"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.
Immigration will be a key issue in the next administration. Join a panel of experts from the Cornell Law School immigration law and policy research program to learn what immigration laws and policies might change, both in the lame duck session and in 2025.
Congratulations again and my utmost appreciation for your absolutely stellar, four-decade, high-impact career in applied scholarship on immigration, human rights, and justice in America. Your influence, which I trust will continue unabated into retirement, has been a huge positive for our nation and our world.
As I previously mentioned, I am sorry that I will be unable because of previous commitments to celebrate in person or online with you and your many admirers at Cornell Law on November 8. But, I know it will be a “love-fest” whether in the form of “roast” or “conferring of regalia!”
You are the epitome of what I have termed the “practical scholar” — someone who uses creativity, extraordinary learning, and masterful command of a complex subject to solve problems, achieve actual results in the real world, inspire others, and produce positive trends. I have truly treasured our friendship and association going back over four decades to your time at Interpreter Releases, Immigration Briefings, and Federal Publications. We, of course, shared the mentorship of the late, great former BIA Chair and Editor of Interpreter Releases Maury Roberts, the friendship and professional association with the late Juan Osuna who played a major role in our respective careers, as well as our mutual association with Sue Siler who worked with me during my “Jones Day era.”
I assume that you recollect helping and encouraging me to set a “footnote record” with my article on employer sanctions for Immigration Briefings as well as our work together on some updates for your treatise Immigration Law & Procedure, and the now long in the past Federal Publications “holiday bashes” for authors and editors!
Our friendship and association continued beyond my “private practice phase” into my tenure as BIA Chair and then into my “next chapter” at the “Legacy Arlington Immigration Court.” Following my retirement, I was delighted to accept your kind invitation to be part of the Berger International Programs Lecture Series at Cornell Law in March 2017. We also had a chance to strategize and talk about”applied law” with your wonderful Clinic students who were engaged in some really challenging and important cases!
Professors Jaclyn Kelley-Widmer & Steve Yale Loehr show off their “no ties look” at Cornell Law, March 2017.
I also appreciated having a chance to see your spectacular campus and to chat with you informally over meals.Your book “Green Card Stories,” which you “gifted” to me at the time, eventually because one of the sources and inspirations for an adult enrichment class on a cultural anthropological and legal approach to American immigration history that I co-taught with my friend and colleague Dr. Jennifer Esperanza at Lawrence University’s Bjorklunden Seminars.
No, it’s not the Tower of London, but the “Tower of Law” @ Cornell (not to be confused with the “Falls Church Tower”). March 2017
Of course in addition to your many scholarly publications and Clinic successes, you have been a tireless presenter and public voice for truth, accuracy, scholarship, and humane solutions to thorny immigration and human rights issues at a time when myths, disinformation, and fear about these topics scandalously have become “normalized” in our political and media discourse. Indeed, I have “featured” your activities, including your heartfelt tribute to Juan Osuna, on my blog immigrationcourtside.com no less than 45 times (and I probably missed a couple)! I also greatly admire and appreciate you and others having the guts and integrity to “speak truth to power and set the record straight” even when powerful currents are pushing in the opposite direction.
Recently, I was happy to be able to share an evening with you and Amy during the DC Tribute Dinner for our mutual friend and inspiration Doris Meissner. I will also take full credit for shaming you into wearing a coat and tie to the function. After all, somebody has to maintain standards among the ranks of the New Due Process Army (“NDPA”).
In closing, thank thank you again, Steve, for your more than four decades of friendship, support, encouragement, scholarship, and unswerving commitment to using law as a tool for humane practices, due process, inspiring the younger generations, and overall making our nation and our world a better place! I wish you, Amy, and your family all the best in retirement and look forward to many years of continuing association in the cause of justice.
Congratulations again, due process forever, and best wishes, always,
NOVEMBER 8, 2024 for a DAY-LONG EVENT in the Landis Auditorium Room 184 Myron Taylor Hall Cornell Law School.
To celebrate the career of Professor Stephen Yale-Loehr and his contributions to the field of immigration law.
“The (Im)possibility of Immigration Reform?,” will feature three panels and a light-hearted roast of Professor Yale-Loehr. Click HERE to view the agenda.
The conference will include lunch and a reception. Articles written for the conference will be published in a forthcoming issue of the Cornell International Law Journal.
REGISTER TODAY
If you haven’t already registered, please register to attend in person HERE. Space is limited and filling up fast as you can imagine.
Or click HERE if you can’t attend in person and would like to register for the webinar.
Thank you,
CENTERS & PROGRAMS TEAM
Administrative Assistant | Centers & Programs | Cornell Law School
Groundbreaking Path2Papers Initiative Receives $1.5 Million Grant
Jaclyn Kelley-Widmer (left) and Steve Yale-Loehr are two of the leaders of the new Path2Papers initiative.
By Chris Brouwer
April 22, 2024
JNews
Groundbreaking Path2Papers Initiative Receives $1.5 Million Grant
By Chris Brouwer
April 22, 2024
Professors Jaclyn Kelley-Widmer and Stephen Yale-Loehr have secured a $1.5 million grant from Crankstart for their groundbreaking initiative, the Path2Papers project. Housed at Cornell Law School, this new nonprofit venture helps DACA recipients in the San Francisco Bay Area pursue work visas and other pathways to legal permanent residency. Cornell DACA recipients can also receive consults through this project.
Since its inception by the Obama administration in 2012, the Deferred Action for Childhood Arrivals (DACA) program has allowed an estimated 600,000 undocumented young migrants who arrived in the United States as children to obtain the right to work and temporary protection from deportation. However, with Congress’s failure to find a legislative solution and legal challenges entangling the program in federal courts, uncertainty looms over DACA’s future.
Path2Papers is one of the only programs in the country that combines experience in employer representation with expertise in evaluating employment-based immigration options for DACA recipients. Coordinated by Kelley-Widmer, Yale-Loehr, and several others, including Dan Berger ’96, an immigration lawyer and nonresident academic fellow at the Law School, the project aims to facilitate the transition of up to 40 percent of the approximately 12,000 Bay Area DACA recipients to alternative lawful immigration statuses. By doing so, it seeks to ensure that even if Congress or the courts terminate DACA, many recipients in the Bay Area can continue to reside legally in the United States, unlocking their full potential.
Path2Papers will employ a multifaceted approach to achieve its objectives. This includes providing personalized legal consultations to DACA recipients, training students and professionals in immigration law, hosting legal information sessions, offering referrals to legal service providers and pro bono attorneys, conducting training sessions for attorneys on handling DACA-related issues, and educating employers about visa options for their DACA employees.
Over the two-year grant period, Path2Papers will establish a robust infrastructure to deliver comprehensive legal assistance to Bay Area DACA recipients. During the first stage of this process, Kelley-Widmer is shifting the focus of her longstanding 1L Immigration Law and Advocacy Clinic to the Path2Papers project. “I’m excited to have the opportunity to build proactive support for DACA recipients through this cutting-edge model while integrating clinical students into the work,” Kelley-Widmer says. “And already, other organizations around the country have reached out about how to replicate this project in their area.” In addition, the project has hired immigration lawyer Krsna Avila ’17, a former clinic student, as a full-time attorney based in the Bay Area.
“This project teaches valuable legal skills to law students while also addressing a real need for a deserving and underserved population,” says Yale-Loehr. “In that sense it fulfills Cornell Law School’s mission of creating ‘lawyers in the best sense.’”
For more information about Path2Papers, visit path2papers.org.
aclyn Kelley-Widmer (left) and Steve Yale-Loehr are two of the leaders of the new Path2Papers initiative.
Professors Jaclyn Kelley-Widmer and Stephen Yale-Loehr have secured a $1.5 million grant from Crankstart for their groundbreaking initiative, the Path2Papers project. Housed at Cornell Law School, this new nonprofit venture helps DACA recipients in the San Francisco Bay Area pursue work visas and other pathways to legal permanent residency. Cornell DACA recipients can also receive consults through this project.
Since its inception by the Obama administration in 2012, the Deferred Action for Childhood Arrivals (DACA) program has allowed an estimated 600,000 undocumented young migrants who arrived in the United States as children to obtain the right to work and temporary protection from deportation. However, with Congress’s failure to find a legislative solution and legal challenges entangling the program in federal courts, uncertainty looms over DACA’s future.
Path2Papers is one of the only programs in the country that combines experience in employer representation with expertise in evaluating employment-based immigration options for DACA recipients. Coordinated by Kelley-Widmer, Yale-Loehr, and several others, including Dan Berger ’96, an immigration lawyer and nonresident academic fellow at the Law School, the project aims to facilitate the transition of up to 40 percent of the approximately 12,000 Bay Area DACA recipients to alternative lawful immigration statuses. By doing so, it seeks to ensure that even if Congress or the courts terminate DACA, many recipients in the Bay Area can continue to reside legally in the United States, unlocking their full potential.
Path2Papers will employ a multifaceted approach to achieve its objectives. This includes providing personalized legal consultations to DACA recipients, training students and professionals in immigration law, hosting legal information sessions, offering referrals to legal service providers and pro bono attorneys, conducting training sessions for attorneys on handling DACA-related issues, and educating employers about visa options for their DACA employees.
Over the two-year grant period, Path2Papers will establish a robust infrastructure to deliver comprehensive legal assistance to Bay Area DACA recipients. During the first stage of this process, Kelley-Widmer is shifting the focus of her longstanding 1L Immigration Law and Advocacy Clinic to the Path2Papers project. “I’m excited to have the opportunity to build proactive support for DACA recipients through this cutting-edge model while integrating clinical students into the work,” Kelley-Widmer says. “And already, other organizations around the country have reached out about how to replicate this project in their area.” In addition, the project has hired immigration lawyer Krsna Avila ’17, a former clinic student, as a full-time attorney based in the Bay Area.
“This project teaches valuable legal skills to law students while also addressing a real need for a deserving and underserved population,” says Yale-Loehr. “In that sense it fulfills Cornell Law School’s mission of creating ‘lawyers in the best sense.’”
For more information about Path2Papers, visit path2papers.org.
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Congrats to all involved at Cornell Law and appreciation to Professor Steve Yale-Loehr for alerting me to this wonderful initiative. This appears to be an approach that could be replicated elsewhere.
1)Hi all: Our Cornell asylum appeals clinic recently won a difficult withholding/CAT case at the BIA.On remand, the IJ granted CAT.And the client won release through habeas.
Pasted in below is a summary of the case.
Kudos go to Eva Charles and Isaac Belenkiy, the two Cornell law students who worked on the case.Even by the high standards of our clinic, they both went above and beyond for the client.And as you will see from the summary, pro bono attorneys from Morrison Foerster and the public defender’s office also worked hard to get our client CAT protection and release from detention.It takes a village to win immigration relief!
The habeas decision is at 2023 U.S. Dist. LEXIS 173280.The BIA decision is too big to attach.If anyone wants it, please email me offline.
Thanks, Steve Yale-Loehr
2023 Mexico Withholding and CAT Case Summary [IES]
Stephen Yale-Loehr, Evangeline Charles, Isaac Belenkiy
IES is a 41-year-old man from Mexico who first came to the U.S. when he was 18 years old. As a youth, IES joined a gang. He was arrested in 2005 for possessing a small quantity of drugs and was sentenced to four years in prison for “transporting drugs.” While in prison, IES defected from the gang and, following his release, was removed to Mexico in 2008. There, his tattooed physical appearance caught the attention of gangs and cartels like the Cártel de Jalisco Nueva Generación, who attacked him and his family, prompting him to relocate eight times within Mexico. Unable to find safety in Mexico, IES fled back to the United States in 2010.
In 2022, IES was detained by ICE and held at the Golden State Annex (“GSA”), a private for-profit prison, in McFarland, CA. IES applied for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). The Immigration Judge (“IJ”) denied all forms of relief, finding that IES’s 2005 conviction was a “particularly serious crime” (“PSC”) that rendered him ineligible for asylum and withholding of removal.
At this point, the Cornell asylum appeals clinic took on IES’s appeal to the Board of Immigration Appeals (“BIA”). Our brief addressed two main issues: 1) IES warranted relief under withholding of removal because his 2005 conviction was not a PSC; and 2) the IJ erred in analyzing IES’s eligibility for CAT relief.
For the PSC argument, we argued that the IJ improperly analyzed IES’s offense, ignored credible evidence that the drugs were for personal use, and instead relied on boilerplate sentencing documents. As a result, the IJ failed to analyze IES’s motivation and intent at the time of the offense.
For the CAT argument, we focused on 6 errors: 1) the IJ failed to consider that IES’s prolonged mental pain would cause future torture; 2) the IJ did not consider future torture from gangs and cartels despite an expert saying this risk was at 80%; 3) the IJ failed to admit 400 pages of country conditions reports into evidence; 4) the IJ mischaracterized IES’s attempts to flee cartels 8 times as “relocation;” 5) the IJ did not think there was police acquiescence even though the police, the local Attorney General, and the judicial police ignored IES’s complaints; and 6) the IJ did not aggregate IES’s risk of torture.
On June 16, 2023, the BIA sustained our appeal in IES’s favor and remanded the case back to the IJ. Notably, the BIA agreed with our PSC argument, the IJ’s failure to consider all evidence, and the IJ’s failure to aggregate IES’s risk of torture.
After this, IES’s case was transferred to a public defender, who represented him on remand. The clinic team worked closely with the public defender’s office to transfer all files and get them up to speed on the case.
Parallel to our BIA filing, we participated in other advocacy efforts. While at GSA, IES participated in a labor strike in 2022 and a hunger strike in 2023. The aims of these protests were to draw attention to the abysmal conditions at private immigration detention facilities like GSA, to call for a minimum wage for detainee labor, and to demand safe and sanitary living conditions for detained migrants. The 2023 hunger strike was a coordinated effort by detainees and activists, supported by lawyers working for immigration justice. This protest resulted in a class action lawsuit on behalf of the detainees and the submission of release requests on behalf of individual detainees.
During the protests at GSA, our team filed a release request for IES. Our request explained that IES should be released because he was neither a flight risk nor a danger to society. ICE denied the request. IES continued to participate in the hunger strike and was mistreated by ICE personnel and medical officers. This prompted our clinic to file complaints to ICE and DHS about this mistreatment, which violated ICE’s own regulations.At the same time, we filed FOIA requests asking for IES’s detention, removal, and medical records. We decided to build a record of release requests to show administrative exhaustion so that IES can get a bond hearing. We also found a law firm (Morrison Foerster) to represent IES pro bono for a habeas corpus petition.
On September 27, 2023, the U.S. district court for the Northern District of California granted IES’s habeas petition on the grounds that “his prolonged detention without an individualized hearing violates his procedural due process rights.” A bond hearing was granted to IES. The government appealed this ruling, but their appeal was dismissed.
In fall 2023, IES was released on bond. A week later, the IJ granted him protection under CAT. IES is now back home with his wife and children. He can now get a work permit and cannot be deported to Mexico.
In the triumph of IES’s journey from detention to liberation, our team found a beacon of hope and resilience. The hunger strikes, the legal battles, and the relentless pursuit of freedom for IES were not in vain. As our clinic celebrates his freedom, we are grateful to our partners—advocacy groups in California and lawyers and public defenders who provided advice and guidance on appeal and zealously advocated for IES on remand—and to IES’s family, who never stopped providing support and information despite their own personal struggles.
The clinic’s fight for immigration justice is far from over, but IES’s triumph serves as inspiration to press onward and advocate for other clients who are plagued by inequities in our immigration system.
2) Asylum granted!
Beginning in spring 2023, a group of thirteen 1L and advanced Immigration Law & Advocacy Clinic students worked tirelessly to file individual asylum applications for a family from Afghanistan. The clients had their interviews in April, and the clinic just received the good news that the requests were approved. Congratulations to the team!
Part of the legal team is pictured here (from left): Katie Rahmlow ’23, client, client, Don Izekor, Esq. ’23, Alisa Whitfield, interpreter Hamid Rezaee (CIS ’26), Jaclyn Kelley-Widmer, client, Amy Godshall ’23.
Not pictured: Deborah Morales ’25, Oscar F. Ruiz ’25, Nathaniel Squires ’25, Rodrigo Tojo Garcia ’25, Aaliyah Channer ’25, Yubin “Lucy” Oh ’25, Arina Gorokhovska ’25, Miriam Mars ’24, Tori Staley ’23, Jared Flanery ’23.
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Congrats to the “next wave” of the relentless NDPA!
These are outstanding examples of why claims that unrepresented individuals receive constitutionally-required due process in Immigration Court are absolute poppycock! They also illustrate why responsible legislators and policy makers should be investing in representation rather than just spending wildly and fruitlessly on “gonzo” immigration enforcement.
No single nation, no matter how rich and powerful, can unilaterally change 21st century worldwide patterns of forced migration, which is what is generating the humanitarian situation at our Southern Border. But, we can more effectively address due process issues in our Immigration Courts, the “retail level” of the U.S. justice system!
Join us for a free webinar Tuesday February 6 at 2 pm EST on Immigration Slavery in America: A True Story of Forced Labor and Liberation
Author Saket Soni and panelists will discuss his book The Great Escape, which tells the astonishing true story of a group of immigrants trapped in the largest human trafficking scheme in modern U.S. history. Weaving a deeply personal journey with a riveting tale of modern-day forced labor, The Great Escape — named a 2023 best book of the year by the New York Times, NPR, and Amazon — takes us into the hidden lives of the foreign workers that America relies on to rebuild after climate disasters.
Saket Soni is a labor organizer and human rights strategist working at the intersection of racial justice, migrant rights, and climate change. Joining him on the webinar is New Yorker staff writer Sarah Stillman, who writes on immigration and detention issues. Cornell Law School professor Stephen Yale-Loehr will moderate the discussion. Among other things, the panelists will put this tale of human slavery into the larger context of our broken immigration system.
Undoubtedly, if the plans of a “bipartisan” group of legally and morally challenged politicos to effectively do away with our legal asylum system comes to fruition, it will feed the extralegal system run by cartels and smugglers, thereby leading to even more exploitation of migrant labor in America!
The outcry of those claiming the United States has an “open border” reminds me of the “everything must go” or “for a limited time only” advertisements. People come only to discover it’s a bait and switch. Let me be clear: Migrants are not risking their lives solely because they believe false claims that the border is open. The overwhelming majority are fleeing desperate situations in their home countries; however, the drumbeat of “open borders ending soon” lends an urgency to their plight. Apprehensions of migrants entering illegally in December 2023 are projected to be a record high of 302,000.
The irony is that many conservative members of Congress try to blame the Biden administration for the surge in migrants, even though the U.S. Supreme Court has long interpreted the Constitution as giving Congress plenary power over immigration. Since the 19th century, this authority of Congress to control our national borders and determine whether a foreign national may enter or remain has been preeminent.
The executive branch is able to work only along the margins of immigration law through regulations and executive orders. When the Obama, Trump and Biden administrations tried to push these tools, the federal courts typically stopped them. Recent research by the Bipartisan Policy Center analyzing the border policies of the Obama, Trump, and Biden administrations alongside apprehension data did not find clear-cut evidence that any particular executive branch action was more effective than another.
. . . .
As others and I have stated, the migration pressures at the U.S. southern border are not due to lack of enforcement of U.S. law; instead, these pressures result in part from laws written to address migration flows that differed sharply from the numbers of people we are dealing with today. Current law is based on the assumption that most migrants apprehended along the southern border are solo adults who can be turned back easily because they are motivated by economic reasons. Yet migrants today include many more families and children, people fleeing violence, people displaced by climate change, people leaving failed states, and people who are being persecuted — people who are afforded protections under U.S. law.
Regrettably, the House-passed border security legislation, as well as several of the other alternatives Congress is discussing, naively offers to tighten up the enforcement and narrow the categories of people who might be eligible to enter. Do they really think that raising the bar will deter people who are running for their lives? Such reforms portend an increase in the urgency of desperate people and ensuing chaos.
Immigration has always been a phenomenon that drives America’s success story, that undergirds our greatness. Time is overdue for us to reform our immigration laws — to create new pathways and update the old ones — to better reflect the national interest and our values. It will not be easy, as few critical issues are, but it is imperative that Congress gets to work.
Ruth E. Wasem is senior fellow at College of Public Affairs and Education, Cleveland State University. She has more than 30 years of experience in U.S. domestic policy, including immigration, employment, and social welfare policies.
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Read Ruth’s full article at the link! Also, congrats, Ruth, on your new appointment as Senior Fellow at the College of Public Affairs and Education, Cleveland State University!
As Ruth points out, the reason why all reputable studies show little if any relationship of forced migration to changing precedents and policies in “receiving nations,” is in the nature of forced migration. Forced migration is forced by combinations of conditions at or near the “sending” countries that operate largely without regard to unilateral actions in the U.S. or any other major receiving nation or group of nations.
At best, such futile unilateral actions have marginal, transitory effects, usually by forcing strategy adjustments and pricing changes within the world of human smuggling. But, like most markets, the human trafficking market eventually adjusts and the next, largely self-inflicted, “border crisis” ensues.
And thus, the cycle continues, with receiving nations investing more and more and doubling down on “proven to fail” cruelty and deterrence. Rather than acting rationally and responsibly — by listening to experts and those with experience managing refugee migrations — politicos falsely claim that the reason for their failed policies were that they weren’t draconian or expensive enough. But, throwing more money and personnel exclusively at enforcement and deterrence never works in a practical sense.
What it does do, however, is give certain moneyed groups a huge interest in uncontrolled border militarization. It also causes cynical politicos, largely but not exclusively on the right, to invest in sure to fail policies that will be a rallying point for White Nationalists without actual disrupting the supply of exploitable, disenfranchised, largely disposable “cheap labor” popular with many U.S. businesses and political contributors.
Ruth’s article states important truths about the border and migration echoed by expert after expert that are consistently, shamefully, and improperly being ignored by legislators and other politicos. For example, another leading “practical scholar,” Professor Stephen Yale-Loehr of Cornell Law recently “warned that detaining and quickly expelling migrants before asylum screenings would not solve the influx problem for cities like New York, which is grappling with a surge of migrants.” Read more: https://loom.ly/CLCoxqA.
Professor Stephen Yale-Loehr Cornell Law
So cowardly and misguided is the GOP’s approach that they waste public funds on a disingenuous “show trip” to the Texas border, but lack the guts and human decency to meet with and listen to the folks actually affected by their toxic policies and proposals.
Melissa Del Bosque Border Reporter PHOTO: Melissadelbosque.com
As reported by Melissa del Bosque in The Border Chronicle (in her overall discouraging and depressing forecast of the deadly political shenanigans that will be rolled out by GOP nativists during the 2024 campaign):
MAGA extremists in the House of Representatives, holding emergency funding hostage for Ukraine, cut out early from Congress for Christmas vacation, but they were willing to shorten their holiday break to make an appearance in Eagle Pass, Texas, on January 3, setting the tone for the coming months leading up to the general election. House Republicans will begin holding hearings on border security in February and are planning to impeach DHS secretary Alejandro Mayorkas.
In Eagle Pass, House Speaker Mike Johnson, along with 60 other Republicans, held a press conference in front of coils of razor wire placed along the Rio Grande by Texas governor Greg Abbott’s Operation Lone Star. During the visit, Republicans declined to meet with local community leaders who had erected a public memorial in Eagle Pass for more than 700 people who had died trying to cross the border in 2023.
Expert organizations, like the Center for Migration Studies (“CMS”) with decades of experience studying what works and what doesn’t at the border have offered straightforward plans for “Managing the Border Without Sacrificing Human Rights,” only to have them arrogantly and insultingly ignored by Congress and the Biden Administration. See https://cmsny.org/statement-manage-border-without-sacrificing-human-rights/.
Michael Posner, Professor & Director, Center for Business and Human Rights at NYU Stern School of Business PHOTO: Linkedin
Long-time refugee expert/scholar Professor Michael Posner, writing in Forbes, also offers a far more nuanced and realistic approach to the b order that both parties are ignoring:
Rather than enacting the draconian measures Republicans are now proposing that will, in effect, deny everyone their right to seek asylum, the goal should be to strengthen the system so that the cases of genuine refugees are heard quickly, while those who don’t qualify are placed in deportation proceedings. The way forward is not to curtail everyone’s right to seek asylum, but to make the system both fairer and more efficient.
The idea that the constitutional right to due process and fundamental fairness and the right of refuge guaranteed by international agreements that we signed and long-standing domestic implementing laws are “negotiable” is simply outrageous and fundamentally un-American!
Meanwhile, Dems cower and run away from the border issue, apparently irrationally believing that ignoring it and ceding ground to the GOP will “make it go away” in 2024. News Flash: It won’t!
Sadly, while experts and advocates who actually understand the border and migration fruitlessly rally, demonstrate, write op-ed’s, and file research-backed reports in favor of protecting asylum rights, Senate Dems by most accounts are busy negotiating them away in response to GOP demands. See, e.g.,https://www.washingtonpost.com/politics/2024/01/10/senate-border-ukraine-negotiations/.
Ignoring the advice of experts and acting out of fear, myths, and bias seems to be the “order of the day” for both parties!🤯That’s a national problem that won’t be solved by ever more extreme and wasteful doses of cruelty, repression, and bogus “deterrence,” no matter how politically and financially profitable continued failure might be to some within our nation’s power structure.
As predicted by experts from the “git go,” AG Merrick Garland’s indolent, half-baked approach to his most important responsibility — bringing justice and functionality to his Immigration Courts, has been a disastrous failure endangering our entire democracy! PHOTO: Thomas Hawk Creative Commons Amateur Night
Here’s the latest report from TRAC documenting how former Federal Judge Merrick Garland’s failure to fulfill his most important duty — reforming and fixing the U.S. Immigration Courts, has built backlog at record paces and undermined our democracy:
Here’s the “action plan” that’s been publicly available since July 2023 — “Rethinking The U.S. Immigration Court System” — yet largely, and disastrously ignored by Garland, his lieutenants, and the Biden Administration:
The U.S. immigration courts—and the nation’s immigration enforcement system they support—face
an unprecedented crisis. With a backlog of almost 2 million cases, it often takes years to decide cases. Moreover, the recent growth in the caseload is daunting. In fiscal year (FY) 2022, immigration courts received approximately 708,000 new cases, which is 160,000 more than in any previous year. Such numbers, coupled with the courts’ resource constraints and decision-making processes, ensure that the court system will continue to lose ground.
For asylum cases, which now make up 40 percent
of the caseload, the breakdown is even more dire. Noncitizens wait an average of four years for a hearing on their asylum claims to be scheduled,
and longer for a final decision. Those eligible for protection are thus deprived of receiving it in a timely manner, while those denied asylum are unlikely
to be returned to their countries of origin, having
established family and community ties in the United
States during the intervening years. The combination
of years-long backlogs and unlikely returns lies at the
heart of our broken asylum system. That brokenness contributes to the pull factors driving today’s migration to the U.S.-Mexico border, thereby undermining the integrity of the asylum and immigration adjudicative systems, and immigration enforcement overall.
Many of the factors contributing to the dramatic rise in the courts’ caseload have deep and wide-reaching roots, from long-standing operational challenges in administering the courts to new crises in the Americas that have intensified both humanitarian protection needs and other migration pressures. The scale of these twin challenges has made it more urgent than ever to address them together. In the aftermath of lifting the pandemic-era border expulsion policy known as Title 42 in May 2023, the Biden administration is implementing wide-ranging new border policies and strategies that establish incentives and disincentives linking how migrants enter the United States with their access to the asylum system. But timely, fair decisions are also central to the success of this new regime.
While many other studies have outlined wholesale changes in the immigration court system that only Congress can enact, such legislative action seems unlikely, at least in the near term. Thus, this report calls
for changes that can be made by the Executive Office for Immigration Review (EOIR), the agency within the Department of Justice (DOJ) that houses the immigration courts, as it is presently organized. Because the immigration courts are administrative bodies, the executive branch has considerable latitude in determining their policies and procedures. The changes laid out in this report hold great potential to improve the courts’ performance and, in turn, enhance the effectiveness of the U.S. immigration system more broadly.
Some steps in this direction are already being taken. The Biden administration has streamlined certain important policies and procedures at EOIR. Nonetheless, these courts and the Board of Immigration Appeals
2 million
cases in the backlog
About 650
immigration judges nationwide
Less than 500
cases completed per judge in most recent years
1
AT THE BREAKING POINT: RETHINKING THE U.S. IMMIGRATION COURT SYSTEM
(BIA), which reviews appeals from immigration court decisions, fall short of meeting the hallmarks of a well- functioning adjudicatory system: that decisions be accurate, efficiently made, consistent across both judges and jurisdictions, and accepted as fair by the public and the parties in the case.
Related issues of caseload quantity and decision quality have given rise to the difficulties EOIR is confronting. Under the Trump administration, the reopening of thousands of administratively closed cases and increased interior enforcement led to rising court caseloads. And since 2016, increased border crossings have accounted for growing numbers of new cases, many of them involving asylum claims.
Cases are also taking longer to complete. While pandemic-related restrictions played a role in this slowdown, case completion rates had in fact already been declining. In FY 2009, each immigration judge completed about 1,000 cases per year. By FY 2021, the completion rate had decreased to slightly more than 200 cases per year, even as the number of immigration judges grew. Thus, more judges alone are not the answer. Slow hiring, high turnover, and a lack of support staff have resulted in overwhelmed judges whose productivity has decreased as the backlog has grown.
Concerns about the quality of decision-making by immigration courts and the BIA have existed for decades. More than one in five immigration court decisions were appealed to the BIA in FY 2020, and appeals of BIA decisions have inundated the federal courts. Federal court opinions have pointed to errors of statutory interpretation and faulty reasoning when overturning decisions. Policy changes at
the BIA, ever-changing docket priorities from one
administration to the next, and some recent Supreme
Court directives have contributed to the diminished
adjudicative quality. Wide variances in case outcomes among immigration judges at the same court and across different courts around the country further point to quality concerns; for example, the rate at which individual immigration judges denied asylum claims ranged from 1 to 100 percent in FY 2017–22.
EOIR has increasingly turned to technology to manage its dockets, primarily through video-conferencing court proceedings. The COVID-19 pandemic accelerated its use of internet-based hearings. Four important, yet at times competing, considerations are central when evaluating how technology—and particularly video-conferencing tools—are used in immigration proceedings: efficiency, the impact of technical difficulties, security issues, and concerns about due process.
The U.S. Immigration and Customs Enforcement (ICE) attorneys who prosecute removal cases also play an important role in the court system. Their use of prosecutorial discretion, along with judges’ docket management tools, help shape which cases flow through the system, and how.
Legal defense representation—or the lack of it—is a critical issue plaguing the immigration court system. Noncitizens in immigration proceedings, which are civil in nature, are not entitled to free legal counsel, as
The rate at which asylum claims are denied varies widely, from
1% with one judge to
100%
with another in FY 2017-22
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AT THE BREAKING POINT: RETHINKING THE U.S. IMMIGRATION COURT SYSTEM
defendants in criminal proceedings are. But they can face life-changing, and sometimes life-threatening, circumstances when subject to an order of removal from the United States. Studies have repeatedly found that representation in immigration proceedings improves due process and fair outcomes for noncitizens. It also improves efficiency, as represented noncitizens move more quickly through immigration court. Lawyers, accredited representatives, immigration help desks, and legal orientation programs aid some noncitizens through this process. But many more move through complex proceedings pro se (i.e., unrepresented).
Federal funding for representation of noncitizens in removal proceedings is effectively barred. Public funding at the state and local levels has increased the availability of representation for some noncitizens. A large share of representation is provided by nonprofit legal services organizations and pro bono law firm resources. Nonetheless, representation is fragmented and insufficient, given the scale of need.
One element of this system that has seen notable signs of change in recent years has been how border management feeds into the courts’ caseload. The Biden administration began implementing a new
asylum processing rule at the southwest border in June 2022 that aims to ease the growing pressures on immigration courts.1 The rule authorizes asylum officers, who are part of U.S. Citizenship and Immigration Services (USCIS) in the Department of Homeland Security (DHS), to make the final decision in asylum cases instead of immigration judges. Asylum seekers whose claims are denied by an asylum officer can still appeal the decision, but on an expedited timeline. As such, the rule holds the potential to reduce the growth of the immigration court backlog and shorten adjudication times to months instead of years.
Since lifting the Title 42 expulsion policy, the Biden administration has paused implementation of the asylum rule due to competing demands for asylum officer resources. But returning to the rule, and strengthening EOIR’s functioning overall, will be important for managing the flow of cases into the immigration courts and the courts’ ability to keep pace with them. Doing so depends on the court system using technology better, more strategically exercising discretion in removal proceedings, and increasing access to legal representation so that courts deliver decisions that are both timely and fair.
This report’s analysis of the issues facing the nation’s immigration courts and its recommendations for addressing them reflect research and conversations with a diverse group of stakeholders—legal service providers, immigration lawyers and advocates, current and former immigration judges, BIA members and administrators, academics, and other experts who have administered, practiced before, and studied the immigration court system. The report urges EOIR and DHS, in its role as the agency whose decisions and referrals come before EOIR, to work together to:
Strengthen the immigration court system’s management and efficiency
► Schedule new cases on a “last-in, first-decided” basis. Such a reset to the system, which has proven successful in the past, could bring processing times on new cases down to months, rather than years.
1 This rule draws in part on proposals made in an earlier Migration Policy Institute (MPI) report: Doris Meissner, Faye Hipsman, and T. Alexander Aleinikoff, The U.S. Asylum System in Crisis: Charting a Way Forward (Washington, DC: MPI, 2018).
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AT THE BREAKING POINT: RETHINKING THE U.S. IMMIGRATION COURT SYSTEM
Because this disadvantages cases that have already been waiting for a long time, it should be treated as a temporary, emergency measure alongside policy and procedural reforms that protect fairness and promote efficiency more broadly. Shifting resources back to adjudicating older cases, as timeliness is established with incoming cases, is essential for shrinking the growth and size of the backlog, which should be among the courts’ highest priorities.
► Terminate cases that do not meet the administration’s prosecutorial guidelines, which focus priorities on felons, security threats, and recent entrants. One approach to this would be to task ICE attorneys with triaging backlog cases to determine which could be fast-tracked for grants of relief or for removal. Such efforts would allow the courts and ICE attorneys to focus on more serious cases, especially those involving criminal charges.
► Centralize case referrals from DHS. Instead of the current practice of having all three DHS immigration agencies (ICE, USCIS, and U.S. Customs and Border Protection) refer cases separately to EOIR, ICE attorneys should initiate all cases. As de facto prosecutors, they are best positioned to determine the legal sufficiency and priority for moving cases the government has an interest in pursuing.
► Establish two tiers of immigration judges—magistrate and merits judges—modeled on existing state and federal court systems where judges and staff are assigned to different roles or dockets so that cases move through the adjudication system efficiently and expeditiously.
► Expand the use of specialized dockets or courts that handle cases involving specific groups of noncitizens or require certain subject matter expertise, such as juveniles, families, reviews of credible fear determinations, cancellation of removal, adjustment of status, and voluntary departure.Restart the asylum officer rule and provide the support needed to implement it
► Establish a dedicated docket for the asylum officer rule’s streamlined appeal proceedings. As the most far-reaching reform the Biden administration has introduced for strengthening management of the asylum and immigration court systems, implementing the rule effectively is key to reducing the pace of caseload growth in the court system and discouraging weak claims.
Upgrade how the courts use technology
► Ensure that technology is used to make immigration courts fairer for everyone involved, such as by holding hearings remotely when parties would be unable to attend an in-person hearing. Special attention should be paid to how the use of technology can affect detained noncitizens and vulnerable populations such as children.
Increase access to legal representation
► Establish a new unit within EOIR devoted to coordinating the agency’s efforts to expand representation. The unit should collaborate with nongovernmental stakeholders to make representation of detained noncitizens a priority and to allow partially accredited representatives— some of whom may be non-lawyers—to appear in immigration court for limited functions.
4
AT THE BREAKING POINT: RETHINKING THE U.S. IMMIGRATION COURT SYSTEM
► Develop new and innovative ways to scale up representation by coordinating with lawyers who take responsibility for specific aspects of cases or non-lawyers who are specially trained and supervised
to do so. Legal service providers should build a multi-stage, collaborative online system that enables representation by lawyers or non-lawyers in specific stages of a case for which they have the requisite expertise (e.g., filing forms, attending bond or master calendar hearings, or seeking relief ). This approach requires creating e-files for cases, with files moving from one representative or provider to another as cases progress, resulting in both expert representation at each stage and greater efficiency in moving cases forward overall.
► Encourage efforts by state and local governments to provide and/or increase funding to support representation, especially given current restrictions on federal funding of representation in most removal cases.
Despite efforts by successive administrations to bring
the immigration court system’s unwieldy caseload
under control and to improve the quality of its
decision-making, the courts remain mired in crisis.
And while many of the most pressing problems have
roots that stretch back decades, they have in recent
years reached a breaking point. The measures
proposed in this report hold the potential to reduce
case volumes, increase the pace of decision-making,
and improve the quality of adjudications. They would
also mitigate migration pull factors that result from
years-long waits for decisions. The deeply interconnected nature of the nation’s immigration court system and its immigration enforcement and asylum systems mean that such efforts to modernize and fully resource the courts are critical to the health of the U.S. immigration system overall.
The deeply interconnected nature of the nation’s immigration court system and its immigration enforcement
and asylum systems mean that such efforts to modernize and fully resource the courts are critical to the health of the U.S. immigration system overall.
BOX 1
About the Rethinking U.S. Immigration Policy Project
This report is part of a multiyear Migration Policy Institute (MPI) project, Rethinking U.S. Immigration Policy. At a time when U.S. immigration realities are changing rapidly, this initiative has been generating a big- picture, evidence-driven vision of the role immigration can and should play in America’s future. It provides research, analysis, and policy ideas and proposals—both administrative and legislative—that reflect these new realities and needs for immigration to better align with U.S. national interests.
The research, analyses, and convenings conducted for MPI’s Rethinking initiative address critical immigration issues, which include economic competitiveness, national security, and changing demographic trends, as well as issues of immigration enforcement and administering the nation’s immigration system.
To learn more about the project and read other reports and policy briefs generated by the Rethinking U.S. Immigration Policy initiative, see bit.ly/RethinkingImmigration.
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Read the full report at the link.
Not the first time I’ve said this, but it’s time for “Amateur Night @ The Bijou” (“A/K/A Merrick Garland’s failed EOIR”) to end! Reassign the EOIR senior management folks who have demonstrated “beyond any reasonable doubt” their inability to provide dynamic, due process with efficiency management and visiononary leadership and to solve pressing problems. (This includes the inability to stand up and “just say no” to bonehead “gimmicks” like Garland’s due-process-denying, quality diminishing, backlog-building, “expedited dockets”).
It’s not an exaggeration to say that the anti-asylum, anti-human rights, anti-reality charade now playing out in Congress is driven in large part by Garland’s three-year failure to do his job by getting functionality and due process focused leadership into EOIR.
Bring in a competent, expert executive team, hand them the MPI Plan, and empower them to move whatever “bureaucratic mountains” need to be moved to get results, including, but not limited to, major personnel changes at the BIA and in Immigration Courts and taking a “hard line” with counterproductive performance by DHS (actually “just a party” before the Immigration Courts, NOT “their bosses!”)
Bring in these experts:
Judge (Retired) Dana Leigh Marks
Professor Stephen Yale-Loehr
Dean Kevin Johnson
Michelle Mendez (NIPNLG)
Professor Michele Pistone
Jason “The Asylumist” Dzubow
Wendy Young (KIND)
Task this “Magnificent Seven” — folks with centuries of practical expertise and creative ideas for actually solving humanitarian problems (rather than making them worse, as per the ongoing travesty on the Hill) — with turning around the EOIR disaster; support and empower them to achieve results and to reject politicized bureaucratic meddling from DOJ and elsewhere! Make the long-unfilled “promise of INS v. Cardoza-Fonseca” — a legitimate, properly generous, practical, efficient asylum and refugee adjudication system that complies with international and domestic law and simple human decency — a reality!
This is about rebuilding America’s most important and consequential court system, NOT running an “government agency!”
This is also the “demand” that Congressional Dems SHOULD be making of the Biden Administration, instead of engaging in disgraceful (non) “bargaining” with GOP nativists that seek an end to asylum and an increase to human suffering and ensure continuing humanitarian disaster at our borders!
Ithaca, NY – As Congress considers border security issues in upcoming appropriations debates, four immigration scholars at Cornell Law School suggest opportunities for constructive, achievable, and sustainable immigration reforms. In a recent white paper they offer three sets of interlocking proposals structured to maximize bipartisan support: (1) strengthening border security; (2) adding work visas; and (3) offering deportation protection to DREAMers.
The Cornell scholars will assess the political landscape, describe their proposals, and outline why they believe the proposed reforms should—and could—be enacted.
WHEN: Thursday, November 9, 2023 at 12:00 PM Eastern
WHO:
Stephen Yale-Loehr, Professor of Immigration Practice and Director, Immigration Law and Policy Program, Cornell Law School
Some Republican lawmakers are flagging Hamas’ attack on Israel as an example of why more security is needed at the southern U.S. border. Hamas militants breached a border fence and attacked Israeli villages bordering the Gaza Strip on Oct. 7.
“Potential terrorists are attempting to cross our southern border. In September alone, 18 illegal immigrants on the terror watchlist were caught at the border,” U.S. Sen. Marsha Blackburn, R-Tenn., posted Oct. 21 on X. “The attack on Israel should serve as a warning as to why we must secure the border.”
The next day, U.S. Rep. Kevin McCarthy, R-Calif., also mentioned the terrorist watchlist on NBC’s “Meet The Press.”
“We just caught 18 people, just last month, on the FBI terrorist watchlist, coming across our border,” McCarthy said. “More than 160 have done it this year, a record breaking.”
U.S. immigration officials have encountered rising numbers of people on the watchlist. But not everyone on the list is a terrorist, and not everyone encountered is allowed to enter the country.
Terrorism and immigration experts say that the threat of attacks in the U.S. and Israel are incomparable.
“They both involve borders, but the comparison ends there,” David Bier, an immigration expert at the libertarian Cato Institute, previously told us. “People aren’t crossing the border to conduct terrorist attacks or take over parts of the United States. A very small percentage may come to commit ordinary crimes, like selling drugs, but overwhelmingly, they are coming for economic opportunity and freedom.”
McCarthy’s office did not respond to our query for more information. A Blackburn spokesperson pointed us to a Fox News reporter’s post on X. Customs and Border Protection did not confirm whether 18 people were stopped in September.
Here’s what we know about who is on the terrorist watchlist, and what the data can and can’t tell us.
. . . .
*********************
Read Maria’s complete article which includes comments from real experts like Professor Stephen Yale Loehr, Professor Denise Gilman, Aaron Reichlin-Melnick, and others in addition to David Bier. They stand in sharp and long overdue contrast with the GOP’s alarmist, out of context, claims.
It’s little wonder that a party of anti-democracy activists, insurrectionists, and election deniers would want to deflect attention from themselves onto folks who are overwhelmingly coming to save their lives and to work hard and contribute to our economic growth!
I have previously “called out” Kristen Welker and NBC’s Meet the Press for giving McCarthy an unnecessary public forum for his alarmist narrative. See, e.g.,https://immigrationcourtside.com/2023/10/23/🚩politics-gops-bakuninist-clown-show-sows-american-chaos🤮☠️/. Worse yet, there was no effective “pushback” from Welker on McCarthy’s attempt to blame vulnerable asylum seekers for the political disorder and threats to our democracy that he and his righty GOP buddies helped sow!
Many thanks to Maria for setting the record straight and to the experts who were interviewed from her article!You actually did the “due diligence” that Welker and others often brush off when “doing immigration.”
Of course border security is important! A significant, achievable improvement would be to establish a fair, timely, functional asylum screening and adjudication system at ports of entry so that those seeking asylum will be motivated to use it (rather than attempting to “punish” and “deter” those who can’t use the current dysfunctional DHS/EOIR “system.”) That would give CBP a chance to concentrate on the real law enforcement challenge: identifying and stopping those who seek to harm the U.S. That’s going to take even better intelligence and more sophisticated efforts.
I also wouldn’t minimize that, as pointed out by the experts, CBP has been able to identify and deny entry to individuals on their list. That’s a sign of success, not failure!
To state the obvious, further cutting or restricting asylum (as many in the GOP disingenuously advocate) would only force even more of those seeking refuge into the hands of smugglers and push them into the dangerous lands between ports of entry. Misdirecting enforcement resources to fruitlessly and improperly trying to “deter” and “apprehend” those legitimately seeking refuge will only further dilute the attention that CBP can pay to any real dangers lurking at the border!
Professor Stephen Yale-Loehr Cornell LawMuzaffar Chishti Senior Fellow Migration Policy Institute PHOTO: MPI
The Migrant Surge: What’s Different About It This Time?
Please join us on November 7, 2023, from 12:15 p.m. to 1:15 p.m. in Myron Taylor Hall G85 of Cornell Law School for a lunchtime seminar given by our guest Muzaffar Chishti and moderated by Stephen Yale-Loehr.
Join Mr. Chishti and Professor Yale-Loehr as they discuss the history of recent migrant flows to the U.S. border, the current migrant surge at the border, the impact on cities and states beyond the border, and possible impacts on federal immigration policy.
Muzaffar Chishti is a Senior Fellow at the non-partisan Migration Policy Institute (MPI) and Director of MPI’s office at New York University School of Law. He received his LLM from Cornell Law School in 1975.
Steve Yale-Loehr teaches immigration and asylum law at Cornell Law School as Professor of Immigration Practice and is of counsel at Miller Mayer in Ithaca, New York.
Can’t make it to our event in-person? You can attend virtually!
The Title 42 farce instituted by Trump, under false pretenses, to unjustly suspend asylum laws has expired. But, the Biden Administration has come up with its own scofflaw regulations and policies intended to “meter” the flow of legal asylum seekers at ports of entry and to improperly “punish” those who exercise their legal rights by entering and turning themselves in to CBP. Biden’s BIA continues to churn out unrealistic hyper-technical asylum precedents (that actually fly in the face of precedents like Cardoza-Fonseca and Mogharrabi) and wrong, anti-asylum decisions intended to “deter and discourage” asylum seekers from applying and to make it unnecessarily difficult, frustrating, and time consuming for pro bono lawyers to represent them!
Contrary to the nativist myths, the U.S. does NOT bear the brunt of increased forced migration! Even in the Western Hemisphere, Colombia has many times more displaced Venezuelans than the U.S. Indeed, the U.S. experience, no matter how much it’s hyped or distorted by nativists and shallow media alarmists, is only a relatively modest slice of the pie. Over three quarters of the world’s forced migrants end up in low and middle income countries outside the U.S. https://www.unhcr.org/sites/default/files/2023-06/global-trends-report-2022.pdf. Yet, you would never know that from listening to the apocalyptic narrative of GOP nativists and their Dem “fellow travelers!”
Years of cruelty, dehumanization, fortification, imprisonment, prosecution, endangerment, harsh laws, family separations, racist rhetoric, illegal turn backs, and summary deportations of asylum seekers in the U.S. and at the border have demonstrably, and quite predictably, failed to stop or materially deter forced migration stemming from causes outside of U.S. legal policies. Yet, most of our “dialogue” about the U.S. border and immigration start with the bogus assumption that closing the border and unilaterally suspending due process and domestic and international legal obligations will effectively create “Fortress America” where no migrant will dare to tread!
A real discussion of the border and migration must reject nativist myths, racist tropes, and media alarmism by starting with the truth. That is:
Human migration is a real and inevitable worldwide phenominon;
No one nation-state can unilaterally stop or prevent human migration;
Because of climate change and political instability in the world, forced migration is likely to increase in the foreseeable future;
Seeking asylum is a basic legal and human right;
The U.S. will have to accept more migrants, whether legally (preferable)or extralegally (the alternative).
Only by “ditching” and getting beyond nativist myths can we develop solutions that will deal realistically and humanely with human migration. I’m hoping that these two knowledgeable migration and legal experts can get us beyond the myths and to a discussion of practical, achievable actions!
Paul: Thanks to the excellent work of our law students, our Cornell asylum clinic received three BIA remands this spring. A short summary of each case follows. A longer summary of each case is attached, as well as redacted versions of the BIA’s decisions. If anyone wants redacted copies of our briefs, have them contact me directly.
Please mention on Immigration Courtside. Thanks, Steve
1: IES is a citizen of Mexico and a former gang member. The immigration judge (IJ) denied withholding and CAT relief, holding that his conviction in California was a particularly serious crime and that our client did not meet the requirements for CAT relief. For the particularly serious crime argument, our brief argued that the IJ improperly analyzed IES’ offense, ignored credible evidence that the drugs were for personal use, and relied on boilerplate sentencing documents instead. As a result, the IJ failed to analyze IES’s motivation and intent at the time of the offense. We used case law where crimes like sexual contact with a minor (Afridi v. Gonzalez) and strangulation (Flores-Vega v. Barr) were remanded because the facts and circumstances of the offense had not been considered.
For our CAT argument, we focused on 6 IJ errors: 1) the IJ did not consider that his prolonged mental pain would cause future torture (we had psychological evaluation reports and decided to use them for this argument). This is an underutilized argument in CAT claims, so there isn’t much case law. We used the interpretation from an OLC opinion on prolonged mental harm to bolster this argument. 2) The IJ did not consider future torture from gangs and cartels despite an expert saying this risk was at 80%. 3) The IJ did not consider country conditions and did not admit 400 pages into evidence. 4) The IJ mischaracterized his attempts to flee cartels 8 times as “relocation.” 5) The IJ did not think there was police acquiescence even though the police, the local Attorney General, and the judicial police ignored IES’ complaints. 6) The IJ did not aggregate IES’ risk of torture. The BIA remanded.
2: LRG is a citizen of El Salvador who fled to the US in 1989. While in the US he joined the MS-13 gang. He is in U.S. prison for a criminal conviction. The IJ denied withholding and CAT relief. Our client’s info was part of the November 2022 ICE data leak, but the IJ did not address that concern.
Our brief argued that our client is more likely than not to face torture if removed to El Salvador. We posited several theories under which our client is likely to be tortured: 1) by the Salvadoran government, especially if our client is incarcerated there; 2) by Salvadoran gangs, in or out of prison, with the acquiescence of the Salvadoran government; and/or 3) by Salvadoran anti-gang death squads, with the participation or acquiescence of the Salvadoran government. We argued that our client’s identifying characteristics, including his gang tattoos and criminal history, would subject him to targeting and torture by any of these groups. We also argued that the IJ insufficiently aggregated our client’s risk of torture in El Salvador and that the IJ erred by failing to consider the impact of the ICE data leak on our client. Finally, we argued that the IJ afforded insufficient weight to the evidence offered by our client. The IJ admitted Dr. Patrick McNamara’s universal expert declaration only as background evidence, rather than for his expert opinions. The BIA remanded.
3: REC is a citizen of El Salvador who fled to the US in 2022. REC was not a gang member, but his brother was, and was killed by the police. REC’s family filed a lawsuit against the police for murdering REC’s brother, and the police retaliated against REC. The IJ denied asylum, withholding, and CAT relief.
On asylum and withholding, we argued that the IJ erred by ignoring the Salvadoran government as a persecutor of REC and by failing to assess the proper particular social group that REC had proposed, based on his membership in his family. On CAT, we argued that the IJ effectively ignored part of REC’s claim by failing to analyze whether the MS gang would be more likely than not to torture him. We further argued that the IJ’s analysis about the Salvadoran government as a torturer of REC was flawed because the IJ herself found that Salvadoran officials “misused their power” when they beat him. We argued that the IJ also erred because she did not aggregate all potential sources of torture, including the government and the MS gang. The BIA remanded.
Stephen Yale-Loehr
Professor of Immigration Law Practice, Cornell Law School
Faculty Director, Immigration Law and Policy Program
Emily Garcia Litigation Reporter Bloomberg Law PHOTO: talkingbiznews.comThis phase of the Inquisition is over. But, torture is still widely practiced worldwide. US Officialdom has shown little enthusiasm for carrying out its mandatory protection responsibilities under the Convention Against Torture (“CAT”). PHOTO: Public Realm
The Supreme Court recently removed one procedural hurdle for noncitizens seeking humanitarian relief but the high court’s ruling clears up no substantial issues about a law they’ll make their claims under, immigration attorneys say—allowing some relief seekers to be sent back to torturous conditions.
Estrella Santos-Zacaria, a Guatemalan transgender woman, asked for federal review of the Board of Immigration Appeals’s decision denying her protection under the Convention Against Torture. In a unanimous decision, the justices said federal judges can weigh in on BIA’s decisions before discretionary administrative remedies are exhausted. In Santos-Zacaria’s case, her petition may be sent back to BIA for further review but that doesn’t guarantee relief.
While lawyers are hopeful that earlier review by a federal court will facilitate a smoother process for their clients, they express concerns that immigration judges and the BIA too readily dismiss the risk of torture, and say it shouldn’t be so difficult to get humanitarian relief.
CAT protections, including deferral and withholding of removal, allow noncitizens who aren’t eligible for asylum to remain in the US. To receive protection, a noncitizen must show an immigration judge that if they are deported, it’s more likely than not that they will be tortured with government acquiescence or participation. Unlike asylum, protections under the Convention are mandatory and serious criminal convictions can’t disqualify a noncitizen. But protections are especially difficult to win, said Eleni Bakst, a lawyer at the Capital Area Immigrants’ Rights Coalition.
. . . .
Paul Schmidt, a former immigration judge and chairman of the BIA between and 2001, said the process for evaluating claims under the Convention isn’t scientific. There’s no formula to plug in that will tell the odds of someone being tortured. “It’s sort of in the mind of the beholder,” Schmidt said.
. . . .
As an immigration judge, Schmidt said he and other immigration judges relied heavily on country conditions reports published by the US Department of State. Asked if he believed the reports were an adequate representation of a country, Schmidt said “certainly not.”
Bakst said statistics provided by other countries can also be inaccurate. In El Salvador, the government doesn’t allow monitoring bodies into its prisons so data on inmate torture is incomplete.
Pushing back against questionable reports and statistics, immigration advocates are aware that immigration judges and the BIA may dismiss their client’s risk of torture, and their client may be tortured anyway.
Such was the case for Patrick Julney, a client of CAIR Coalition who was denied deferral under the Convention for failure to show that the likelihood of torture was more than 50% and deported to Haiti. Bakst said that “immediately upon his arrival in Haiti, he was imprisoned and tortured.” Julney was denied access to food, water, and medicine.
Estelle McKee, a clinical immigration law professor at Cornell Law School, represented a schizophrenic man from El Salvador who was denied CAT relief. After his deportation, McKee hired a Salvadorean attorney to track down her client.
She said the attorney couldn’t even enter her client’s village because it was gang-controlled.
“I don’t have much hope that he survived,” McKee said.
McKee and other immigration attorneys agree that the Supreme Court’s decision will speed up the humanitarian claims process, though results may vary. Julney’s case was reviewed by the Third Circuit, but his outcome was unchanged.
. . . .
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Reads Emily’s full, well-written article at the above link.
A Government colleague once remarked to me that “the U.S. should never have signed the CAT.” Obviously, that private view has permeated and driven USG policy on implementing the CAT, particularly at the DOJ where it was immediately treated as “PNG” because of its lack of exclusionary clauses. Even “bad guys” aren’t supposed to be returned to torture (in terms of legal theory, if not reality).
There is no objective evidence that torture is on the decline worldwide. See, e.g., https://www.amnesty.org/en/what-we-do/torture/. Yet the mandatory protection required by the CAT remains elusive and quite arbitrary within the U.S. legal system.
One of the best examples of how Government officials who should be insuring that the legal protections under CAT are fairly and reasonably applied to achieve the Convention’s purposes are instead promoting an “any reason to deny” culture is former AG John Ashcroft’s precedent decision in Matter of J-F-F-, 23 I&N Dec. 912 (A.G. 2006). There, Ashcroft reversed a CAT grant by the IJ and the BIA to an unrepresented respondent. In the process, Ashcroft established the “enhanced test” that to gain CAT protection, the respondent must “establish that each step in the hypothetical chain of events is more likely than not to happen.”
In other words, this is an official invitation, some might say directive, to IJs to “lengthen the chain of causation until it breaks” (which it inevitably will, in most cases) and protection can be denied.
Moreover, many CAT claims, like this one, involve unrepresented respondents. The chances of an unrepresented respondent understanding the “chain of causation” or what it means to prove “each step is more likely than not to occur” are very slim.
Additionally, even if they did understand, since many of the unrepresented respondents are in detention, they would have little or no realistic chance of obtaining the type of detailed, timely expert testimony and comprehensive documentation, far beyond the DOS Country Reports (which, by the way are only available in English), necessary to overcome Ashcroft’s “de facto presumption of denial” and prove that every step of the “hypothetical chain” is “more likely than not” to happen.
Effectively, every problem mentioned by Emily and expert practitioners in this article is essentially (intentionally) magnified by J-F-F- and other anti-CAT administrative precedents.
CAT relief is mandatory, thus suggesting a high obligation on the part of IJs and other Government officials to insure non-return to torture. Yet, Ashcroft chastises the IJ involved in J-F-F- for essentially insuring that the respondent exercised his legal right to apply for CAT and helping him develop the record. Ashcroft even took the extraordinary step of disqualifying this IJ from any “hypothetical” future proceedings involving this respondent.
At the beginning of the BIA’s quest to interpret CAT (ironically at the same time Bush Administration lawyers at DOJ were secretly searching for legal pretexts to justify torture), I dissented from an unduly restrictive BIA precedent Matter of J-E-, 23 I&N Dec. 291, 304 (BIA 2002), Paul Wickham Schmidt, Board Member, dissenting, joined by Board Members John W. Guendelsberger, Noel Ann Brennan, Cecelia M. Espenoza, and Juan P. Osuna.
There, I stated:
The majority concludes that the extreme mistreatment likely to befall this respondent in Haiti is not “torture,” but merely “cruel, inhuman or degrading treatment.” The majority further concludes that conduct defined as “torture” occurs in the Haitian detention system, but is not “likely” for this respondent. In short, the majority goes to great lengths to avoid applying the Convention Against Torture to this respondent.
We are in the early stages of the very difficult and thankless task of construing the Convention. Only time will tell whether the majority’s narrow reading of the torture definition and its highly technical approach to the standard of proof will be the long-term benchmarks for our country’s implementation of this international treaty.
Although I am certainly bound to follow and apply the majority’s constructions in all future cases, I do not believe that the majority adequately carries out the language or the purposes of the Convention and the implementing regulations. Therefore, I fear that we are failing to comply with our international obligations.
I conclude that the respondent is more likely than not to face officially sanctioned torture if returned to Haiti. Therefore, I would grant his application for deferral of removal under the Convention Against Torture and the implementing regulations. Consequently, I respectfully dissent.
More than two decades after J-E-, my fears and predictions of officially-sanctioned non-compliance with CAT unfortunately continue to be proved correct.
I also note with pride that our Round Table of Former Immigration Judges ⚔️🛡 filed an amicus brief before the Supremes in Santos-Zacaria supporting the interpretation that eventually prevailed.
Professor Hilary T. Fraser Cornell Law PHOTO: Cornell Law
Cornell Law School Afghanistan Assistance Clinic: Spring 2023 Report
May 15, 2023
By Hilary Fraser, Adjunct Professor
In our third semester offering the Afghan Assistance Clinic to Cornell law students, we saw a change in the type of cases and clients and a change in the kind of students. In our initial semester a year ago, our clinic students had backgrounds in immigration and human rights law. Our clients were all Fulbright recipients recently arrived in the United States, and the cases were rich with evidence of the likelihood of future persecution due to the client’s activism and training with western donor nations in building of democratic institutions.
At the start of this semester, there was some dismay that our clients’ cases seemed not as strong. Most clients were younger, some just freshmen in the United States. “I don’t think she has a case,” one student initially remarked about his client. Our students were also new to client representation, and more tentative about interviewing the clients and gathering facts.
To overcome these challenges, we decided to drill down on the fact that our clients had lived through a year or so of Taliban rule. Hadn’t they actually experienced persecution in the year or more that passed before they were able to escape? Weren’t their escape stories a symbol of their fears? The Taliban’s announcements that floggings and amputations were legitimate punishments; that women could not work, attend high school, leave home without a chaperone or visit parks and gyms; that universities were shuttered, the internet policed, passport offices closed and ‘vice’ and religion fastidiously monitored did not pose just future possibilities of harm, but rather defined the lives our clients had lived.
We also decided to drill down on our interpersonal skills and bring our own humanity into the client-student relationship. We needed to break through our clients’ reticence formed during a dangerous year of living in hiding from the Taliban regime. Nearly all of our clients told us how closely they guarded their plans to apply to school in the United States. Our clients also feared talking with us. Their families did not want to write support letters. We also had clients who came to the United States just before Kabul fell, but still hadn’t filed for asylum. We needed to work with the problem of depression.
Our students overcame these barriers in several ways.
One way our students engaged these reticent clients was through a shared immigration experience. Seven of our 12 class members were immigrants themselves, which helped form a bond of trust and a shared understanding of the vocabulary and process of immigration. Some took our clinic to understand better their parents’ experiences as immigrants to the United States. Some were interested in understanding better their own asylum or other residency applications.
Clever solutions also helped us elicit the clients’ stories. Related clients and clients who were friends and classmates from Afghanistan were represented by students who collaborated (with consent) on evidence and stories. This small-group approach made our process more efficient and our clients more comfortable. Also, we drew upon the experience of two classmates participating in the clinic for the third time, one as a Pro Bono Scholar and one as an indefatigable research assistant who won a public interest award from Cornell this semester. These senior students lent their experience to the class.
Last but not least, we made the Cornell connection. Twelve of our 15 clients this semester are scholars or students at Cornell. Working in person, even working with a shared sense of the environment and terrain of campus, forged relationships of trust. Plus, it just felt good to be helping a “neighbor.”
Our client narratives and legal claims eventually emerged. Political opinion was imputed from parents and from students’ choices of academic fields and universities. Race and religion were the most frequently claimed protected grounds, with Hazara ethnicity and atheism the most common fact patterns. “Westernized” individuals as a particular social group defined the elite group of young students talented enough to make it out of Afghanistan in a year when borders were mostly closed.
As a group, this semester’s clients could be seen as the younger “siblings” of the first groups of our clients. Growing up in a hopeful time of relative ease and opportunity in Afghanistan during occupation, they were free to foster their spirituality, self-expression, and learning. Please meet some of them here below. The client who we originally thought didn’t have a claim turned out to be one of our strongest cases, together with:
· A client who wrote and self-published on Amazon an English-language book on Love and God. A true romantic and humanist with a respect for literature.
· A client who obtained a U.S. visa just in time for her to escape a forced marriage and land in a top mathematics Ph.D. program in the United States.
· A client who grew up hearing the harrowing stories of parents who had suffered beatings and death threats under the Taliban and escaped to Iran, where treatment of Afghans is only slightly less horrific.
· A client who paints human representational art, fearlessly showing female bodies and intimate settings. Their work of 70+ canvases hides in residential attics in Afghanistan.
· A client whose transition to atheism is clearly recalled in a series of private conversations with peers and mentors, two of whom were murdered in honor killings pursuant to a fatwa.
· A client who was part of seminal schools for women and who received a leadership scholarship to attend school in the United States from an American fashion celebrity.
In short, our clinic honored these stories by acknowledging the teller’s experience. We realize that save for our small group of students, no one else other than the USCIS asylum adjudicator will hear these moving tales. Someday, we’d like to transform the stories into spoken-word theater!
This class was dedicated to learning immigration and helping their clients. Almost all this semester’s students will graduate to positions with large law firms. Their commitment to our clinic’s work signals that immigration has become a necessary skill set for both corporate and public interest lawyers.
Overall, we filed 15 asylum cases this semester, representing the collective work of 8 first-time students, 2 second-time students, a Pro Bono scholar, a research assistant, and an adjunct professor. By summer 2023, 30+ Afghan asylum applications filed by our clinic will remain pending, a terrific accomplishment in just 15 months of work.
Other landmarks reached this semester include:
o Our first semester clients received work permits or renewals.
o Two of our second semester clients had asylum interviews.
o All our second semester clients qualified for online work permit applications for the first time.
o We did a presentation for Weill Cornell medical students.
o We heard two presentations from Afghan political analysts.
o An Afghan student group was formed on campus through the work of our clients.
o We helped almost all the Afghans at Cornell who needed us.
o We kept abreast of dynamic changes in asylum practice – both at the border and expansion of parole programs.
o We mentored the law school’s 1L immigration clinic, which filed four other Afghan affirmative asylum applications.
This really hits home for me. I’m fresh off teaching with outstanding colleagues — subject matter experts and experienced civil and criminal litigators working together seamlessly —at the Sharma Crawford Clinic Litigation Trial College in Kansas City, KS. As usual, a large part of the “hands on” experience was coaching students on how to best elicit information from clients — across cultural and language barriers — and then to present their stories in a fashion that will be gripping and compelling to Asylum Officers, Immigration Judges, DHS Assistant Chief Counsel, and would make a great and “reader friendly” record for appellate judges and their clerks, should that step be necessary.
Consequently, I really appreciate the skill set that Hilary is helping her students develop! And, as we emphasized at our Trial College, this isn’t just an Immigration Court skill. No, it’s a “life skill” that folks will use over and over in their professional careers and personal lives!
The skills necessary to practice law these days start at the “retail level” of our justice system — the Immigration Courts. As I tell myGeorgetown Law students, “If you can win one of these cases, everything else in law and life will be a piece of cake!”
Thanks to my long-time friend and Hilary’s colleague, Professor Stephen Yale Loehr, for alerting me to this important achievement.
“Juana,” a client of the Asylum & Convention Against Torture Clinic and Annunciation House in Texas, after she won asylum and was released from detention in spring 2019.
Asylum and Convention Against Torture Appellate Clinic Celebrates 20th Anniversary
February 17, 2023
Twenty years ago, Cornell Law School established its Asylum and Convention Against Torture Appellate Clinic. Since then, some 200 students have represented close to 100 clients. In a system where the vast majority of asylum seekers lose their appeals, the clinic has won an estimated sixty-six percent of its cases.
“Because of the complexity of immigration law, it is very hard to win asylum for someone,” says clinic codirector Stephen Yale-Loehr, professor of Immigration Law Practice. “We are fortunate that we have excellent students who work tirelessly to save their clients from persecution or torture.”
Emily Rivera ’23, who is taking the clinic for a second year, writes, “This has been the most rewarding experience of my law school career. From working on federal court appeals to submitting request releases on behalf of detained clients, I have had the chance to engage in work that I am deeply passionate about.”
The experience has inspired careers in immigration law—and also deeply informed alumni’s work in other areas. Neethu Putta ’19, who took the clinic for two years as a student and now contributes to its work as an adjunct professor, observes, “The clinic taught me how to artfully frame issues and tell a client’s narrative in a way that leaves the court no choice but to find for them. As a practicing commercial litigator, I now use those skills daily.”
Clinic codirector Estelle McKee, clinical professor of law (Lawyering), notes that the clinic offers students a unique glimpse into the lives of individuals whose paths they would otherwise never cross. “Our clients are brave; many have undergone unspeakable persecution and torture, and have embarked on treacherous journeys to protect their families,” she says. “Their experiences and persistence offer students deep insight into the importance of zealous advocacy.”
McKee shares some comments sent to her by clinic clients. A Salvadoran asylum-seeker wrote, “I sincerely want to thank you for all your willingness, commitment, responsibility, and the respect with which you offer me your help. Few people do what you did for me, so I will be forever grateful to you.” [translated from Spanish]
Another reflection comes from a Cameroonian client who had been found “not credible” by an immigration judge and was ailing in a for-profit prison when the clinic took up his case. Against the odds, McKee and her students were able to get the case reopened and will represent this asylum-seeker as he returns to court. He says, “I continue to appreciate your care and concern and effort to my case… [Y]ou have really been a blessing to me… I will never forget you.”
For the professors as well, the experience has been unforgettable. Says Yale-Loehr, “The clinic has been a highlight of my legal career. I feel honored to have worked with so many excellent students over the years to help persecuted people win asylum and start a new life in the US.”
McKee adds, “There is nothing like clinical teaching. Not only does it present the opportunity to provide the representation so desperately needed by underserved populations, but it also enables a teacher to help shape the next generation of lawyers while also having an impact on the development of the law.”
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Clinical education has been the biggest development in modern legal education — applied scholarship, practical skills, changing lives, problem solving, and developing the law, all before students join the bar! No better way to learn than at the chaotic, high-stakes “retail level” of our justice system. As I often tell students, “If you can win one of these cases, in this environment, everything else in law and many of the challenges of life will be a piece of cake!”
Immigration and human rights clinics, like Cornell and many others, have been at the very forefront of innovation and the clinical teaching movement. That’s why many of the “superstars” of clinical teaching are now being “tapped” by their institutions for leadership positions as Deans, Associate Deans, Assistant Deans, etc.
Where U.S. law remains “behind the eight ball:” Bringing these extraordinarily well-qualified “practical scholars,” leaders, and administrators onto the Federal Bench and in key leadership positions within the Government’s struggling legal bureaucracy, particularly in the dysfunctional agencies responsible for immigration, human rights, racial justice, due process, and equal justice. And, what passes for “policy making” on these issues in the Biden Administration is nothing short of a preventable and embarrassing humanitarian disaster!
Nowhere is this glaring disparity more obvious than between the dynamic talent and creativity in the private sector and the “backward looking, stuck in a rut, timid, uninspired” leadership inflicted on the public by these downward-spiraling, hugely wasteful and inefficient USG bureaucracies and the poorly-conceived and too often disingenuous “policies” (actually cruel “recycled Stephen Miller Lite gimmicks”) coming out of the West Wing!
🇺🇸 America needs change. And that requires some new faces, courage, innovation, and better solutions from the USG!The talent is available! Why are we being subjected to “Amateur Night at the Bijou” — or worse?
The Biden Administration has looked in some mighty strange places to assemble its amazingly inept human rights/immigration team. Why didn’t they try clinical programs and NGOs where the “real talent” is? That’s a question that the ghosts of dead and damaged legal asylum seekers might be asking for a long time to come! PHOTO: Thomas Hawk Creative Commons Amateur Night
