"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.
“What the government is essentially asking us to do is agree that certain ‘analogous’ state crimes must count as rape and then reverse engineer a definition to make sure they do.”
Sure sounds like the kind of “any reason to deny” (non) logic that has been allowed to flourish at EOIR under Garland. And the 8th Circuit actually sounded pleased to be freed from the necessity under Chevron of inevitably “rubber stamping” the least reasonable, most “pro enforcement” interpretations offered up by the Government under Chevron. Garland could and should have changed that, but chose not to!
Many congrats to the “Youth Brigade” of the NDPA!
Some consider Garland’s failure to hold Trump accountable for January 6 to be his greatest failure. That’s a complex issue clouded by his decision to basically distance himself from the process. Undoubtedly, he was an overly cautious and weak leader!
But, I think history ultimately will see his failure to reform the Immigration Courts and to stand up for the legal and human rights of asylum seekers and other immigrants as his worst shortcomings. It actually continues to cost lives, squander resources, allow lies and negative attitudes toward vulnerable legal asylum seekers to be “normalized,” and help pave the way for Trump 2.0.
Professor Karen Musalo Director, Center for Gender & Refugee Studies, Hastings Law
Read Karen’s newly-released article “Aligning United States Law with International Norms Would Remove Major Barriers to Protection in Gender Claims” in the 2024 Edition of the International Journal of Refugee Law. Here’s the abstract:
A B ST R A CT
The protection of women and girls fleeing gender-based harms has been controversial in the United States (US), with advances followed by setbacks. The US interpretation of particular social group and its nexus analysis, both of which diverge from guidance by the United Nations High Commissioner for Refugees (UNHCR), is the most significant barrier to protection. It has become almost impossible for women and girls to rely upon the particular social group ground because of current requirements that social groups not only be defined by immutable or fundamental characteristics, but also be socially distinct and have particularity. Establishing nexus is also a significant obstacle, with the US requirement of proof of the persecutor’s intent. In the first month of his administration, President Biden issued an executive order on migration, which raised hopes that these obstacles to protection would be removed. The order committed to protecting survivors of domestic violence and to issuing regulations that would make the US interpretation of particular social group consistent with international standards. The target date for the regulations was November 2021, but they have yet to issue. This article examines how the evolution of the US interpretation of particular social group and nexus has diverged from UNHCR recommendations. It shows how protection has been denied in gender cases involving the most egregious of harms. The article concludes by providing recommendations for realignment with international standards, which set a benchmark for evaluating the promised Biden administration regulations on the issue.
Karen’s highly readable “spot on” article prompted this additional thoughtful comment from my friend and Round Table colleague Hon. “Sir Jefferey” Chase:
Hi Karen: Wonderful article! So clear, so logical, and just so correct! Thanks as always for this. (And I’m extremely honored to find myself in several of your footnotes – thank you!)
Create a “Charming Betsy” Reg Requiring Adherence to International Law:Since 1804, the Supreme Court’s decision in Murray v. The Schooner Charming Betsy has required domestic statutes to be interpreted consistently with international law whenever possible.As the Supreme Court in INS v. Cardoza-Fonseca observed that in enacting the 1980 Refugee Act, “one of Congress’ primary purposes was to bring United States refugee law into conformance with the 1967 United Nations Protocol Relating to the Status of Refugees,” it would seem that interpreters of our asylum laws should look to international law interpretations of that treaty for guidance.Recent examples in which this has not been the case include the just-published “death to asylum” regulations that will completely gut the 1980 Refugee Act of any meaning; as well as regulations that bar asylum for conduct falling far, far short of the severity required to bar refugee protection under international law (which a federal district court blocked in Pangea v. Barr).
As the Board seems disinclined to listen to the Supreme Court on this point, it is hoped that the Biden Administration would codify the Charming Betsy doctrine in regulations, which should further require the BIA, Immigration Judges, and Asylum Officers to consider UNHCR interpretations of the various asylum provisions, and require adjudicators to provide compelling reasons for rejecting its guidance.
Do you think there is a way to use Karen’s article to make this into a talking point across the advocacy community? I think there’s merit to trying to normalize an idea over time. Just a thought.
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
I agree, Jeffrey! Ironically, as Karen shows, “normalizing” refugee and asylum processing to bring it into alignment with the Convention was one of the driving forces behind enactment of the Refugee Act of 1980. Indeed, it’s reflected in a key early interpretation of the Act by the Supremes in INS v. Cardoza-Fonseca (successfully argued by our friend and Round Table colleague Hon. Dana Marks, a “Founding Mother of U.S. Refugee Law”). In rejecting the USG’s restrictive interpretation, the Court consulted the U.N. Handbook while making the point that the refugee definition was to be applied generously so that even those with only a 10% chance of persecution could qualify.
I also note that the abandonment of the “Acosta test,” which I relied on in Kasinga, in favor of a more convoluted, restrictive, and ultimately intellectually dishonest approach, went “into high gear” after the “Ashcroft purge” had removed the core of BIA Judges who spoke up for asylum rights and protection, even when in dissent!
Unfortunately, Administrations of both parties have feared honest and robust implementation of the Refugee Act that truly follows the “spirit of Cardoza and its BIA progeny, Matter of Mogharrabi.” They all have had their “favored” and “feared” groups of refugees and asylees, some more than others.
This, of course, breeds huge inconsistencies and arbitrary adjudications, a problem exposed well over a decade ago by Professors Schoenholtz, Schrag, and Ramji-Nogales in their critical seminal work Refugee Roulette describing the largely unprincipled and politicized operation of our system for adjudicating protection claims.
At some level, all Administrations have given in to the false idea that protection of refugees is politically perilous and that consequently the law should be interpreted and manipulated to “deter” the current “politically disfavored” groups of refugees. Not surprisingly, the latter are usually those of color, non-Christian religions, or from poorer countries where the mis-characterization of groups of legitimate refugees as “mere economic migrants” has become routine. Too often, the so-called “mainstream media” accepts such negative characterizations without critical analysis.
Unfortunately, the Biden Administration has regressed from a somewhat enlightened beginning with the never-promulgated “gender based regulation” mentioned by Karen to a position of fear, desperation, and ultimately “false deterrence.” Apparently, they perceive that GOP nativist lies and shamless fear-mongering combined with their own failure to boldly reform and materially improve the asylum processing system under their control are “scoring points” with the electorate.
The latest misguided proposal being considered in the White House would grotesquely miss the mark of addressing the real glaring problems with our asylum system at the border and beyond. That is the overly restrictive interpretations and applications of the refugee definition, too many poorly-qualified and poorly-trained adjudicators, over-denial leading to protracted litigation and inconsistent results, uninspiring leadership, and a stubborn unwillingness to set up the system in compliance with international rules so that significant numbers of qualified refugees applying at the border can be timely and properly admitted to the U.S. where, incidentally, their skills and determination can contribute greatly to our economy and our society.
The latest bad idea is truncating the already overly-summary and poorly run asylum process in apparent hopes of more quickly denying more potentially valid claims with less consideration. See, e.g.,https://www.politico.com/news/2024/05/08/biden-migrants-asylum-changes-00156865. Far from being a panacea for the much-feared and highly distorted “border issue,” it eventually will aggravate all of the problems highlighted by Karen.
One thing it won’t do, however, is stop forced migrants from coming to the United States, even if they must abandon our broken legal system to do so. That’s what forced migrants do! Pretending otherwise and misusing our legal protection system for rejection won’t “deter” the reality of forced migration.
“One day after he pleaded guilty to violating a Tennessee domestic-violence law, the federal government initiated removal proceedings against Jose Yanel Sanchez-Perez. Ultimately, an immigration judge and the Board of Immigration Appeals determined that Sanchez-Perez could not seek cancellation of removal due to this conviction. The Board of Immigration Appeals improperly determined that Sanchez-Perez pleaded guilty to a crime of violence, however. Accordingly, we GRANT Sanchez-Perez’s petition for review, VACATE the Board’s order of removal, and REMAND to the Board for proceedings consistent with our opinion. … Because the Tennessee statute at issue, Tenn. Code Ann. § 39-13-101(a)(2), criminalizes conduct beyond the federal definition of a crime of violence, the BIA erred in finding that Sanchez-Perez is statutorily barred from seeking cancellation of removal. … The government’s and BIA’s errors in this case involve basic misreading of both our and the Supreme Court’s precedents concerning the distinctions between different federal statutory schemes and the meaningful differences among state criminal statutes. At bottom, because on its face the Tennessee statute at issue here criminalizes conduct that does not require the use or threatened use of violent physical force, the BIA erred when it determined that Sanchez-Perez was statutorily barred from applying for cancellation of removal by virtue of his 2009 conviction for misdemeanor domestic assault under Tennessee Code Annotated § 39-13-111.”
This is what happens when an appellate body beholden to DHS Enforcement looks for “any reason to deny” while “what me worry” AG Merrick Garland looks the other way!
Peter Schey, who championed the rights of immigrants for more than five decades, winning landmark legal cases on behalf of undocumented children and their families and helping lead the charge against Proposition 187, a California law that sought to deny social services to people suspected of arriving in the country illegally, died April 2 at a hospital in Santa Monica, Calif. He was 77.
The cause was lymphoma, said Melinda Bird, his friend and former wife.
A driven and tenacious lawyer with a workaholic intensity, Mr. Schey had firsthand experience with the American immigration system. His parents were refugees from Nazi Germany, sailing to South Africa during World War II, and the family moved to the United States when he was 15, after he began participating in anti-apartheid protests and worried his parents when his picture appeared in the newspaper.
Working out of an office in the Westlake district of Los Angeles, Mr. Schey went on to take hundreds of human rights and immigration cases while leading a nonprofit organization, the Center for Human Rights and Constitutional Law, and battling Republican and Democratic administrations in Washington.
He was lead counsel in Plyler v. Doe, a landmark 1982 Supreme Court decision that safeguarded the right of undocumented children to attend public schools, and litigated Reno v. Flores, a class-action suit that resulted in a 1997 settlement agreement protecting children in immigration custody. The case transformed the nation’s treatment of young migrants, establishing improved standards of care that Mr. Schey spent years fighting to uphold in court.
. . . .
“When you start being able to refer to other precedents, other cases that you’ve won, it’s a revelation,” [Attorney Carlos] Holguín said in a phone interview, reflecting on Mr. Schey’s career. “You basically are building off a legacy of prior work to move the law even further. Plyler, I think most constitutional law scholars would agree, was the high-water mark of equal protection jurisprudence. We’ve only gone backward from there.”
. . . .
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Peter got a “full page” obit in the WashPost — the kind usually reserved for heads of state, powerful politicos, famous athletes, entertainers, and world-renowned artists. You should read it at the above link. I’m familiar with many aspects of Peter’s career, but I learned things I never knew before!
Plyler v. Doe is one of those cases that has a “real-life impact!” Like all of my former colleagues at the “Legacy” Arlington Immigration Court, I encouraged school-aged children coming before me to enroll and get as much education as possible. I said,“However your case comes out, the education you get is yours to keep, forever!”
I could see how students progressed in their mastery of English and their comprehension from hearing to hearing. Some of them proudly brought in their report cards to show me their achievements. Peter Schey helped make it possible!
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
“Sir Jeffrey” Chase reports:
Cert granted in Bouarfa v. Mayorkas
Hi all: Thanks to Lory [Rosenberg] for flagging that cert was granted today [April 29] by the Supreme Court in Bouarfa v. Mayorkas, in which our group filed an amicus brief in January.
As a reminder, the issue involves whether a revocation of a visa petition by USCIS for non discretionary criteria can be reviewed by the courts. A straight-out non-discretionary denial by DHS of a visa petition can be reviewed by the circuit courts; however, if DHS approves the petition and revokes it a day later for a non-discretionary reason, under the Eleventh Circuit’s reading, the petition can no longer be appealed to the circuit. (The Sixth and Ninth Circuits disagree).
Best, Jeff
Find all the relevant links, including to our amicus brief, here:
Nevertheless, Cruz argues correctly that Isidro-Zamorano, 25 I. & N. Dec. 829, leaves open the possibility for adjudication of the merits of a cancellation application where the qualifying relative aged out of qualifying status because of undue procedural delays. As explained below, the facts are unclear as to why briefing and decision were delayed. As such, we remand for the BIA to address in the first instance whether the delays on appeal in this case were undue and attributable to the agency, and if they were, for the BIA to review the IJ’s denial of cancellation of removal in the first instance.
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This is yet another in a long list of examples of how the Circuit actually did a better job than the BIA of locating, understanding, and following binding BIA precedent potentially favorable to the respondent!
I wouldn’t bet on today’s BIA adopting on remand an interpretation favoring the applicant, even though, as pointed out by the Second Circuit, such an interpretation would be legally possible. Perhaps, this is a case where amici need to “weigh in” before the BIA on remand.
In my mind, it also raises questions of whether the numerous unnecessary delays, backlogs, and confusion caused by the BIA’s failure to follow the statutory language on the “stop time rule” for 42B cancellation, as twice found by the Supremes, could be categorized as “unnecessary — and totally foreseeable — delay?” Both courts and advocates warned the BIA — in vain — that ignoring the clear language of the statute was a huge mistake that would create more unnecessary disorder in the already dysfunctional EOIR system! But, in their haste to rule in favor of DHS Enforcement, the BIA once again ignored the experts.
🇺🇸 Due Process Forever!
PWS
04-07-24
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ADDENDUM FROM “SIR JEFFREY:”
“Thanks, Paul (and hi to everyone!), but credit to Ray Fasano for flagging this.
Best, Jeff”
Thanks, Ray!
H. Raymond Fasano, Esquire PHOTO: Super Lawyers Profile
A federal appeals court late Tuesday ruled against Texas in its bitter clash with the federal government, deciding that a law allowing the state to arrest and deport migrants could not be implemented while the courts wrestled with the question of whether it is legal.
A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit, which has a reputation for conservative rulings, sided in its 2-to-1 decision with lawyers for the Biden administration who have argued that the law violates the U.S. Constitution and decades of legal precedent.
The panel’s majority opinion left in place an injunction imposed last month by a lower court in Austin, which found that the federal government was likely to succeed in its arguments against the law.
A three-judge appeals panel will hear arguments on Wednesday in the power struggle between Texas and the federal government following a shock reversal that once again blocked a new state law allowing local police to arrest migrants at the border – just hours after the US supreme court had decided it could go ahead.
A federal appeals court late on Tuesday issued an order preventing Texas from implementing its plans to defy the Department of Justice and take the power for Texas law enforcement to arrest people suspected of entering the US illegally, which is normally the jurisdiction of the federal immigration authorities.
The White House had strongly criticized the supreme court on Tuesday afternoon after a ruling that would have allowed what it called a “harmful and unconstitutional” Texas immigration law to go into effect.
The supreme court order had rejected an emergency application from the Biden administration, which says the law is a clear violation of federal authority that would cause chaos.
The decision by the fifth US circuit court of appeals that followed on Tuesday night itself came just weeks after a panel on the same appeals court hearing the case on Wednesday had cleared the way for Texas to enforce the law, known as SB4, by putting a pause on a lower judge’s injunction.
. . . .
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Read the complete article at the link.
The “ghosts of John Calhoun” are taking over our system! And, almost everyone’s focused on the legal minutiae and procedural gobbledygook, while ignoring the big picture, which should be a “no brainer” rejection of Texas’s existentially dangerous, yet essentially ham-handed, attempt at “nullification!”
As pointed out cogently by The Hope Border Institute (issued after the Supremes’ “copped out,” but prior to 5th Cir.’s reversal of its prior order, thus temporarily blocking SB 4) the racist, unconstitutional intent behind “SB 4” is a crystal clear “no brainer:”
THE HOPE BORDER INSTITUTE EXPRESSES GRAVE CONCERNS FOLLOWING SUPREME COURT’S DECISION TO LET SB4 ENTER INTO FORCE
EL PASO, TEXAS – The Supreme Court’s decision to let Texas enforce SB4 as it continues to be litigated is fundamentally wrong and will have grave consequences. Today’s ruling will permit the State of Texas to create an illegal parallel deportation system and ramp up its project to criminalize migration and now all people of color in the state.
SB4 will unequivocally create an environment of fear and distrust in local Texas communities, erode welcoming efforts, and legitimize racial profiling. The federal government must challenge Operation Lone Star once and for all.
In response to this decision and Texas’ targeting of migrant hospitality, all are invited this Thursday, March 21 at 6:30 pm MT to ‘Do Not Be Afraid’ March and Vigil for Human Dignity, a moment of community prayer and resistance. We will denounce Texas’ efforts to criminalize migration and humanitarian relief efforts, affirm our welcoming borderland community, remember those dying at the border, and demand humane solutions.
“The Supreme Court decision to let the unconstitutional and racist SB 4 enter into effect is gravely serious and a sign of the urgent need to advance policies that uphold human dignity,” said Dylan Corbett, Executive Director of the Hope Border Institute. “This legislation will do nothing but harm communities across Texas, and other states will follow suit. I call everyone to join us on the evening of Thursday, March 21 to march in resistance and reject this campaign of hate.”
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
Hon. “Sir Jeffrey” Chase reports:
Hi all: The Supreme Court just issued its opinion in Wilkinson v. Garland, in which our group filed an amicus brief. The Court held that the exceptional and extremely unusual hardship determination in cancellation B cases (involving non-LPRs) is a mixed question of fact and law, and is thus reviewable by circuit courts on appeal. The Court thus reversed the Third Circuit’s determination that it lacked jurisdiction.
The decision was 6-3. Sotomayor wrote the majority opinion; Jackson wrote a concurring opinion, and Roberts and Alito wrote dissenting opinions.
Our amicus brief argued:
In amici’s experience, whether the facts of a particular case satisfy the “exceptional and extremely unusual hardship” eligibility criteria for cancellation is a mixed question of law and fact.
This decision will have a major impact on cancellation B cases, as the Board’s hardship determinations will now be subject to wide circuit court review.
This case makes a huge difference! Circuit review will ratchet up the pressure on the BIA to cut the “any reason to deny” BS 💩 and start doing a quality review in every case! If not, given the number of cancellation cases in the system, there are going to be lots more Circuit remands that will jack the backlog even higher!
As put by one “Round Tabler,” this will “impact the scholarship and often times lack of analytical rigor by the Board, knowing that it is no longer completely insulated from review of its hardship determinations.” You betcha!
And don’t ever underestimate the adverse impact on due process and justice that occurs when, knowing that its decisions are “immune” from judicial review, the BIA is “pushed by the political powers that be” to cut corners, “crank the numbers,” and “keep the removal assembly line moving!” That’s why political control over the BIA’s decision-making has such an outsized adverse impact on justice for immigrants and undermines the key constitutional due process principle of “fair and impartial justice for all.”
As the economy has improved and consumers have begun recognizing that improvement, Republicans have pivoted to attacking President Biden on a different policy weakness: immigration. After all, virtually everyone — Democrats included — seems to agree the issue is a serious problem.
But what if that premise is wrong? Voters and political strategists have treated our country’s ability to draw immigrants from around the world as a curse; it could be a blessing, if only we could get out of our own way.
Consider a few numbers: Last week, the nonpartisan Congressional Budget Office released updated 10-year economic and budget forecasts. The numbers look significantly better than they did a year earlier, and immigration is a key reason.
The CBO has now factored in a previously unexpected surge in immigration that began in 2022, which the agency assumes will persist for several years. These immigrants are more likely to work than their native-born counterparts, largely because immigrants skew younger. This infusion of working-age immigrants will more than offset the expected retirement of the aging, native-born population.
. . . .
Instead, GOP lawmakers scaremonger about the foreign-born, characterizing immigration as an invasion. As Rep. Mike Collins (R-Ga.) dog-whistled last week, “Import the 3rd world. Become the 3rd world.”
America has historically drawn hard-working immigrants from around the world precisely because its people and economy have more often been shielded from such “Third World”-like instability, which Republican politicians now invite in.
Ronald Reagan, the erstwhile leader of the conservative movement, often spoke poignantly of this phenomenon. In one of his last speeches as president, he described the riches that draw immigrants to our shores and how immigrants in turn redouble those riches:
Thanks to each wave of new arrivals to this land of opportunity, we’re a nation forever young, forever bursting with energy and new ideas, and always on the cutting edge, always leading the world to the next frontier. This quality is vital to our future as a nation. If we ever closed the door to new Americans, our leadership in the world would soon be lost.
Reagan’s words reflected the poetry of immigration. Since then, the prose — as we’ve seen in the economic numbers, among other metrics — has been pretty compelling, too.
Already the media are “at it again,” most attributing Democrat Tom Souzzi’s easy win over his GOP opponent for the House seat vacated by George Santos to his “move right” on immigration. But, as Catherine suggests above, “what if that premise is wrong?”
There is certainly support for a more nuanced view, both anecdotally and in polls.“Suozzi, [a voter]said, would ‘protect us but also be fair to those who are seeking asylum.’” https://www.washingtonpost.com/elections/2024/02/13/new-york-district-3-special-election-george-santos/. Sadly, and outrageously, the so-called Senate “compromise” border bill that Souzzi touted and which has become the “darling” of the tone-deaf mainstream media does neither. Not even close!
Yet, supposedly responsible journalists are falling all over themselves touting the benefits to Dems of a horrible “Miller-Lite” bill that essentially would have destroyed the right to asylum while turning the border over to cartels and smugglers to exploit some of the world’s most vulnerable who are victims of our own failings. Today’s wrong-headed WashPost editorial is a particularly egregious piece of such media sophistry. https://www.washingtonpost.com/opinions/2024/02/14/immigration-border-suozzi-mayorkas-special/.
So, here’s a more intellectually honest “rewrite” of today’s lead editorial:
POST EDITORIAL BOARD: Death, Murder, Rape, Torture, Assault, Robbery, Extortion, Kidnapping of Hispanics, Blacks, Other Forced Migrants A Small Price To Pay For Bipartisan Deal To Outsource Migration To Gangs, Cartels, and Traffickers!
We Must Not Only “Turn Away The St. Louis,” But Torpedo It So Every Man, Woman, & Child Goes To The Bottom Where They Will Be Effectively Deterred From Ever Again Invoking Our Laws & Moral Obligations!
Nowhere, and I repeat nowhere, are the voices of those with decades of actual hands on experience working with migrants at the border, and the voices of those migrants themselves, being heard and heeded in this “non-debate” that resulted not in a “compromise” but in a “human rights giveaway.” What gives us the right to arrogantly and immorally give away rights and human lives that are NOT ours in the first place as if they were “table favors at a political fundraiser?“
As Beatriz so pointedly said:
Hanging above our heads like a Florida cockroach threatening to fly into our faces was the fact that the Biden administration, Majority Leader Chuck Schumer, Senator Chris Murphy, and Democrats who voted for the bill had officially moved the goalpost on immigration.
Thanks to the moral vapidity of Dem politicos and the Administration the “game” for the lives, rights, future, and human dignity of asylum seekers is now being “played” between the “Good Guys’”goal line and their ten yard line! We are being offered a “choice” between “cruel and stupid” and “crueler and dumber!” Certainly, the Dems and our nation could and should do better!
Supporting fairness, orderly processing, and actions that protect asylum and the community would be a far more prudent choice for Dems than the virulent “death to asylum craze” (the unstated part of which is that it also means “death to asylum seekers”) that currently seems to be “in vogue” with both parties and mindlessly hyped by the media.
It’s quite possible that Souzzi won not because of his extreme position on asylum, but because his position was “less extreme” that that of his GOP opponent and her openly xenophobic party. This conclusion is actually supported by polls that show that while most voters understandably want “order at the border,” they also want to protect the right to claim asylum and a fair process for doing so. See, e.g., https://wp.me/p8eeJm-9hU.
There is opportunity here for Dems to change minds and create a stronger coalition for asylum seekers and other immigrants. NGO experts like Beatriz Lopez need to partner with Congressional Dems who understand asylum and the border (like Rep. Hillary Scholten (D-MI) and Rep. Joaquin Castro (D-TX)) to reach out and meet with Rep. Souzzi and others like him to explain practical solutions and useful changes at the border that would create order while maintaining and enhancing fair and timely asylum processing.
Beyond that, advocates must explain and model how migrants themselves can help resolve the problems facing Rep. Souzzi’s district and improve the quality of life for all. They must show how migrants are “part of the solution,” perhaps, for example, by establishing public-private partnerships that would involve migrant communities in constructing high-quality, attractive affordable housing that would help the entire community. Working on various civic improvement projects might also be a mutually beneficial option.
Advocates, NGOs, and political supporters of migrants must do more than just point to graphs and cite statistics about the long-term economic and societal benefits of immigration. They must actually model and create practical joint projects and expand opportunities for the benefit of migrants and the communities to which they have been relocated.
Problem-solving needs to be brought into the “here and now” rather than just being presented to U.S. communities as a vague promise of future benefits. My experience is that most people react to what’s before them today rather than than relying on a constructed view of tomorrow, now matter how attractive and statistically supported that future vision might be.
In addition to the misguided “Miller Lite nonsense” from the editorial board and, disappointingly, even the usually responsible and insightful Karen Tumulty, today’s WashPost contained useful observations from Eduardo Porter about the need to get migrants to places in the U.S. where they, their job skills, and their work ethic would be welcomed, appreciated, and useful.
But, both the Biden Administration and Congress have shamefully failed to convert this “low-hanging fruit” into reality. Even worse, that has allowed White Nationalist demagogues like Abbott and DeSantis to waste and divert millions in public funds to make the situation worse and to convert those who want to help America succeed and prosper into hapless “political footballs” being tossed back and forth between GOP nativists and wimpy Dem politicos who long-ago lost their moral bearings. Although NGOs and advocates are weary and overburdened, if they don’t take the initiative to make this happen, on at least some scale, the opportunity will be lost and the nativist myth-makers will prevail.
Only by modeling actual results in real time will we be able to demonstrate the fallacy and counterproductivity of the GOP’s nativist “burden myths.” There’s no time like the present to start!
NDPA “Four Star General” ⭐️⭐️⭐️⭐️ Charles Kuck reports:
My partner Danielle Claffey won yet ANOTHER Russian Asylum case the belly of the beast Atlanta Immigration Court.THIS is why lawyers are essential in asylum cases!
Danielle says:
Earlier this week, I had the great fortune of securing asylee status for a young Muslim girl from Russia, before an Atlanta immigration judge. Though she is young and was so quiet for the last year I was handling her case, in court, she was strong, confident, and provided vivid detail of what she went through for the entire 19 years of her life in Russia before fleeing for America. After the judge formally granted her asylee status, and the government waived appeal, the judge told her she was sorry for everything she went through in her home country. When the judge granted her case, and the interpreter translated the judge’s words, it was the first time I saw my client smile, followed by a big deep breath. She has carried a lot in her 21 years, but can now rest easy and pursue all of her dreams here in the U.S.
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Danielle M. Claffey, Esquire Partner Kuck Baxter LLC Atlanta, GA PHOTO: Kuck Baxter
Many congrats, Danielle, and thanks so much for sharing! With great representation, anything is possible, even in Atlanta!
THIS is actually the way Immigration Court could and should work on a regular basis from all involved! Teamwork for justice! Note that:
No appeal;
No petition for review;
No remand;
No “aimless docket reshuffling;”
No need to keep renewing work authorization;
Respondent feels welcomed and understood by U.S. justice system;
Respondent leaves courtroom on the way to a green card, eventual U.S. citizenship, and can fulfill full potential in society;
Models and rewards best practices and professional cooperation (by EOIR, ICE, and the private bar) in achieving “justice with efficiency;”
As Charles says, representation is essential; you bet; so, why hasn’t Garland worked WITH the pro bono bar, NGOs, and clinical educators to facilitate representation in every asylum case? (HINT: “Aimless Docket Reshuffling” and its derivative “Expedited Dockets” — both “Garland specialties” — are major, DOJ-created, impediments to effective representation and are particularly discouraging and problematic for pro bono representatives!
“The BIA erred in affirming the IJ. The entirety of the BIA’s analysis about the motion to reopen was that Davis “has not established that evidence of his mental health issues and of his past and feared harm if returned to Liberia are new, previously unavailable, or would likely change the result in his case.” This one sentence alludes to the elements of a motion to reopen, but does not explain how they apply to Davis’s case. Neither the IJ nor the BIA met the requirements of reasoned decision-making. … Without an adequate explanation, this Court cannot conduct a meaningful review of the BIA’s September 30, 2022 order. … This Court grants Davis’s petition for review in case no. 22-3262, denies the petition for review in case no. 23-1229, and remands for further proceedings consistent with this opinion.”
[Hats off to Colleen Mary Cowgill, Joseph N. Glynn, Elaine Janet Goldenberg, Keren Hart Zwick, Zachary Scott Buckheit, Golnaz Fakhimi, David R. Fine, Kira Michele Geary, Haarika R. Reddy, Cynthia Louise Rice and Kate Thorstad!]
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Congrats to the NDPA team from Immigration and Disability Law Scholars.
But, this is an example of how Merrick Garland’s DOJ is failing the basics of American justice! Note that:
Two levels of EOIR flunk “Judging 101” — badly;
Inappropriate “defense of the indefensible” (and easily correctable) by Garland’s DOJ (OIL) asserting semi-frivolous jurisdictional argument;
Wastes Court of Appeals time on something Garland could and should have corrected and prevented from reoccurring;
Failure to follow Circuit precedent by both EOIR and OIL;
Failure to apply established standards;
Likely use of mindless “any reason to deny boilerplate” at EOIR;
Generates needless motion to reconsider;
After four years, two IJ hearings, two administrative appeals, a motion to reopen, a motion to reconsider, a trip to the Court of Appeals, case remains unresolved;
Competent EOIR Judges could have reopened the case and ruled on the merits in less time and using fewer resources than trying to mindlessly avoid providing the respondent with a reasoned decision;
In a system with three million pending cases these types of easily avoidable, sophomoric mistakes from supposedly “expert” judges are repeated over and over again— not always caught and corrected — leading to denials of due process and fundamental fairness and promoting backlog-building “aimless docket reshuffling!”
What if the the wonderful team at “Immigraton and Disability Law Scholars” could devote 100% of their time to representing vulnerable individuals at merits hearings in Immigration Court rather than having to correct avoidable mistakes by EOIR and OIL?
After three years in charge of EOIR, why hasn’t Merrick Garland, a former Court of Appeals Judge nominated to the Supremes:
Cleaned house at EOIR;
Brought in new, expert, dynamic, due-process-focused leadership;
Institutionalized best practices (see example 1 above);
Attacked system-wide anti-immigrant culture, lack of quality control, and unprofessional decision-making that continues to plague this critical “retail level” of American justice (see example 2 above);
Fixed OIL so that it will stop undermining justice in America by raising specious arguments and defending indefensible EOIR mistakes in the Article III Courts?
Merrick Garland’s “Alfred E. Neumann Approach” at EOIR: Indolent, inappropriate, ineffective! PHOTO: Wikipedia Commons
It’s not rocket science; it doesn’t require legislation (although Garland certainly should have been publicly pushing for Article I); it just takes a laser-focused commitment to due process, fundamental fairness, best practices, and efficient delivery of justice from what continues to be America’s worst “court system!”
Why that leadership and action isn’t coming from Garland is a question that everyone who cares about the future of American🇺🇸⚖️ justice should be asking every day! Fix the fixable! Model the best! That’s “Good Governing 101!”
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
A Victory before the BIA!
Hi All: I hope you are not getting tired of all the winning. Today, the BIA issued a precedent decision on the whole Pereira and Niz-Chavez jurisdictional issue involving service of a defective NTA (link attached) in which our Round Table submitted an amicus brief drafted for us by our own Sue Roy.And the BIA actually agreed with us!!!
The holding:
The Department of Homeland Security cannot remedy a notice to appear that lacks the date and time of the initial hearing before the Immigration Judge by filing a Form I-261 because this remedy is contrary to the plain text of 8 C.F.R. § 1003.30 and inconsistentwith the Supreme Court’s decision in Niz-Chavez v. Garland, 593 U.S. 155 (2021).
Of course, our brief was not acknowledged in the Board’s decision.
A thousand thanks to Sue and to all in this group who have repeatedly signed on in support of due process.
As a reminder, we still await a decision from the Supreme Court on whether Pereira and Niz-Chavez extend to in absentia orders of removal. Oral arguments in that case were heard earlier this month, and our brief was mentioned in response to a question by Chief Justice Roberts.
Best, Jeff
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“Our Hero” 🦸♂️ Hon. Susan G. Roy Law Office of Susan G. Roy, LLC Princeton Junction, NJ Member, Round Table of Former Immigration JudgesKnightess of the Round Table
Want to meet Judge Sue Roy in person and learn from her in a small group setting? You’re in luck! (HINT: She’s not only a very talented lawyer and teacher, but she’s also very entertaining and down to earth in her “Jersey Girl Persona!”)
“Don’t mess with Jersey Girls! They’ll roll right over you — in or out of court.” Creative Commons License
The Round Table 🛡️ will be well-represented by Judge Roy, Judge Lory Diana Rosenberg, and me at the upcoming Sharma-Crawford Clinic 7th Annual Immigration Court Trial Advocacy College in Kansas City, MO, April 24-26, 2024! We’ll be part of afaculty of all-star 🌟 NDPA litigators who are there to help every attendee sharpen skills and reach their full potential as a fearless litigator in Immigration Court — and beyond!
On Monday, the Supreme Court lifted an injunction that had prevented the Border Patrol from cutting and removing concertina razor wire that the state of Texas had installed along a migrant crossing at the Rio Grande.
Federal officials view the razor wire as exceedingly dangerous because it could trap bodies in rapid flowing waters, leading to drownings. According to officials, last week three family members—a mother and her two children—died at the river in part because Texas guard and state troopers prevented the Border Patrol from reaching them.
The conservative Fifth Circuit had ordered the injunction put in place pending its final decision, keeping the razor wire intact. But a slim majority of the Supreme Court, with Chief Justice John Roberts and Justice Amy Coney Barrett joining the three liberals, overruled the panel.
At stake is more than whether the Border Patrol can safely do its job and help prevent deaths like those that occurred last week. Our entire federal system is premised upon the principle that the federal government has exclusive authority to enforce border policy. States like Texas should not have the right to run interference or act as if they are the border patrol.
And yet, four extremist justices—Alito, Thomas, Gorsuch and Kavanaugh—would have left the federal government powerless for now to remove a dangerous barrier illegally erected by Texas.
The latest battle over the border should be viewed within the broader question of what is the proper role of the states when it comes to immigration. And this isn’t the only battle that Texas Governor Greg Abbott and extremist Texas Attorney General Ken Paxton have picked to try and claim more of that power for the states.
Today, I’ll discuss how the Supreme Court came to review this case about the cutting and removal of razor wire at the border. Then I’ll zoom out so we can see how this fits into a larger challenge to federal authority over immigration.
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Razor wire and the Texas federal courts
When Texas first erected razor wire at the river—the kind designed to catch clothing and tear flesh—it was roundly condemned by human rights organizations, and legal scholars quickly pointed out that Texas was acting extrajudicially. After all, at the border, it is the federal government that oversees enforcement, including what kinds of barriers to erect and how to treat and handle migrants. Many of the border crossings are by asylum seekers, and they are therefore there legally in accordance with international law.
Allowing Texas to insert itself as a state actor would upend all traditional notions of federalism and the limit of states’ rights when it comes to questions of homeland security. But a federal district judge and later the Fifth Circuit didn’t see it that way. On December 19, 2023, a panel in New Orleans temporarily barred Border Patrol agents from cutting or removing the wire in the area around Eagle Pass, with an exception for “medical emergencies.” This was a shocking opinion given its apparent disregard of settled law establishing exclusive federal power over immigration policies and execution.
U.S. Solicitor General Elizabeth Prelogar argued that the injunction barred border agents from doing their jobs, specifically, from having clear access to the U.S.-Mexico border and “reaching migrants who have already entered U.S. territory.” Moreover, the exception for medical emergencies was insufficient because it takes time to cut through the wire, and while the clock is ticking there is a “very real” risk of serious injury or death for those trapped.
Texas claimed that federal border agents were not actually apprehending and processing migrants even after they passed through the gaps in the wire that had been cut by the feds some twenty times. The state had property rights of its own, Texas argued, as well as an interest in stopping “deadly fentanyl,” human trafficking,” and to “minimize the risks to people, both U.S. citizens and migrants, of drowning while making perilous journeys to and through illegal points of entry.” (The fentanyl argument is a red herring; the vast percentage of fentanyl entering the country arrives not via migrants crossing the river at the border, which would be a decidedly foolish way to try and transport drugs, but through smuggling by U.S. citizens and legal residents.)
In January, Texas upped the stakes by moving to block federal agents entirely from the area where they normally launch patrol boats and conduct mobile surveillance. This contributed to the three family members’ deaths because fedeal agents had no clear access to the river. In fact, they couldn’t even determine whether a “medical emergency” was occurring, as Prelogar pointed out.
Prelogar won her appeal for the U.S. government and got the injunction lifted by the High Court, but by only a single vote.
The State of Texas keeps trying to enforce national border policy
Governor Abbott has a multi-billion dollar program in place called “Operation Lone Star” that includes massive allocation of personnel to the border, the erecting of illegal and often dangerous barriers, and most recently a new law that authorizes state and local law enforcement to arrest migrants crossing from Mexico.
This has set up yet another showdown with the federal government. That law goes into effect in March, and it is seen as a test case to challenge a 2012 case, Arizona v. United States, that narrowly left the power to determine immigration policy to the federal government, not the states.
Texas and Louisiana already lost a case where they had challenged the Biden administration’s immigration guidelines and its deportation policies. Those guidelines had been halted nationwide by a federal judge in Texas, who ruled they violated federal law. In that case, by a 5-4 decision, the Supreme Court initially and rather alarmingly had allowed the injunction to remain in place. But ultimately it ruled 8-1 in June of 2023 against Texas and Louisiana, with only Justice Alito in dissent, reaffirming the federal government’s central role on matters of immigration policy.
Where things go from here
Governor Abbott and state Attorney General Paxton remain keen to find where the new conservative majority on SCOTUS might rule their way. So they keep pushing and testing the limits. In the razor wire case, while there’s no way to know why four extremist justices dissented from the lifting of the injunction—and it conceivably could have been because the full matter will be taken up shortly anyway by the Fifth Circuit in February—the impression it has left is unmistakable.
As CNN legal analyst and University of Texas law professor Steve Vladeck observed, “Whatever one thinks of current immigration policy, it ought not to be that controversial that states cannot prevent the federal government from enforcing federal law—lest we set the stage for Democratic-led states to similarly attempt to frustrate the enforcement of federal policies by Republican presidents.” He added, “That four justices would still have left the lower-court injunction in place will be taken, rightly or wrongly, as a sign that some of those longstanding principles of constitutional federalism might be in a degree of flux.”
In response to the loss before the Supreme Court, a spokesman for Abbott put out a statement claiming that the “absence of razor wire and other deterrence strategies encourages migrants to make unsafe and illegal crossings between ports of entry.” He added that the governor “will continue fighting to defend Texas’ property and its constitutional authority to secure the border.”
But this assertion about unsafe crossings was disputed by federal officials, underscoring the need for a single government policy. Said a White House spokesperson, “Enforcement of immigration law is a federal responsibility. Rather than helping to reduce irregular migration, the State of Texas has only made it harder for frontline personnel to do their jobs and to apply consequences under the law. We can enforce our laws and administer them safely, humanely, and in an orderly way.”
This was for now only a battle over a temporary injunction. The Fifth Circuit will next consider the full case in February, incluing whether to lift the injunction permanently. But it will do so with an understanding that five SCOTUS justices view Texas as unlikely to succeed on the merits. An appeal back up to the Supreme Court is likely, no matter which side prevails at the appellate level.
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Texas’s legal argument was frivolous. The vote at the Supremes should have been 9-0. That it wasn’t should make us all fear for our country’s future as a nation that operates under the rule of law!
Jefferson Davis Racist, traitor, insurrectionist President of Confederate Stares of America Public RealmJohn C.Calhoun White Supremacist, racist, nullifier U.S. Vice President Public Realm
Jeff Davis and John C. Calhoun would be proud of the dissenters — although, ironically, those two “nullifiers” wouldn’t even recognize one of the dissenters, Justice Thomas, as a “person” with any rights at all, let alone the ability to sit on our highest Federal Court! Remarkably, despite claiming to be a student of history, Thomas was unable to connect the dots between Calhoun’s and Davis’s rebellious, racist, dehumanization of African Americans and Greg Abbot’s rebellious, racist, dehumanization of legal asylum seekers of color!
The Federal Government’s authority to stop State Governments seeking to nullify and deny Federal authority matters! That’s particularly true when those acts of nullification are based on racial animus! That today’s righty-dominated Supremes won’t unite behind this straightforward principle of Federalism is a blow to equal protection under the Constitution!
States can’t use the federal courts to try to force the federal government to arrest and deport more people who are in the country illegally, the Supreme Court ruled Friday.
The 8-1 decision could cut down on a flood of lawsuits recent administrations have faced from state attorneys general and governors who disagree with Washington on immigration and crime policy.
The high court’s ruling found that Texas and Louisiana lacked standing to pursue litigation challenging immigration enforcement priorities established by President Joe Biden’s administration soon after he took office.
It’s the second decision in eight days in which the Supreme Court has rejected lawsuits from Texas on standing grounds. Last week, the court ruled that the state did not have standing to challenge a federal law that gives preferences to Native American families in the adoptions of Native children.
Six states are challenging the debt-relief plan, but it’s not clear if the states have suffered the sort of concrete harm that is typically necessary to challenge a policy in court. (In a separate case, two student-loan borrowers who oppose the plan are also suing. Their legal standing is also contested.)
In the immigration case, critics of the states’ approach said their claim of likely financial injury from unwarranted release of undocumented migrants was murky. But the court’s majority opinion written, by Justice Brett Kavanaugh, took a different tack and said the case was flawed because of a general principle against suits trying to force the executive branch to enforce the law against someone else.
“This Court has consistently recognized that federal courts are generally not the proper forum for resolving claims that the Executive Branch should make more arrests or bring more prosecutions,” Kavanaugh wrote, in an opinion joined by Chief Justice John Roberts and the court’s three liberals. “If the Court green-lighted this suit, we could anticipate complaints in future years about alleged Executive Branch under-enforcement of any similarly worded laws — whether they be drug laws, gun laws, obstruction of justice laws, or the like. We decline to start the Federal Judiciary down that uncharted path.”
I suppose whether you “like” or “hate” this decision depends on who is in power and what you think about them. As my friend and immigration commentator Nolan Rappaport told me, immigrants’ rights advocates might cheer this decision today, but will not be happy if Trump is elected and they can no longer team up with Democrat State AGs to challenge alleged abuses of prosecutorial authority by Trump’s Administration.
Recognizing Nolan’s point that the “sword cuts both ways,” I think this is the correct result. Perhaps, that’s because it’s a derivation of a long line of cases on prosecutorial discretion that we often successfully invoked during my time in the “Legacy INS” OGC. Also, it seems correct from a “separation of powers” standpoint.
One of the cases that the Court relied upon is Linda R. S. v. Richard D., 410 U. S. 614 (1973). Interestingly, that case, then relatively recently decided, was one of the many I cited in the July 15, 1976 opinion that I drafted for then General Counsel Sam Bernsen approving the INS’s use of prosecutorial discretion.See https://immigrationcourtside.com/wp-content/uploads/2018/02/Bernsen-Memo-service-exercise-pd.pdf.
The “Bernsen opinion” (FN 8) cited the various Lennon cases and made reference to Leon’s article in Interpreter Releases (1976) on the topic.
After five decades of working in the immigration field in different positions and different levels, I think it’s always interesting how things from my “early career” still have relevance today!
Indeed, although you wouldn’t know it from the mainstream media and the “alternate universe debate” now going on in Congress, the GOP claims of “open borders” and lack of immigration enforcement are total BS. In fact, the Biden Administration has far “out-deported” and “out-enforced” the Trump Administration. See, e.g., https://amsterdamnews.com/news/2024/01/03/deportation-numbers-under-biden-surpass-trumps-record/.
As experts and those who actually work with migrants at the border know, “enforcement only” doesn’t work at the border or anywhere else, although it does fuel political movements and powerful corporate interests. See, e.g., .https://open.substack.com/pub/theborderchronicle/p/prepare-yourselves-for-the-2024-border?r=1se78m&utm_medium=ios&utm_campaign=post. But, truth, rationality, humanity, expertise, and the rule of law are largely absent from today’s one-sided immigration discussions. That doesn’t bode well for the future of our nation or the world.
In the 18 months since the Supreme Court’s Dobbs decision, Republican officials have had ample opportunity to prove they’re not merely antiabortion but also pro-child. They keep failing.
GOP politicians across the country have found new and creative ways to deny resources to struggling parents and children. Take, for instance, the summer lunch program.
Under a new federal program, children who are eligible for free or reduced-price school lunches can also receive food assistance during the summer. The policy, created as part of the bipartisan budget deal in 2022, gives eligible families $40 per month per child, or $120 total over the summer. It often works essentially as a top-up for food stamps, since these families must buy more groceries when their children lose access to nutritious school meals when classes go out of session. (It’s similar to a temporary program offered during the pandemic, though it’s much less generous.)
The federal government pays the entire cost of the benefits associated with this new food program and half the administrative costs. The program isn’t automatic, though; states had to opt in by Jan. 1.
Republican governors across 15 states chose not to, as my Post colleague Annie Gowen reported. Up to 10 million kids will be denied access to this grocery aid as a result.
Why have these governors rejected food assistance, even amid soaring grocery prices and pledges to help families strained by inflation?
Some states, such as Texas and Vermont, cited operational or budgetary difficulties with getting a new system running in time for this summer. These obstacles could presumably be surmounted in future years. In other states, GOP politicians expressed outright disdain for the program.
Nebraska Gov. Jim Pillen, for instance, said of the new program, “I don’t believe in welfare.” A spokeswoman for Florida’s Department of Children and Families cited vague unspecified fears about “federal strings attached.”
Iowa Gov. Kim Reynolds suggested there was no point in giving this grocery assistance to food-insecure children “when childhood obesity has become an epidemic.”
Reynolds is apparently unaware that obesity is linked to a lack of reliable access to nutritious food and that children in food-insecure homes face a higher risk of developmental problems. This suggests withholding this nutritional assistance hurts not only the state’s children today but also its workforce tomorrow.
This is hardly the only time GOP politicians have worked to swipe food from the mouths of hungry children — and their moms.
. . . .
Indeed, if a version of a child tax credit expansion ultimately materializes — and it might in the next few days — that will happen only because Democratic lawmakers explicitly held those corporate tax breaks hostage in exchange for aid to poor kids.
Republicans keep assuring the American public that they really, truly care about helping women forced into bearing children even when they’re not financially or emotionally ready to do so. They claim they want to protect youngsters and invest in their financial future.
Time for the GOP to put its money where its mouth is.
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