"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
NQRFPT = “Not Quite Ready For Prime Time” — Unfortunately, it’s a more than apt descriptor for the Biden Administration’s overall inept and tone-deaf approach to due process and immigrants’ rights in the beyond dysfunctional and unjust “Immigration Courts” under EOIR @ Garalnd’s DOJ.
Mike LaSusa Legal and Natioanl Security Reporter Law369 PHOTO: Twitter
Influx Of Solo Kids Poses Challenge For Immigration Courts
By Mike LaSusa
Law360 (March 31, 2022, 2:44 PM EDT) — Unaccompanied minors arriving in increasing numbers at the southern U.S. border are likely to face a tough time finding legal representation and navigating an overwhelmed immigration court system that has no special procedures for handling their cases.
The number of unaccompanied children encountered by U.S. Customs and Border Protection has risen sharply over the past year, to an average of more than 10,000 per month, according to CBP data. Those kids’ cases often end up in immigration court, where they are subject to the exact same treatment as adults, no matter their age.
“Nobody really thought of this when the laws were enacted,” said retired Immigration Judge Paul Wickham Schmidt, now an adjunct professor at Georgetown Law. “Everything dealing with kids is kind of an add-on,” he said, referring to special dockets for minors and other initiatives that aren’t expressly laid out in the law but have been tried in various courts over the years.
About a third of the immigration court cases started since October involve people under 18, and of those people, 40% are 4 or under, according to recent statistics from the U.S. Department of Justice’s Executive Office for Immigration Review, which operates the courts.
It’s unclear how many of those cases involve unaccompanied children and how many involve kids with adult relatives, and it’s hard to make historical comparisons because of changes in how the EOIR has tracked data on kids’ cases over the years.
But kids’ cases are indeed making up an increasing share of immigration court dockets, according to Jennifer Podkul, vice president of policy and advocacy for Kids in Need of Defense, or KIND, one of the main providers of legal services for migrant kids in the U.S.
“The cases are taking a lot longer because the backlog has increased so much,” Podkul said. Amid the crush of cases, attorneys can be hard to find.
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The immigration courts should consider “getting some real juvenile judges who actually understand asylum law and have real special training, not just a few hours of canned training, to deal with kids,” said Schmidt, the former immigration judge.
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Those with Law360 access can read Mike’s complete article at the link.
For what seems to be the millionth time with Garland, it’s not “rocket science.”🚀 He should have brought in Jen Podkul, her “boss,” Wendy Young of KIND, or a similar qualified leader from outside Government, to kick tail, roll some heads, clean out the deadwood, and set up a “Juvenile Division” of the Immigration Court staffed with well-qualified “real” judges, experts in asylum law, SIJ status, U & T visas, PD, and due process for vulnerable populations.
Such judicial talent is out there. But, that’s the problem with Garland! The judicial and leadership talent remain largely “out there” while lesser qualified individuals continue to botch cases and screw up the justice system on a regular basis! Actions have consequences; so do inactions and failure to act decisively and courageously.
And, of course, Garland should have replaced the BIA with real judges — progressive practical scholars who wouldn’t tolerate some of the garbage inflicted on kids by the current out of control, undisciplined, “enforcement biased,” anti-immigrant EOIR system.
Instead, Garland employs Miller “restrictionist enforcement guru” Tracy Short as his “Chief Immigration Judge” and another “Miller holdover” David Wetmore as BIA Chair. No immigration expert in America would deem either of these guys capable or qualified to insure due process for kids (or, for that matter anyone else) in Immgration Court.
Yet, more than a year into the Biden Administration, there they are! It’s almost as if Stephen Miller just moved over to DOJ to join his buddy Gene Hamilton in abusing immigrants in Immigration Court. (Technically, Hamilton is gone, but it would be hard to tell from the way Garland and his equally tone-deaf lieutenants have messed up EOIR. Currently, he and Miller are officers of “America First Legal” a neo-fascist group engaged in “aiming to reinstate Trump-era policies that bar unaccompanied migrant children from entering the United States,” according to Wikipedia.)
Meanwhile, the folks with the expertise to solve problems and get the Immigration Courts back on track, like Jen & Wendy, are giving interviews and trying to fix Garland’s ungodly mess from the outside! What’s wrong with this picture? What’s wrong with this Administration?
We’re about to find out! Big time, as Garland’s broken, due-process denying “court” system continues it’s “death spiral,” ☠️ taking lots of kids and other human lives down with it!
Two things stand out about this outcome: first, the remarkable philosophical flexibility of the Court’s conservatives when their political allies appear before them. The case is only the latestinstance in which they have tacitly endorsed some of the president’s more aggressive legal arguments, legitimizing his use of anti-immigrant fearmongering as public policy.
As Professor Nancy Morawetz detailed at the ImmigrationProf Blog, the majority reached its conclusion by selectively applying rules for analyzing vague laws—rules that, if applied to Barton’s case, might have led to a different result. Conservative judges often argue for resolving ambiguities by focusing on the plain meaning of statutory text. As a result, they are supposedly reluctant to assume that any statutory language is redundant or superfluous. (When the Wisconsin Supreme Court’s conservatives decided Democratic Governor Tony Evers couldn’t postpone in-person voting during the COVID-19 pandemic, for example, they leaned heavily on this principle.) But here, the majority’s reasoning required treating part of the text as redundant. Kavanaugh barely bothered to address this divergence from prevailing conservative judicial philosophy: He simply stated that “redundancies are common in statutory drafting,” and that in this case, “the better overall reading of the statute contains some redundancy.”
“That is not the argument you would expect from the conservative wing of the Court,” Professor Morawetz wrote. “It is hard to walk away without the sense that there are different statutory interpretation rules at work for those who are powerful and those who are not.”
The majority and dissenting opinions also contrast sharply in the extent to which the justices considered the impact of their decision on Barton, his family, and other people like Barton whose fates this case determined. The majority begins with a recitation of his involvement with the criminal legal system, noting his convictions “on three separate occasions spanning 12 years.” Later, Kavanaugh takes care to name the substances—methamphetamine, cocaine, and marijuana—involved in the drug arrests, and describes the gun and assault convictions using lurid, cinematic language, explaining that Barton and a friend “shot up” an ex-girlfriend’s house. (This phrase is decidedly not a legal term of art.) Read together, these rhetorical flourishes evoke a familiar stereotype: a scary, drug-involved career criminal who is liable to start shooting at any moment.
The Barton described in Sotomayor’s dissent, which all four liberal justices signed, sounds like a different person altogether. She carefully lays out the facts of Barton’s early life, personal challenges, and subsequent accomplishments—valuable context that Kavanaugh and company conspicuously omitted. (The details about his background included in the beginning of this article come primarily from her opinion.) For example, it was Barton’s friend, Sotomayor notes, who actually fired at the ex-girlfriend’s house. In court, Barton testified that he didn’t know the friend even had a gun, let alone planned to shoot it.
The rest of the dissent fills in more of the blanks left by the majority. She writes about Barton’s stints in boot camp and rehab, and praises him for getting his GED diploma, graduating from college, and leading “a law-abiding life.” She notes that his drug convictions were for possession, not distribution, and linked them to his since-resolved dependency. She frames Barton’s three convictions against the backdrop of his 30 years in the United States, not the 12-year period in which they occurred. And she quotes the immigration judge who evaluated Barton’s initial application for mercy and badly wanted to approve it; he “is clearly rehabilitated,” the judge said, and his family “relies on him and would suffer hardship” if he were deported.
At every juncture, Sotomayor emphasizes the real-world implications of what the conservatives presented as a rather dry question of statutory interpretation: By the time immigration authorities put Andre Barton in removal proceedings, every member of his immediate family was living in America. Deporting him deprives his family of its primary provider, and sends him off to a country he hasn’t seen in decades.
Not until the very end of Kavanaugh’s opinion does he begin to grapple with the stakes of the case before him. “Removal of a lawful permanent resident … is a wrenching process, especially in light of the consequences for family members,” he wrote. “Removal is particularly difficult when it involves someone such as Barton who has spent most of his life in the United States.”
Just as quickly as he began to acknowledge Barton’s humanity, though, Kavanaugh returned to emphasizing the length of Barton’s rap sheet and the gravity of his transgressions. Congress chose to provide for the deportation of immigrants who commit “serious crimes,” he reasons, and to cut off those with “substantial criminal records” from the possibility of relief; the law, he writes, does not extend leniency to someone who “has amassed a criminal record of this kind.” Put differently, the Court’s conservatives are not responsible for what happened to Andre Barton; Barton, in their telling, did this to himself.
The exact words the justices use while resolving arcane questions about obscure immigration statutes may not seem significant. But when the choice the Court ultimately makes is so callously indifferent to the plight of vulnerable people, framing becomes a critical tool for defending their deliberative process. The decision in Barton v. Barr enables an unapologetically anti-immigrant president to deport longtime legal residents over events that took place years ago, breaking up families and depriving children of their parents and parents of their children. Kavanaugh knows this perfectly well; he acknowledges as much in his opinion. By sketching a two-dimensional portrait of Andre Barton as a dangerous ex-con and ignoring decades of growth and development since, Kavanaugh and the conservatives quietly absolve themselves of any moral obligation to think about it.
Jay Willis is a senior contributor at The Appeal.
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Read Jay’s complete article at the link.
Yup. No surprise to readers of Courtside.
While, as usual, I was willing to give J.R. and his merry band the “benefit of the doubt,” presuming at least some modicum of intellectual honesty and human decency regardless of philosophical disposition, I’ve been “onto” the judicial, intellectual, and moral fraud going on at our highest Court for some time now.
Yeah, on a few occasions (see, e.g., Pereira, Guerrero-Lasprilla) some members of “The Five” have had no choice but to recognize that there was no possible way to justify some aspects of the Administration’s vendetta against immigrants and asylum seekers. But, on the big questions, from the bogus “Travel Ban,” to the cruel, inhuman, and clearly illegal and unconstitutional “Let ’Em Die in Mexico” Program, to the illegal White Nationalist scheme to misapply “public charge” grounds to attack the health and welfare of ethnic communities, “The Five” have been out front on the White Nationalist movement to “Dred Scottify” and dehumanize “the other.”
To be fair, the BIA decision here Matter of Jurado-Delgado, 24 I&N Dec. 24 I&N Dec. 29 (BIA 2006), originated years ago, in the “Post-Ashcroft-Purge-Era” of the BIA, during the Bush II Administration. But, all that shows is that the BIA’s drift away from the most fair and humane interpretations of the immigration laws and toward “enforcement friendly jurisprudence,” has been going on for the last two decades, across three different Administrations. However, under Trump, Sessions, Whitaker, & now Barr that “drift” has now become a “mad dash to the bottom.”
Thanks to folks like Jay Willis, Professor Nancy Morawetz, and other lawyers, commentators, and journalists, history will not let the “J.R. Five” escape unscathed for their corrupt backing of “The New Jim Crow.”
Due Process Forever! Jim Crow & Complicit Supremes, Never!
[Maj. Op.] “Barton argues that the BIA and the Eleventh Circuit misinterpreted the statute. He contends that the §1182(a)(2) offense that precludes cancellation of removal must be one of the offenses of removal. We disagree with Barton, and we affirm the judgment of the U. S. Court of Appeals for the Eleventh Circuit.”
[Dissent] “At bottom, the Court’s interpretation is at odds with the express words of the statute, with the statute’s overall structure, and with pertinent canons of statutory construction. It is also at odds with common sense. With virtually every other provision of the INA, Congress granted preferential treatment to lawfully admitted noncitizens—and most of all to LPRs like Barton. But because of the Court’s opinion today, noncitizens who were already admitted to the country are treated, for the purposes of the stop-time rule, identically to those who were not—despite Congress’ express references to inadmissibility and deportability. The result is that, under the Court’s interpretation, an immigration judge may not even consider whether Barton is entitled to cancellation of removal—because of an offense that Congress deemed too trivial to allow for Barton’s removal in the first instance. Because the Court’s opinion does no justice to the INA, let alone to longtime LPRs like Barton, I respectfully dissent.”
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Thanks Dan.
Justice Kavanaugh wrote the majority opinion.
As a frequent critic of the “J.R. Five” and their general predisposition to stretch to reward the regime over individuals seeking Due Process and fundamental fairness, I wasn’t surprised by this result.
As compared with trashing the legal rights of asylum seekers and those seeking legal status as “The Five” have done in other cases, this decision on waivers has a much more limited impact. Nevertheless, it does unnecessarily “screw” long-time members of our society with potential equities to offset their misconduct.
The vote should have been 9-0 in favor of Mr. Barton. The “GOP majority,” supposedly made up of “strict constructionists,” “torqued” the actual language of the statute to reach their preferred result — “stiffing” Mr. Barton who has resided in the U.S. since age 10.
By contrast, reading the statutory language at its face value, Justice Sotomayor and her dissenting colleagues also reached a practical, common sense result that would have allowed Immigration Judges to “weigh the equities” in deciding whether to grant the waiver to long-time green card holders. It by no means guarantees them a “win.” It just allows them and their families to to “make their case” on the merits.
Perhaps, effectively denying individuals a meaningful “day in court” on relief from deportation speeds up the “deportation railroad” a bit. But, at what cost?
