent conversations with the head of one of the largest NGOs in the DMV area involved in meeting busses and counseling those “orbited” from the Southern border by the racist/nativist GOP Govs that Biden, curiously, has chosen to run our domestic refugee resettlement program. This is a person who, unlike Garland, his lieutenants, and most of the other politicos and nativist blowhards participating in the “border travesty,” actually spent years of a career representing individuals in Immigration Court. They estimated that “at least 70%” of the “arriving bus riders” had very viable asylum claims.
This is a far cry from the nativist, restrictionist myths promoted by both the Trump and Biden Administrations — obviously to cover up their gross human rights violations in knowingly and illegally returning hundreds of thousands of legal refugees to danger zones! Many human rights experts would consider such gross misconduct to be “crimes against humanity.” Consequently, it doesn’t take much imagination to see why self-interested scofflaw officials like Garland, Mayorkas, and White House advisors seek to manipulate the system to keep the asylum grant rates artificially low while eschewing proper, realistically robust use of the overseas refugee program to take the pressure off the border — by acting legally rather than illegally!
Almost all the EOIR asylum backlog consists of “regular docket” (I use this term lightly with EOIR where “normalcy” is unknown) cases. Those are refugees who have had time to get lawyers, adequately prepare, document their cases, but are stuck in Garland’s chronically dysfunctional system. Consequently, they are “denied by delay” legal immigration status, a chance to get green cards, and to eventually qualify for citizenship. The American economy is denied an important source of legal workers who should be part of our permanent workforce and well on their way to full participation in our political system and society!
An expert looking at this system would see a “golden opportunity” to move most of the backlogged “easily grantable” asylum cases out of the system with stipulated grants or short hearings (the kind you actually might be able to do 3-4 a day without stepping on anyone’s due-process rights or driving the private bar nuts). These cases would also avoid the BIA’s appellate backlog, as well as eliminating unnecessary workload in the U.S. Circuit Courts (which already have their own inconsistency, rubber stamp, and bias issues in the human rights/racial justice area that seem to be getting worse, not better).
Knocking 400,000+ cases off the backlog wouldn’t completely solve Garland’s 2 million case backlog problem — only a complete “house cleaning” at EOIR, replacing many of the current bureaucrats with competent leaders and expert Immigration Judges well-versed in asylum law, will do that. But, cutting EOIR’s backlog by 20% (and the asylum backlog by over 50%) without stomping on anyone’s rights, while bolstering much-needed legal immigration, and harnessing the strengths of the private/pro bono bar, is nothing to “sneeze at!” That’s particularly true in comparison with Garland’s two years of mindless “designed to fail” gimmicks and astounding mismanagement, which have produced exactly the opposite results!
How bad has Garland’s leadership been at on human rights, due process, and racial justice at DOJ. A number of seasoned asylum practitioners have told me that today’s EOIR, also suffering from a tidal wave of Garland’s “Aimless Docket Reshuffling” — is actually significantly worse than it was under Trump! That’s right, Garland’s tone-deaf incompetence has exceeded the disorder and systemic unfairness caused by overt xenophobia, anti-asylum bias, misogyny, “dumbing down,” and enforcement-biased “weaponization” of the Sessions/Barr years.
As for Dr. Kocher’s cogent observation that input from the Immigration Judges who actually decide these cases is a “missing ingredient,” good luck with that, my friend! Perhaps understandably in light of his unseemly failures at EOIR, Garland has taken EOIR’s traditional opaqueness and “muzzling” of Immigration Judges to new heights — even barring their participation in CLE events aimed at improving the level of practice before his courts.
Apparently, “studied incompetence” in a Democratic Administration can be even worse than the “malicious incompetence” of the Trump Kakistocracy — at least where immigrants rights/human rights/racial justice/ women’s rights are concerned at EOIR. That’s an astounding observation! One that I actually never thought I’d hear from practitioners!
The only way for human rights and racial justice experts and advocates to “communicate” with Garland in his “ivory tower” is to ‘“sue his tail” in court! Judge Sullivan’s recent opinion finding Title 42 illegal incorporates the very facts and law used by human rights experts and advocates in years of fruitless pleading and begging Garland to “cease and desist” his support for unlawful conduct and “just follow the law.” The latter seems like a modest “no-brainer” request to a guy once nominated by an Dem President for the Supremes.
Waiting for Merrick Garland to fix the mess at EOIR to provide even a bare minimum of due process and rational administration is like waiting for the guy pictured below. Frustrated and “Garland-weary” as they might be, human rights advocates should take it to heart and act accordingly!
PWS
11-17-22
https://trac.syr.edu/immigration/reports/judgereports/
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NOTE: Does not account for: IJs no longer on the bench; IJs appearing in more than one location; differences among detained, non-detained dockets; profiles of high and non-high-denying courts excluded locations with fewer than four IJs listed. No guarantee of accuracy for my “hand count” — but, in accordance with the old government motto, “I did the best I could under the circumstances.”
PWS
10-28-22
Let private citizens sponsor refugees
By Janine Prantl and Stephen Yale-Loehr
New York Daily News
Oct 15, 2022
Every fall, the U.S. president sets a refugee ceiling — the maximum number of refugees that may be resettled annually to the United States. For the new fiscal year that started Oct. 1, President Biden plans to resettle up to 125,000 refugees. Because of dramatic cuts to the refugee program during the prior administration, that goal will be hard to meet. A year ago, Biden set the same target, but more than 100,000 refugee slots went unused.
Historically, only the U.S. government, working with international refugee agencies and nonprofits, has determined which refugees will be admitted to the United States. That’s a mistake. To meet its goal of admitting 125,000 refugees this fiscal year, the United States should also promptly allow private sponsorships of refugees.
In February 2021, Biden issued an executive order to rebuild our refugee program, including through private refugee sponsorships. Subsequently, the State Department announced plans to start a pilot program, but the launch has been delayed. Over a year after the first announcement, and close to the end of 2022, the State Department has not decided on the funding of prospective partners or issued guidelines on the pilot. The clock is ticking.
Several countries, including Canada, Australia, Argentina, Germany, Ireland, New Zealand, the United Kingdom and Spain, already allow private sponsorships of refugees. Under private sponsorships, individuals and community groups collaborate to provide financial, emotional, and practical support for refugees. Some countries also empower sponsors to nominate specific refugees to enter and stay in their country.
Canada’s experience shows that private sponsorships can work. A 2020 study confirmed that privately-sponsored refugees are more likely than government-sponsored refugees to be working within the first year after entering Canada, with an employment rate at 90% for men and 71% for women. Findings from Canada also suggest that privately-sponsored refugees are more likely to stay at their initial destinations and private sponsorships could contribute to geographic dispersal of resettled refugees.
Americans are already engaged in private sponsorships for Afghans and Ukrainians through the Sponsor Circles initiative. This initiative supports Americans who decide to become sponsors by assisting them in the application process, offering temporary housing credits through Airbnb.org, as well as ongoing expert guidance and other sponsor tools and resources. More than 123,000 Americans have applied to financially sponsor Ukrainians, and over 87,000 Ukrainians have been granted permission to travel to the United States. The number of arrivals will likely exceed 100,000 by the end of 2022.
While technically most Ukrainians and Afghans have not entered the United States as refugees, lessons learned from the Sponsor Circles initiative could help establish a formal private refugee sponsorship model. Because most Ukrainians enter the United States under parole power, they can be authorized for travel in as little as two weeks. However, prospective sponsors have recently reported longer processing times.
To transform private sponsorships from an emergency one-time program to a formalized program where beneficiaries enter as refugees, with access to long-term residence and citizenship, the backlog issue becomes even more concerning. Current tests of 30-day streamlined visa processing for Afghans in Doha could be expanded and serve as a role model for both parolees and refugees. Moreover, to mobilize private refugee sponsors and enable them to prepare, the U.S. government needs to move forward quickly and specify a program design for private refugee sponsors, including financial requirements, sponsorship time commitments, and concrete sponsor responsibilities.
Once a private refugee sponsorship program gets launched, sponsors will have to accomplish challenging tasks. They will have to deal with language barriers, find affordable housing and help new refugees apply for public benefits. For such a process to work, it is important to set up communication streams between private refugee sponsors and existing refugee resettlement agencies.
Public-private partnerships work in other areas. For example, they have become an increasingly popular way to upgrade infrastructure and address the challenges of climate change. By incorporating a private refugee sponsorship model, the U.S. government can supplement its own efforts to admit 125,000 refugees this fiscal year.
More importantly, private refugee sponsorships would allow Americans to participate directly in welcoming refugees and facilitating their successful integration. Experience in the United Kingdom shows that private sponsorship can be a powerful tool in expanding communities’ understanding and capacity for welcoming newcomers. It can reduce fears about others more generally, change working practices to make them more inclusive for diverse populations, and bring new perspectives into relatively homogeneous communities. Involving U.S. citizens in the immigration process could thus be a way to dampen the current heated debate about immigration and allow Americans to see the mutual benefits of immigration.
Janine Prantl is an immigration postdoctoral associate in the Cornell Law School Immigration Law and Policy Research Program. Stephen Yale-Loehr is professor of immigration law practice at Cornell Law School.
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Lots of creative ideas out here on how to improve our broken refugee and asylum systems! But, from those in charge of migration policy in the Biden Administration, not so much!😢
No, they are stuck in reverse. A small-time “overseas” refugee program for Venezuelans (24k “slots” for a refugee crisis that has generated more than 6 million refugees)🤯; a heavy dose of cruel and discredited “Stephen Miller Lite” Title 42 for those who exercise their legal right to apply for asylum at or near the border 🤮; more “due process free” illegal returns to abusive conditions in Mexico☠️.
Perhaps inadvertently, a recent NBC Nightly News report on the border mentioned a widely ignored fact. It pictured and described desperate Venezuelans patiently waiting in line to turn themselves in to CPB to exercise their legal rights to apply for asylum and other protections in the U.S. That’s right — “turn themselves in!”
This is NOT real law enforcement, nor does it present a security crisis! Nor are the oft repeated “record numbers” of border “apprehensions” legitimate!
Since individuals are often returned to Mexico with neither proper processing nor due process, many of these “apprehensions” are inflated — representing repeated “apprehensions” of the same individual merely seeking to apply for asylum — a legal right denied to them by both the Trump and Biden Administrations!
One might also ask whether an individual turning him or herself in and requesting legal asylum is “apprehended” at all? That’s why CBP has started using the more ambiguous term “encounter” to disguise what’s really happening at the border.
Under the Biden Administration’s latest discriminatory and brain dead application of Title 42, those Venezuelans who voluntarily turn themselves in at ports of entry or near the border will be illegally returned to Mexico to rot — as a “reward” for attempting to follow the law. Does this make sense? Of course not. And the consequences of this horrible “policy” are dire for both the refugees and our nation. In many ways, the Biden Administration inexplicably has gone even beyond the cruel stunts of DeSantis and Abbott in making “political footballs” 🏈out of vulnerable Venezuelan refugees! It’s an ongoing national disgrace, masquerading as “policy!”
The only avenue for legal refugee for these Venezuelans fleeing a repressive left-wing dictatorship is to hire a smuggler to get them past the border where they can lose themselves in the interior of the U.S. That is, under the Biden policy, “do it yourself, black market refuge” substitutes for a variable legal system and adds to the unscreened and often unknown underground population of undocumented migrants. in the U.S.
A robust, realistic refugee program for Venezuela, operating both in Mexico and in or near Venezuela, might well reduce the incentives for extralegal migration. It could also take some pressure off of other “receiving” countries in the Hemisphere. But, the “token” — unduly limited — program proposed by the Biden Administration will do nothing of the sort!
Extralegal entries and underground populations are not good. Robust, realistic, timely, refugee and asylum programs — properly focused on using existing laws for protection, not rejection — would reduce the incentive for extralegal migration while reaping the many potential benefits and strengths that refugees and asylees “bring to the table.”
Such a beneficial program is achievable — under current law. But, not without a radical shakeup in both the leadership and substance of the Biden Administration’s so-called human rights bureaucracy!
“Can’t anybody here play this game,” wonders Casey Stengel about the cruel, clueless crew in charge of human rights and immigration (non)policy in the Biden-Harris Administration.
PHOTO: Rudi Reit
Creative Commons
PWS
10-17-22
WANTED: Examples Of Racism And Other Bias In US Immigration Court
September 8, 2022tramontelaComments Off
on WANTED: Examples of racism and other bias in US immigration court
. . . .
The nation’s Immigration Courts have—thus far—flown under the public’s radar screen. Yet these are the places where life-or-death decisions are made, often for subjective and even racist reasons. That is why the Ohio Immigrant Alliance is collecting examples of racist, misogynistic, Islamophobic, and other biased statements and decisions made by Immigration Judges from across the country. We are working with a research team to analyze the cases and produce a report in early 2023. Here are a few examples.
Contact Lauren Hamlett (hamlett.15 AT buckeyemail.osu.edu) for more information or to share examples. This can be in the form of court documents and judges’ decisions or an interview with an immigrant or attorney. We will adhere to all privacy requirements requested by the immigrant and not publish anything without their consent.
The report, to be published in 2023, will shine a light on how racism shows up in Immigration Court using real-life examples. These findings will enrage anyone who believes the U.S. should work toward becoming a nation that guarantees “justice for all.”
See this testimony for more information, and contact Lauren to share your experiences.
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I was struck by the undeniable truth — scandalously ignored by Garland, his lieutenants, and Biden Administration policy officials — contained in the January 20, 2022 statement by Lynn Tramonte, Ohio Immigrant Alliance, to the House Judiciary Committee considering the need for an independent, professionally-administered, merit-based Immigration Court.
The U.S. Is Deporting People Who Qualify for Asylum
The current U.S. immigration system is not designed to function fairly, but to fail. There are many examples of this, but today I will focus on examples from the U.S. Immigration Court.
Lynn’s full statement is available at the “this testimony” link above. I’ve made this point over and over!
Because the current system is purposely biased against asylum seekers, particularly those of color arriving at our Southern border, the “statistics” purportedly showing that few will qualify for asylum are totally bogus! Then, they are inexcusably cited by so-called “mainstream media” who haven’t done their homework! This perpetuates the “nativist myth” of the “illegitimate asylum seeker” which is then used to dehumanize refugees and deny them their legal and human rights!
Fact is, because we don’t have a legitimate, expert asylum adjudication system, we don’t really know how many qualified refugees are being illegally turned away or denied. But, it’s a safe bet that a fair, expert, professionally administered asylum system would grant legal protection to many more — probably a majority — of those who pass credible fear!
The problem is NOT, as Sessions and other nativists claimed, that too many individuals pass “credible fear.” It’s that a biased, anti-asylum, mal-administered, and constitutionally flawed system wrongfully denies far, far, far too many legitimate claims! And, Garland’s incredibly dysfunctional EOIR is at the heart of this problem!
Fixing EOIR is an essential first step in “re-legitimizing” our entire floundering justice system. But, Garland isn’t up to the job!
Asylum is an important form of legal immigration and an opportunity for America to put its best foot forward by properly, fairly, and timely screening and admitting those who can qualify for refuge and will be key contributors to our nation’s future. The babble of GOP nativists like DeSantis, Cruz, Abbott, and others about “illegals” is total BS!
Asylum seekers have every right to be here and pursue fair, timely, and professional adjudication of their claims — something that’s elusive — highly unlikely to happen — under today’s “designed to fail” system! That includes the “new, designed to fail, improperly staffed and mindlessly operated asylum regulations.” See, e.g., https://immigrationcourtside.com/2022/10/03/%f0%9f%98%b0asylum-programmed-for-failure-refugee-roulette-three-rr3-confirm-what-many-of-us-said-right-off-the-bat-about-biden-admin/
It’s an ongoing national disgrace that Garland has failed to reform his Immigration Courts, eliminate bias and invidious discrimination from his judiciary, install quality, expertise, and professionalism, and insist that the Biden Administration abandon “Miller Lite,” nativist policies and mis-interpretations of the law that are diminishing our nation and endangering our future; that he also has ridiculously chosen to “go to war” with experts, NGOs, attorneys, and others seeking to change and improve his disgraceful mess at EOIR!
What’s the purpose and function of an Attorney General who operates broken and biased “courts,” defends the indefensible, and refuses to stand up for the fair application of the law to some of the most vulnerable among us?
In the meantime, submit your “real life” examples of what really happens to vulnerable humans in “America’s worst courts” to Ohio Immigrant Alliance at the above link.
PWS
10-07-22
Weekly Briefing
This briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The contents of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.
CONTENTS (jump to section)
- ◦NEWS
- ◦LITIGATION & AGENCY UPDATES
- ◦RESOURCES
- ◦EVENTS
PRACTICE UPDATES
USCIS Releases Revised Editions of Forms I-589 and I-765
USCIS: USCIS released the revised editions of Form I-589 and Form I-765 in compliance with the Asylumworks decision. Effective Nov. 7, 2022, USCIS will only accept the 07/26/22 editions of the Form I-589 and Form I-765. Until then, you can submit either the new editions, or the previous editions of Form I-589 (dated 08/25/20) and Form I-765 (dated 05/31/22 and 08/25/20).
NEWS
Texas Says 10,000 Migrants Have Been Bused to Democratic Cities
Bloomberg: Abbott said Friday that the state has bused more than 7,900 people to Washington in the past five months, sent 2,200 to New York and 300 to Chicago. See also Inside Migrants’ Journeys on Greg Abbott’s Free Buses to Washington; Attack on asylum seeker in New York sparks outrage over conditions. (If you’re curious how conservative media is playing this: Chicago mayor accused of ‘hypocrisy’ for sending migrants to GOP suburb.)
TRAC: Using detailed government records, TRAC found that the percent of Border Patrol (BP) apprehensions that comprise repeat border crossers did not significantly increase when, under Title 42 , illegal border crossers were not penalized or sanctioned before they were expelled. This finding, based on data obtained from the Border Patrol by the Transactional Records Access Clearinghouse at Syracuse University, is contrary to agency contentions and arguments by policy analysts that immediate expulsions without applying meaningful sanctions such as criminal prosecution to repeat crossers encourages illegal reentry attempts.
Republicans and Democrats have different top priorities for U.S. immigration policy
Pew: Republicans place particular importance on border security and deportations of immigrants who are in the country illegally, while Democrats place greater importance on paths to legal status for those who entered the country illegally – especially those who entered as children, according to a new Pew Research Center survey.
DHS unwinds Trump-era ‘public charge’ rule for immigrants
Politico: The new law unravels the Trump-era public-charge rule, under which immigrants could be denied permanent resident status if they had received or were expected to receive food assistance, Medicaid, housing assistance, or other public benefits. The Biden administration in stopped enforcing that regulation in March 2021.
ICE violated federal law by holding migrant teens in adult custody
Sentinel: Following a ruling that transferring migrant kids to adult detention centers just as they turned age 18 was illegal, a federal judge approved a settlement in a 2018 lawsuit this week.
‘Scary and chilling’: AI surveillance takes U.S. prisons by storm
Reuters: Beginning in 2019, Suffolk County was an early pilot site for the Verus AI-scanning system sold by California-based LEO Technologies, which uses Amazon speech-to-text technology to transcribe phone calls flagged by key word searches… Suffolk County is among dozens of county jails and state prisons in seven U.S. states including major metro areas such as Houston, Texas, and Birmingham, Alabama, that LEO says have so far implemented the Verus system to monitor inmates’ calls.
Deported veterans who returned to US face uncertain futures
RollCall: A Biden administration initiative brought them back to America under a temporary immigration status that expires after a year.
USCIS Has Used Nearly All Available Employment-Based Immigrant Visas for FY2022
JDSupra: This is a significant accomplishment for the agency because it approved approximately twice the annual allocation of employment-based immigrant visas in fiscal year 2022 (FY22).
LITIGATION & AGENCY UPDATES
3rd Circ. Tosses Salvadoran Man’s Deportation Review Bid
Law360: A Salvadoran man convicted of marijuana possession cannot overcome removal requirements of the Nicaraguan Adjustment and Central American Relief Act through a waiver found in a 1952 immigration law, the Third Circuit ruled Friday, denying his petition for review of a deportation order.
5th Circ. Says Guatemalan’s Stepkids Can’t Stop Deportation
Law360: The Fifth Circuit on Friday rejected a Guatemalan man’s bid to cancel his deportation on the basis that it would cause his stepchildren extreme hardship, saying he didn’t provide evidence strong enough to prove they were U.S. citizens.
9th Circ. Says High Court Ruling Limits Detainee Bond
Law360: The Ninth Circuit ruled Thursday that immigrants challenging deportation orders from mandatory detention aren’t entitled to bond hearings while the federal courts review the orders, citing a recent high court ruling at odds with a prior circuit decision allowing bond.
Final Settlement Approved In Lawsuit On Unlawful Detention Of Unaccompanied Youth
NIJC: A federal court approved a settlement agreement on September 7 in a lawsuit challenging the unlawful detention of unaccompanied children who turn 18 in U.S. government custody and are transferred to Immigration and Customs Enforcement (ICE) detention facilities.
Immigration Judges Say the FLRA Made Up Rules to Decertify Union
GovExec: In its appeal in federal circuit court, the National Association of Immigration Judges accused the Federal Labor Relations Authority’s then-Republican majority of already deciding to decertify the union before considering arguments in the case.
Final Rule: Public Charge Ground of Inadmissibility
DHS: The rule restores the historical understanding of a ‘public charge’ that had been in place for decades, until the prior Administration began to consider supplemental public health benefits such as Medicaid and nutritional assistance as part of the public charge inadmissibility determination.
DHS Notice of Extension of Venezuela for TPS
AILA: DHS notice extending the designation of Venezuela for TPS for 18 months, from 9/10/22 through 3/10/24. The 60-day re-registration period for existing TPS beneficiaries runs from 9/8/22 through 11/7/22. (87 FR 55024, 9/8/22)
EOIR Memo: Credible Fear and Asylum Procedures
EOIR: This memorandum summarizes certain key provisions of the interim final rule and provides guidance on the new streamlined removal proceedings.
EOIR to Relocate Arlington Immigration Court, EOIR to Open Sterling Immigration Court
EOIR: The Arlington Immigration Court will end normal operations at noon on October 6, 2022, to prepare for the court’s relocation to Annandale.
RESOURCES
- AILA: Practice Alert: Biden Administration’s Asylum Processing Rule Is Now in Effect in the Courts and Asylum Offices of Seven Destination Cities
- AILA: Practice Alert: Filing Form G-1593 to Appear Remotely at Asylum or NACARA Interviews
- AILA: Asylum and Credible Fear Interim Final Rule
- AILA: Find Resources for Assisting Afghan Clients
- CLINIC: Federal Register Notice for 18-Month Extension of TPS Designation for Venezuela Published
- CRS: An Overview of the Statutory Bars to Asylum: Limitations on Applying for Asylum (Part One)
- CRS: An Overview of the Statutory Bars to Asylum: Limitations on Applying for Asylum (Part Two)
- DHS OIG: DHS Encountered Obstacles to Screen, Vet, and Inspect All Evacuees during the Recent Afghanistan Crisis (REDACTED)
- DHS OIG: USCIS Should Improve Controls to Restrict Unauthorized Access to Its Systems and Information
- ILRC: The ICE Parental Interests Directive: How Child Welfare Agencies Can Advocate with ICE to Ensure Fair Treatment of Detained or Deported Parents
- JFL: Advisory on new prison phone surveillance tech
- NIJC: A Brief Guide to Representing Noncitizen Criminal Defendants in Illinois (with Quick Reference Chart for Determining Immigration Consequences of Common Illinois Offenses).
- NLG: Biden’s Asylum Processing Rule: Three Months in, What Practitioners Need to Know
- NLG: Explainer: Biden Administration on Policing Two Years In
- USCIS: USCIS Stopped Applying June 2020 Rules Pursuant to Court Order in Asylumworks v. Mayorkas (Updated: 09/07/2022)
EVENTS
- 9/13/22 PLI: Representing Children in Immigration Matters 2022: Effective Advocacy and Best Practices
- 9/14/22 Representing U Visa Clients with Complex Issue
- 9/14/22 Partial to Full Accreditation Initiative 2022
- 9/15/22 Monthly NIPNLG Removal Defense Webinar: Credibility and Impeachment
- 9/15/22 Advanced Mandamus Trends
- 9/20/22 19th Annual Immigration Law and Policy Conference
- 9/20/22 Nonprofit and For-Profit Entity Intersection 2022: Achieving Charitable Goals Through Innovative and Nontraditional Mechanisms
- 9/21/22 Breaking Down the Record in a Ninth Circuit Petition for Review
- 9/21/22-9/22/22 Refresher and Practice Tips: Legal Remedies for Immigrant Survivors
- 9/22/22 Maximizing Second Chances: Filing Appeals, Motions, and Practicing before the BIA
- 9/22/22 USCIS: Deferred Action for Childhood Arrivals Final Rule National Stakeholder Engagement
- 9/23/22 Politics and Purpose Movement Lawyering Workshop
- 9/28/22 AILA: Microsoft Word Tricks That Will Change Your Life
- 9/29/22 Consular Processing Roundup for Families and Survivors
- 10/1/22-10/8/22 Spanish for Lawyers in Allende, Mexico
- 10/4/22 & 10/11/22 CLINIC: Webinar Series: U Visa Certification Advocacy: Creating Policies and Laws to Protect Immigrant Victims of Crime
- 10/6/22 2022 Fall Immigration Skills Conference
- 10/6/22-10/19/22 CLINIC: Immigration Practice Skills Course
- 10/7/22-10/28/22 Understanding and Preparing Waivers
- 10/12/22 Prosecutorial Discretion Updates
- 10/12/22-10/13/22 NLG: Immigration Defense Strategies
- 10/18/22 VAWA Updates – USCIS Policy Changes and Practice Tips
- 10/19/22 CLINIC: Outreach Strategies and Social Media to Connect With and Serve Immigrants
- 10/19/22 U Visa: I-929 Process & Issues
- 10/20/22 Understanding Unlawful Presence and I-601/I-601A
- 10/27/22 2022 Convening On Advancing Universal Representation
- 10/29/22 4th Annual 5k for Immigrant Justice (includes remote option)
- 11/2/22 TPS Updates
- 11/3/22 Drugs and Naturalization
- 11/8/22 SIJS-based Adjustment of Status with Delinquency or Crimes
- 11/16/22 Introduction to Conditional Permanent Residence and Filing the I-751
- 11/17/22 NLG: Updates on Terrorism-Related Inadmissibility Grounds (TRIG) with guest speaker, Jay Gairson
- 11/29/22 Building an Asylum Claim
- 12/6/22 Emerging Strategies for Prolonged Detention
- 12/7/22 Parole in Immigration
- 12/13/22 The Effects of Absences on Naturalization
- 12/14/22 Hot Topics in Asylum Law
- 12/15/22 NLG: Obtaining Criminal Records with guest speaker, Gabriela Kahrl
- 01/19/22 NLG: Top Ethical Issues Facing Legal Representatives in Removal Hearings with guest speaker, Retired Immigration Judge Dana Marks
To sign up for additional NIJC newsletters, visit: https://immigrantjustice.org/subscribe.
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Elizabeth Gibson (Pronouns: she/her/ella)
Managing Attorney for Capacity Building and Mentorship
National Immigrant Justice Center
A HEARTLAND ALLIANCE Program
224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org
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Sure looks like CBP is “apprehending” the same individuals multiple times. Also, many of these so-called “apprehensions” want to be “caught” because it’s the only possible way of getting the chance to apply for asylum that our law guarantees, but fails to provide in practice. That’s because ports of entry are still “closed” under bogus Title 42 restrictions. So, the overhyped “border apprehensions” appear, to a significant extent, to be “smoke and mirrors.”
It’s really not surprising that “sanctions” apparently don’t deter unlawful entries. That’s because 1) the vast majority of unlawful entrants aren’t “criminals” in any normal sense of the word except in the mind of White Nationalist xenophobes, 2) many are just trying to get the Government to follow the law and let them apply for asylum, or other legal protections, and 3) even those without credible claims for protection are, for the most part, at worst, just coming here to work at jobs that U.S. workers don’t want.
Jeff Session’s racist “zero tolerance program” of useless border prosecutions violated the Constitution by intentionally separating families, cost the Government millions, ruined lives, squandered prosecutorial resources that should have been spent on real crime, and accomplished absolutely nothing positive. Yet, Sessions, his neo-Nazi henchman Stephen Miller, and the government sycophants (including unethical DOJ lawyers) who carried out this travesty remain free and will never be held accountable.
Somehow, GOP nativists have gotten away with turning the self-created border “crisis” upside down. If we cut through their smokescreen, we see that the Government actually is the “law breaker” and many of the “forced irregular entrants” actually are trying to comply with the law! Not to mention that the USG has failed to establish viable refugee programs to process Western Hemisphere refugees before they come to our borders. Pretty kafkaesque!
Also, the effort by unqualified right-wing Federal “Judges” and neo-fascist GOP state AG’s to close the border to legal asylum seekers is a national disgrace that seems to be “below the radar screen.” Gotta hope that history “toasts” these corrupt, ignorant, and immoral public officials even if there is little interest in holding them accountable in “real time.”
But, somehow, even the so-called “mainstream media” hypes the wrong story!
PWS
09-14-22
https://trac.syr.edu/immigration/reports/691/
DHS Fails to File Paperwork Leading to Large Numbers of Dismissals
Published Jul 29, 2022
One out of every six new cases DHS initiates in Immigration Court are now being dismissed because CBP officials are not filing the actual “Notice to Appear” (NTA) with the Court. The latest case-by-case Court records obtained and analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University through a series of Freedom of Information (FOIA) requests show a dramatic increase in these cases. See Figure 1. The number of case closures along with those dismissed because no NTA was filed are shown in Table 1.
Figure 1. Immigration Court Cases Dismissed Because DHS Failed to File a “Notice to Appear” to Initiate Court Proceedings, FY 2013 – FY 2022 (through June)
Table 1. Immigration Court Cases Dismissed Because DHS Failed to File a “Notice to Appear” to Initiate Court Proceedings, FY 2013 – FY 2022 (through June)
Fiscal Year All Court Completions Dismissed: No NTA Filed Number Percent 2013 167,446 355 0.2% 2014 160,483 225 0.1% 2015 168,684 41 0.0% 2016 178,052 11 0.0% 2017 179,153 84 0.0% 2018 193,391 505 0.3% 2019 276,647 4,686 1.7% 2020 243,367 5,952 2.4% 2021 144,751 15,244 10.5% 2022* 284,446 47,330 16.6% * Through the first 9 months (Oct-June 2022). If pattern continues, FY 2022 would end with 63,107 projected dismissals.
Ten years ago this failure to file a NTA was rare. But as the onset in Table 1 shows, the frequency increased once Border Patrol agents were given the ability to use the Immigration Court’s Interactive Scheduling System (ISS). Using ISS, the agents can directly schedule the initial hearing (i.e. a master calendar hearing) at the Immigration Court. Supposedly, the actual NTA is created at the same time, and a copy given to the asylum seeker or other noncitizen with the scheduled hearing location and time they are to show up in Court noted on the NTA.
Thus, the process only requires that CBP actually follow up with the ministerial task of seeing that the Court also receives a copy of the NTA. With the implementation of the Court’s ECAS system of e-filing, this should have made the process quick and straightforward. That this is failing to be done suggests there is a serious disconnect between the CBP agents entering new cases and scheduling hearings through the Court’s ISS system, and other CBP personnel responsible for submitting a copy to the Court.
This is exceedingly wasteful of the Court’s time. It is also problematic for the immigrant (and possibly their attorney) if they show up at hearings only to have the case dismissed by the Immigration Judge because the case hasn’t actually been filed with the Court.
Where Is This Problem Occurring?
TRAC has sought, but has yet been unable to obtain, information on the specific Border Patrol units and locations where failure to file these NTAs is occurring. However, an analysis of all Court hearing locations finds that there are some Courts where the majority of all case completions are these dismissals for failing to file the NTA.
Leading the list in terms of the number of these NTA closures is the Dedicated Docket hearing location in Miami. Fully 7,700 out of the total of 9,492 case completions during FY 2022 — or 81 percent — were dismissals because the Court had not received the NTA.
While the situation for the Dedicated Docket in Miami was extreme, a number of Dedicated Docket locations have much higher dismissal rates than occur nationally where 1 out of 6 (17%) of case completions are closed for this reason. In Boston’s Dedicated Docket the rate of dismissal during the first 9 months of FY 2022 has been 62 percent, and in New York’s and Los Angeles’ Dedicated Dockets the rate is 32 percent – almost twice the national average.
But other Dedicated Docket locations have below average dismissal rates. These include San Francisco with 11 percent, New York’s separate Broadway DD hearing location with 15 percent, and Newark with 16 percent. [1] While It would appear that a policy which tries to accelerate the scheduling and hearing of cases puts additional pressure on DHS to promptly file, it isn’t an insurmountable burden. [2]
Further, some regular hearing locations have also been experiencing high dismissal rates because of DHS’s failure to file NTAs. These include Houston with 54 percent, Miami with 43 percent, and Chicago with 26 percent.
For a list of Immigration Court hearing locations with their individual dismissal rates because of DHS’s failure to file the NTA see Table 2.
Table 2. Immigration Court Cases by Hearing Location Dismissed Because DHS Failed to File a “Notice to Appear” to Initiate Court Proceedings in FY 2022 (October 2021-June 2022)
Court Hearing Location All Court Completions Dismissed: No NTA Filed Rank: No NTA Number Percent Number Percent All 284,446 47,330 17% IAD designated Hearing Locations* 5,516 5,516 100% 3 1 Miami – Dedicated Docket – DD 9,492 7,700 81% 1 2 Boston – Dedicated Docket – DD 2,752 1,698 62% 6 3 Houston, Texas 7,518 4,064 54% 4 4 Miami, Florida 16,644 7,155 43% 2 5 El Paso – Dedicated Docket – DD 169 69 41% 48 6 Los Angeles – Dedicated Docket – DD 3,006 974 32% 10 7 New York – Dedicated Docket – DD 3,436 1,098 32% 8 8 Chicago, Illinois 5,006 1,292 26% 7 9 Denver – Dedicated Docket – DD 1,019 258 25% 32 10 Orlando, Florida 3,437 640 19% 19 11 Charlotte 6,057 979 16% 9 12 New York Varick 4,254 676 16% 17 13 Newark – Dedicated Docket – DD 1,854 290 16% 29 14 Atlanta Non-Detained Juvenile 421 65 15% 49 15 NYB – Dedicated Docket – DD 1,183 179 15% 33 16 MPP Brownsville Gateway International Bridge 848 126 15% 37 17 Houston – S. Gessner 6,179 914 15% 11 18 Leland Federal Building 3,241 477 15% 23 19 Philadelphia, Pennsylvania 5,284 748 14% 14 20 Santa Ana Immigration Court 6,257 874 14% 12 21 Chicago Non-Detained Juveniles 101 14 14% 65 22 New York City, New York 21,202 2,784 13% 5 23 Boston, Massachusetts 5,793 748 13% 14 24 New Orleans, Louisiana 5,139 647 13% 18 25 Arlington, Virginia 6,546 821 13% 13 26 Phoenix, Arizona 3,869 480 12% 22 27 San Juan, Puerto Rico 406 49 12% 52 28 Denver, Colorado 4,547 506 11% 20 29 San Francisco – Dedicated Docket – DD 1,437 159 11% 35 30 New York Broadway 6,593 708 11% 16 31 Sacramento Immigration Court 1,285 131 10% 36 32 Kansas City, Missouri 1,145 115 10% 41 33 Omaha, Nebraska 1,419 125 9% 38 34 San Diego, California 3,539 289 8% 30 35 Atlanta, Georgia 3,596 285 8% 31 36 Pittsburgh, Pennsylvania 220 17 8% 61 37 San Diego – Dedicated Docket – DD 288 22 8% 60 38 El Paso, Texas 2,208 168 8% 34 39 Las Vegas, Nevada 1,622 119 7% 40 40 Detroit, Michigan 1,953 124 6% 39 41 Van Nuys Immigration Court 6,405 388 6% 24 42 Houston Greenspoint Park 5,738 338 6% 26 43 Buffalo, New York 1,439 82 6% 43 44 Cleveland, Ohio 5,557 316 6% 27 45 Laredo Immigration Court 443 25 6% 58 46 San Francisco, California 9,277 502 5% 21 47 Mia Non-Detained Juveniles 536 29 5% 53 48 Newark, New Jersey 6,568 345 5% 25 49 San Francisco Non-Detained Juveniles 226 11 5% 68 50 Honolulu, Hawaii 278 13 5% 66 51 MPP Court El Paso 604 27 4% 55 52 Seattle – Dedicated Docket – DD 588 26 4% 56 53 Harlingen, Texas 1,811 78 4% 46 54 Portland, Oregon 1,281 54 4% 51 55 MPP Laredo,texas – Port of Entry 143 6 4% 72 56 Salt Lake City, Utah 1,949 80 4% 44 57 Tucson, Arizona 791 29 4% 53 58 MPP Court San Ysidro Port 195 7 4% 71 59 Charlotte Juvenile 477 17 4% 61 60 Reno, Nevada 330 11 3% 68 61 Memphis, Tennessee 3,837 114 3% 42 62 Hartford Juvenile 144 4 3% 73 63 Los Angeles – North Los Angeles Street 3,253 78 2% 46 64 Los Angeles, California 12,702 304 2% 28 65 Hartford, Connecticut 2,596 60 2% 50 66 Bloomington 3,577 79 2% 45 67 Imperial, California 497 9 2% 70 68 Bloomington Juvenile 177 3 2% 77 69 Arlington Juvenile 950 16 2% 64 70 Boston Unaccompanied Juvenile 817 13 2% 66 71 Detroit – Dedicated Docket – DD 200 3 2% 77 72 Memphis Juvenile 288 4 1% 73 73 Philadelphia Juvenile 375 4 1% 73 74 San Antonio, Texas 3,015 26 1% 56 75 Florence, Arizona 270 2 1% 79 76 Dallas, Texas 3,667 23 1% 59 77 New Orleans Juvenile 166 1 1% 81 78 Seattle, Washington 3,170 17 1% 61 79 Baltimore, Maryland 2,772 4 0% 73 80 Hyattsville Immigration Court 1,939 2 0% 79 81 Louisville, Kentucky 1,110 1 0% 81 82 Pearsall, Texas – Detention Facility 1,505 0 0% none none Winn Correctional Facility 1,342 0 0% none none Port Isabel Service Processing Center 1,324 0 0% none none San Francisco Annex 1,017 0 0% none none Stewart Detention Center – Lumpkin Georgia – LGD 866 0 0% none none Conroe Immigration Court 754 0 0% none none Baltimore, Maryland Juvenile 737 0 0% none none Aurora Immigration Court 676 0 0% none none San Antonio Satellite Office 654 0 0% none none Boise, Idaho 575 0 0% none none Moshannon Valley Correctional Facility 574 0 0% none none Stewart Immigration Court 569 0 0% none none T. Don Hutto Residential 527 0 0% none none Jackson Parish 496 0 0% none none Krome North Service Processing Center 474 0 0% none none Prairieland Detention Center 470 0 0% none none Imperial Detained 462 0 0% none none Atlanta Non-Detained 417 0 0% none none Otay Mesa Detention Center 407 0 0% none none Chicago Detained 406 0 0% none none Laredo, Texas – Detention Facility 404 0 0% none none Lasalle Detention Facility 390 0 0% none none Northwest Detention Center 382 0 0% none none Eloy INS Detention Center 381 0 0% none none Polk County Detention Facility 377 0 0% none none El Paso Service Processing Center 372 0 0% none none Otero County Processing Center 350 0 0% none none Southwest Key 348 0 0% none none Bluebonnet Detention Center 344 0 0% none none Cleveland Juvenile 340 0 0% none none Rio Grande Detention Center 319 0 0% none none Denver Family Unit 282 0 0% none none DHS-Litigation Unit/Oakdale 259 0 0% none none Caroline Detention Facility 248 0 0% none none Immigration Court 247 0 0% none none Denver – Juvenile 245 0 0% none none Houston Service Processing Center 240 0 0% none none La Palma Eloy 237 0 0% none none Batavia Service Processing Center 228 0 0% none none Karnes County Correction Center 224 0 0% none none Mcfarland-Mcm For Males 224 0 0% none none River Correctional Facility 221 0 0% none none Dilley – Stfrc 217 0 0% none none Boston Detained 215 0 0% none none Broward Transitional Center 202 0 0% none none San Antonio Non-Detained Juvenile 182 0 0% none none La Palma 179 0 0% none none Seattle Non-Detained Juveniles 177 0 0% none none Louisville Juvenile 175 0 0% none none Orange County Correctional Facility 173 0 0% none none Cibola County Correctional Center 161 0 0% none none South Louisiana Correctional Center 161 0 0% none none Richwood Correctional Center 158 0 0% none none Nye County 150 0 0% none none Kansas City Immigration Court – Detained 148 0 0% none none San Diego Non-Detained Juvenile 142 0 0% none none Bloomington Detained 137 0 0% none none Desert View 131 0 0% none none Giles W. Dalby Correctional Institution 122 0 0% none none Joe Corley Detention Facility 116 0 0% none none Texas DOC- Huntsville 112 0 0% none none Torrance County Detention Facility 109 0 0% none none Calhoun County Jail 107 0 0% none none * Note all closures are for the failure to file a NTA. The Court created these special “IAD locational codes” ultimately within 77 Courts beginning back in July 2018. The cases they handle appear to consistently close because no NTA was filed. In FY 2022 these “IAD” dismissals were recorded as spread across 31 different Immigration Courts (“base cities”). Thus, this “IAD” tag appears to function largely as a book-keeping measure to separate out these dismissals from the rest of the Court’s proceedings at these diverse locations.
Footnotes
[1]^ Three other Dedicated Docket locations which have a relatively small number of closures to date also weren’t experiencing high dismissal rates. These included Detroit where only 3 out of its 200 closures (2%) were because the NTA hadn’t been filed; Seattle with just 26 cases dismissed out of its 588 closures (4%); and San Diego with 22 dismissals out of its 288 closures (8%).
[2]^ See TRAC’s January 2022 report noting significant dismissal rates for failure to file at Dedicated Docket hearing locations. The rate then was 10 percent so the problem has considerably worsened since then.
TRAC is a nonpartisan, nonprofit data research center affiliated with the Newhouse School of Public Communications and the Whitman School of Management, both at Syracuse University. For more information, to subscribe, or to donate, contact trac@syr.edu or call 315-443-3563.
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It’s not rocket science! 🚀
Compare the reality of easily fixable systemic Government failures with gimmicks and harsh sanctions meant to dishonestly shift blame and consequences to individual victims.
PWS
07-31-22
Transactional Records Access Clearinghouse
Pace of Immigration Court Processing Increases While Backlog Continues to Climb
The latest case-by-case records show that the Immigration Court backlog reached 1,821,440 at the end of June 2022. This is up 25 percent from the backlog just at the beginning of this fiscal year. These figures are based on the analysis of the latest court records obtained through Freedom of Information Act (FOIA) requests by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University.
New Immigration Court cases continue to outstrip the number of cases being closed. So far during the first nine months the court received 634,594 new cases, but has only managed to dispose of 287,711. These closures took 1,130 days on average or more than three years from the date of the Notice to Appear (NTA) to the court’s disposition. Part of the delay represents the time it took from the Department of Homeland Security to actually file the NTA after it was issued. This delay reached record levels during the Trump administration three years ago, but NTAs are being filed much more promptly under the current administration.
The pace of court closures also has been accelerating. After the partial government shutdown in March 2020, court closures averaged just 6,172 per month for the remainder of that fiscal year. During FY 2021, court closures roughly doubled to 12,055 on average per month. By the end of the first six months of FY 2022, monthly closures had again doubled to an average of 23,957 per month. And this last quarter covering just the three-month period from April – June 2022, monthly closures doubled again to 47,991 on average each month.
According to court statistics, immigration judges on board at the beginning of this past quarter had increased just 6 percent over levels at the beginning of FY 2022. Thus, the increase in judge hiring only accounts for some of this speedier pace. A more important factor appears to be the many changes implemented by the Biden administration to increase the speed that court cases get scheduled and decided. However, as TRAC has reported, the increase in speed has come with heightened due process concerns, increasing the number of asylum seekers unable to secure legal representation which then greatly diminishes their opportunity to adequately prepare and present their asylum claims.
For more highlights on the Immigration Court, updated through June 2022, go to:
For an index to the full list of TRAC’s immigration tools and their latest update go to:
https://trac.syr.edu/imm/tools
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https://tracfed.syr.edu/cgi-bin/tracuser.pl?pub=1
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TRAC is self-supporting and depends on foundation grants, individual contributions and subscription fees for the funding needed to obtain, analyze and publish the data we collect on the activities of the US Federal government. To help support TRAC’s ongoing efforts, go to:
https://trac.syr.edu/cgi-bin/sponsor/sponsor.pl
David Burnham and Susan B. Long, co-directors
Transactional Records Access Clearinghouse
Syracuse University Peck Hall
601 E. Genesee Street
Syracuse, NY 13202-3117
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Needed:
This broken and failing system and its toxic discredited “culture of denial, fake expediency, and false deterrence” needs a radical overhaul — NOW!
PWS
07-16-22
