"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.
Wendy Young President, Kids In Need of Defense (“KIND”)
Reacting to this outrageous breach of the law and morality, Wendy Young, the President of Kids in Need of Defense (“KIND”) said:
“The administration’s devastating decision to strip vital legal services away from unaccompanied children runs counter to its stated desire to protect kids, some as young as toddlers, against trafficking, exploitation, and other abuses that make them easy prey for those who would do them harm. The critical legal programs eliminated today have long-standing bipartisan support from Congress, not only because they protect children from danger, but because they also improve efficiencies in the immigration system by ensuring legal counsel for unaccompanied children who otherwise must navigate a complex court proceeding alone. This includes facilitating private-sector pro bono legal services that KIND oversees with almost 900 law firms, corporations, law schools, and bar associations at no cost to the government. The value of these contributions from KIND’s pro bono partners is approximately $1 billion, a significant contribution at a time when the federal government is claiming to seek cost savings. Elimination of the services in this contract, which are mandated by law, makes it all but impossible for many unaccompanied children to appear for their immigration court hearings or otherwise remain in touch with immigration agencies. It severs key lines of communication and coordination between vulnerable unaccompanied children and the institutions in place to ensure their protection.
“While today’s development is unconscionable, Congress can act to restore these key protections. For years, bipartisan spending bills have dedicated resources to this important work. Doing so has never been more important than now. Congress has full authority on its own to remedy the crisis the administration’s actions will yield – authority it should exercise decisively. KIND calls upon the House of Representatives and Senate to work in a bipartisan fashion to mandate robust funding in the FY 2026 federal appropriations package to the Office of Refugee Resettlement for complete restoration of unaccompanied children’s legal services, including full legal representation. The safety of thousands of children depends on it.”
Many thanks to our wonderful pro bono friends at Akin Gump!
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration JudgesKnightess of the Round TableLeading the charge for due process! Adina Appelbaum Director, Immigration Impact Lab Amica Center for Immigrant Rights Charter Member, NDPA PHOTO: “30 Under 30” from Forbes
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
The Trump administration has also reportedly taken aim at Biden appointees serving on the Board of Immigration Appeals (BIA)—the body charged with reviewing immigration judges’ decisions—by reducing the number of members from 28 to 15. As of January, the BIA’s backlog reached a decade-high record of more than 127,000 pending cases, an almost eightfold increase compared to 2015.
Paul Schmidt, a retired immigration judge and one-time BIA chairman, traced a parallel between the Trump administration’s “purge” and a George W. Bush-era move to “streamline” the BIA. Back then, Attorney General John Ashcroft slashed the members perceived as pro-immigrant. The Department of Justice later found itself at the center of a scandal over senior officials’ efforts to hire judges based on their political and ideological affiliations.
Similar politicization could be happening now. Prior to her unceremonious termination, Doyle had been flagged on a “DHS Bureaucrat Watchlist” by the American Accountability Foundation, a right-wing group backed by the Heritage Foundation. Last year, the organization announced an initiative called “Project Sovereignty 2025” to expose “high-ranking civil servants within DHS and DOJ who are likely to thwart an incoming conservative administration’s immigration agenda.”
The website describes Doyle, who previously served as head prosecutor with
US Immigration and Customs Enforcement’s Office of the Principal Legal Advisor (OPLA), as an “immigration activist lawyer” with a “known history as a critic of DHS” and a “lifelong commitment to open borders and mass migration.” (It cites Doyle’s involvement, while in private practice, in a lawsuitagainst the first Trump administration’s infamous ban on travelers from Muslim-majority countries as evidence of her supposed ideological bias.)
“Significant time and resources went into hiring all of us and the group had a diverse background including a number of former OPLA prosecutors,” Doyle, whose hiring process took 14 months between multiple rounds of interviews and an extensive background check, wrote in a LinkedIn post, “but what we all had in common is that we were hired—through a neutral system I will point out—during the Biden administration. This firing was political.”
Schmidt, the former BIA chairman, predicts all of this is just the start: “I think the worst is yet to come.”
Kerry Doyle ESQ Former Principal Legal Advisor, ICE, DHS Official USG Photo
Isabela Dias Staff Writer, Immigration & Social Issues Mother Jones PHOTO: Twitter
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Not only does the kakistocracy treat immigrants unfairly, cruelly, and with disrespect, they inflict the same mistreatment on some of their own employees — many dedicated civil servants with expertise and honorable service.🤮
As noted by Isabela, GOP Administrations have a history of politicized hiring at EOIR and questionable personnel maneuvers going back several decades!
By sharp contrast, AG Merrick Garland actually honored all 17 of the “pipeline” IJ appointments made by his GOP predecessor AG Bill Barr under flawed selection procedures that favored those with prosecutorial or government service, some glaringly lacking immigration expertise, while discouraging or passing over better-qualified applicants with actual experience and expertise representing asylum seekers and other immigrants in his weaponized, DHS enforcement-oriented “Immigration Courts.” I was one of the many observers who harshly criticized Garland’s ill-advised and timid accession to his GOP predecessor’s questionable selections. See, e.g., https://immigrationcourtside.com/2021/05/05/%f0%9f%a4%ae%f0%9f%91%8e%f0%9f%8f%bbshocking-betrayal-justice-garland-disses-progressive-experts-with-secret-appointments-of-17-unqualified-immigration-judges-n/
While Garland did eventually make some good appointments of well-qualified jurists, overall his record on judicial appointments at EOIR was “middling at best” — certainly not the strong, effective makeover with subject matter experts unswervingly committed to due process, fundamental fairness, and best practices so desperately needed at EOIR! As a result, ridiculously inconsistent decision-making, mundane precedents, and entrenched anti-asylum, anti-immigrant attitudes at EOIR remained at endemic levels throughout the Biden Administration!🤯🤬
When it comes to EOIR and enlightened, consistent, due-process- focused immigration policies, Dems are often their own worst enemies — a disgraceful trend that infuriatingly continues even today!🤬
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”St. Valentine’s Day Massacre Wall Creative Commons 2.0
Reprinted with permission:
Statement from 7 terminated Assistant Chief Immigration Judges (ACIJs):
*Please note – pronouns are nonbinary below only to maintain anonymity.
The terminated ACIJs are 5 females and 2 males, all age 41 or older. 2 are military veterans. 2 are racial minorities. Together, the 7 terminated ACIJs have over 105 years of public service that ended abruptly with an email sent Friday afternoon, Valentine’s Day.
1. Facts related to termination:
– Friday afternoon we all received by e-mail a PDF letter terminating us with no notice and no cause for the termination.
2. Summary of our experience: Combined, the 7 ACIJs led 18 immigration courts, and supervised approximately 135 immigration judges and 418 support staff. One was working on opening a new immigration court with 4 judges. Their termination leaves roughly 25% of the nation’s immigration courts without leadership or additional judges to preside while the immigration case backlog grows to over 3.6 million cases.
– At least one ACIJ was sent the termination email during the middle of a merits hearing (asylum case) over which they were presiding.
– 4 of the ACIJs were backups for each other’s courts, so at least 4 courts are without any clear leadership.
Collectively, we are devastated at the loss of our ability to continue in our jobs serving the public and serving EOIR’s mission to “adjudicate immigration cases by fairly, expeditiously, and uniformly interpreting and administering the Nation’s immigration laws.”
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Rather than a “model of due process and fundamental fairness,” under this Administration EOIR is becoming a “parody of justice.” Obviously, getting rid of high-performing, experienced judges who were also in leadership positions, particularly in the face of a backlog approaching 4 million cases, has nothing to do with “efficiency” and everything to do with weaponization of the Immigration Courts against individuals seeking to vindicate their legal rights under our laws and our Constitution!
Thanks to this group for your service, and Due Process Forever!
Redux of the “Ashcroft Purge of the BIA” in ‘03!🤮 That touched off a crisis in the Circuit Courts who were infuriated by the resulting sloppy “rubber stamp” denials and intemperate language from some IJs. Circuit Judges Posner (CA 7) and Walker (CA 2) were particularly harsh and publicly critical of EOIR’s poor performance. Former GOP House staff member and “practical scholar” Peter Levinson published the definitive analysis of this due process farce in his article “The Facade of Quasi-Judicial Independence In Immigration Appellate Adjudications,” available here: https://immigrationcourtside.com/2024/04/02/%e2%9a%96%ef%b8%8f-bia-expands-to-28-appellate-judges-plus-bonus-coverage-lest-we-forget-the-ashcroft-purge-of-the-bia/
⚖️ BIA EXPANDS TO 28 APPELLATE JUDGES! — PLUS BONUS COVERAGE: “Lest We Forget: The Ashcroft Purge of the BIA!” Dan Kowalski reports: This document is scheduled to be published in the Federal Register on 04/02/2024 “On April 1,
Not surprisingly, following the purge, the BIA found it difficult to operate with an arbitrarily reduced number of members. To fill the gap that they had created, DOJ politicos and “EOIR Management” began designating senior BIA staff attorneys as “Temporary Board Members” (“TBMs”). Unlike the “purged members” who had gone through a competitive selection process prior to appointment, the designation of TBMs was solely within the discretion of EOIR Management subject to approval by the Deputy Attorney General.
Only “BIA staff insiders” were considered for these appointments. There was no transparent public selection process.
Significantly, the TBMs had no vote at en banc conferences nor could they vote on publication of precedents (although they could be panel members on published precedent decisions voted on by a majority of “permanent” Board Members). While their terms of service were supposed to be limited, subject to reappointment, this requirement was largely ignored by the DOJ and EOIR Management until somebody raised it as a potential issue and corrective action was taken. Obviously, TBMs who aspired to one day join the BIA on a permanent basis had every incentive not to “rock the boat” or show “undue independence” in a way that might displease EOIR Management or the DOJ politicos who were involved in such selections.
At first, this “insider process” was kept largely “below the radar screen.” But, eventually, as attorneys started noticing unfamiliar names on appellate decisions, the process was acknowledged by EOIR Management and the names and bios of the TBMs started appearing on the EOIR website. (The BIA had previously, on occasion, used field Immigration Judges, OCAHO ALJs, and rehired retired Board Members “sitting by designation,” on panels in a manner similar to the U.S. Circuit Courts of Appeals. The regulations had been changed to permit the designation of senior BIA staff as an additional option.)
Eventually, the DOJ “came clean” and began once again expanding the “permanent membership” of the BIA without ever publicly acknowledging that it had been problematic and wasteful to reduce the BIA’s membership for political reasons in the first place. That expansion eventually reached 28 Appellate Immigration Judges as described in the “Courtside” link above.
So, now begins a new round of arbitrary, politically motivated, “reductions” in the size of the BIA, even in the face of overwhelming backlogs. But, if this “politically weaponized” parody of a ”court system” continues into the future, don’t be surprised if some future DOJ politicos return to the “TBM system” or start once again increasing the number of BIA “permanent” judges.
That, of course, highlights the bigger question: How does a “court system” where politically-motivated Executive Branch employees have complete control and discretion over the hiring, firing, and “supervision” of “administrative judges” pass muster under the due process clause of the 5th Amendment? Basically, both Article III Courts and the Congress have “punted” on the glaring conflicts of interest and inherent biases presented by such a “captive” tribunal.
Here’s additional coverage from Britain Eakin on Law360, quoting me, among others:
St. Valentine’s Day Massacre Wall Creative Commons 2.0
Here’s former Judge Kerry Doyle’s account of her recent firing by EOIR, as originally posted on LinkedIn. Notably, Judge Doyle is a widely-respected immigration expert, a “total pro,” with decades of professional experience, including both ICE and the private sector. In other words, she is exactly the kind of fair, “practical scholar” judge EOIR needs to carry out its real, even if disgracefully abandoned, mission of guaranteeing due process and fundamental fairness for all!
Happy Saturday! I truly hope all of you were able to spend some time with someone you love 💕 yesterday on Valentine’s Day—two legged or four 😉. Sadly, my day was a little more complicated. I was, via email, terminated by the Acting Director of EOIR as an immigration judge yesterday, February 14, 2025.
I had not publicly posted that I had started working as an IJ in the hope of keeping my head down and just getting to work and avoiding having a bullseye on me. Unfortunately, I was unable to avoid the political pink slip.
This firing occurred despite the fact that the Immigration Court currently has in the neighborhood of 3.5 MILLION pending cases and DOJ is asking Congress for more money to hire more people at EOIR! (Hint: don’t fire the people you already have!). This firing occurred despite the fact that among my peers in my court, I had the longest and most extensive experience in immigration law and had served both as a defense counsel representing immigrants, but also as the top immigration prosecutor as PLA with ICE. I therefore had a unique perspective and experience that I could bring to my work as an immigration judge.
Sadly, DOJ cancelled our training that was to take place Feb. 10-14 (irony!) for me and the others hired late last year or early this year in my “class.” They never rescheduled it and then fired me and the rest of the new class yesterday.A number of Assistant Chief Immigration Judges were also fired. I can’t say I was surprised this happened. I was expecting it, especially when I showed up in the notorious “DHS Watchlist” late last year.
Significant time and resources went into hiring all of us and the group had a diverse background including a number of former OPLA prosecutors, but what we all had in common is that we were hired—through a neutral system I will point out—during the Biden Administration. This firing was political.
Needless to say, I’m looking for a new opportunity so let me know if you have any tips!Thanks to everyone. We will persist. What you do matters!
Her urgent message to the NDPA is truer now than ever: “What you do matters!”
Thank you for your service to our nation and to our justice system, Judge Doyle! 🇺🇸👍🏼🎖️⚖️🗽
Many thanks to the Round Table’s “Rapid Response Team” led by retired Judges “Sir Jeffrey” S. Chase and Dana Leigh Marks for spearheading this response on very short notice!
G. Reaper visits the BIA. Image: Hernan Fednan, Creative Commons License
COURTSIDE EXCLUSIVE
By Paul Wickham Schmidt
Courtside has learned that the following eight Garland-appointed BIA Appellate Immigration Judges have been “reassigned” to staff positions: Geller, LeMelle, Kludt, Reilly, Brown, Nahas, Clark, and Borkowski. A ninth, unidentified AIJ was placed on “administrative leave.”
The reassignments of these key quasi-judicial officials appears to be related to a memo sent to all agency heads from OPM on Jan. 20, stating: “No later than January 24, 2025, agencies should identify all employees on probationary periods, who have served less than a year in a competitive service appointment, or who have served less than two years in an excepted service appointment, and send a report to OPM listing all such employees to employeeaccountability@opm.gov, with a copy to Amanda Scales at amanda.scales@opm.gov. In addition, agencies should promptly determine whether those employees should be retained at the agency.”
Expect further weaponization of EOIR against due process and fundamental fairness (which are EOIR’s actual mission)!
Ortega v. Bonnar, 415 F.Supp.3d 963 (N.D. Cal. 2019)
Matter of Sugay, 17 I&N Dec. 637 (BIA 1981)
As I draft this, a flurry of new Executive Orders are raining down, and the Senate is scheduled to resume consideration on “S.5” (a.k.a. the Laken Riley Act). It’s a day of import, to say the least. And the first thing on my own mind is detention–specifically, potential attempts at re-detention, and/or new detention, of non-citizens who are already in the midst of removal proceedings.
In this blog, I’ll invoke what Judge Schmidt calls my “practical scholarship” skills to address the existing legal criteria for such re-detention, with a specific eye towards how it might be challenged. Here, we’re only considering the plight of non-citizens charged under section 236 of the Immigration and Nationality Act, which puts the authority and criteria for their detention at 8 U.S.C. § 1226(a)–(e). As a go-to introduction to this, and ICE detention in general, I highly recommend “A Guide to Obtaining Release from Immigration Detention,” which was published May 28, 2024 online by the National Immigration Project.[i]
As the NIP Guide so aptly explains, Immigration Court “removal” proceedings are instituted after an ICE-ERO officer decides whether to detain the individual and/or release them. Such release could be on bond, recognizance, or formal parole. According to the Vera Institute, immigration courts are facing a caseload of around 3.7 million—out of which around 18,500 are presently detained.[ii]
Statutory authority to detain is at INA section 236, which provides: “On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States…” 8 U.S.C.A. § 1226(a) (Westlaw 2025). Various criteria for mandatory detention are contained at § 236(c), but if that hurdle is cleared, release can (and does) happen for the remainder of proceedings.[iii]
The practice of re-detention, has so far, been rarely invoked. If that changes, the first argument that can be levied against it is that, unless DHS/ICE has demonstrated a material change of circumstances, re-detention violates binding legal precedent.[iv] On its face, the INA does provide that “[t]he Attorney General at any time may revoke a bond or parole authorized under subsection (a), rearrest the alien under the original warrant, and detain the alien. 8 U.S.C.A. § 1226(b) (Westlaw 2025); see also 8 CFR 236.1(c)(9).[v] However, as the district court noted in habeas proceedings in Ortega v. Bonnar, 415 F.Supp.3d 963, 968 (N.D. Cal. 2019), the BIA has placed “a limitation on this authority…In practice, the DHS re-arrests individuals only after a “material” change in circumstances.” Id., citing Matter of Sugay, 17 I&N Dec. 637 (BIA 1981) (other citations omitted).
The Sugay rule is this: “where a previous bond determination has been made by an immigration judge, no change should be made by a [deciding officer] absent a change of circumstance.” Matter of Sugay, 17 I&N Dec. 637, 640 (BIA 1981). This tenet is still (and repeatedly) recognized by the BIA and by federal courts.[vi] For instance, in Zabaleta v. Decker, 331 F.Supp.3d 67 (S.D.N.Y. 2018), the Southern District of New York granted a habeas petition, citing Sugay. The Court ordered remand to the Board for “legal error in the components of the BIA’s determination that the petitioner was a danger to the community and a risk of flight.”
Habeas, incidentally, is the means by which detention is challenged in federal court. BIA bond denials do not directly reach the Courts of Appeal due to INA § 236(e), which provides no court shall set aside the executive’s “discretionary judgment …regarding the detention or release of any” noncitizen. However, district court habeas jurisdiction falls under 28 U.S.C.A. § 2241(c)(3), which provides for the writ where a petitioner “is in custody in violation of the Constitution or laws or treaties of the United States.” Like the Southern District of New York in Zabaleta, other district courts have regularly asserted habeas jurisdiction in cases brought by detained non-citizens. A go-to, excellent practice advisory on habeas (linked in the end-notes) is the NILA/ABA Nuts and Bolts of Habeas Corpus Petitions Challenging Immigrant Detention (Jul. 31, 2021).[vii]
Whether challenged via habeas or directly before the IJ/BIA, on a basic level, detention must occur within the parameters of the executive branch’s delegated authority to detain. INA section 236(a) authorizes “detention pendinga decision on whether the alien is to be removed” (emphasis added). In a handful of cases that should be reviewed by any practitioner seeking to challenge an individual detention, the Supreme Court has indicated the power to detain is tethered to the reasonable exercise of this authority. Zadvydas v. Davis, 533 U.S. 678 (2001); Demore v. Kim, 538 U.S. 510 (2003); Nielsen v. Preap, 139 S.Ct. 954 (2018); see also Jennings v. Rodriguez, 138 S.Ct. 830, 846 (2018) (indicating that mandatory detention under INA § 236(c) has a “definite termination point”).
Considering this, litigators challenging detention have made direct constitutional arguments, rooted in the Fifth Amendment. The idea is that if the purported “reasons” for detention become too far-fetched from their legitimate (removal) goal, that detention violates procedural due process. In a post-Nielsen v. Preap Practice Advisory, the ACLU puts it this way: “Where an individual has lived peaceably in the community for years, and may well have strong family ties and a high likelihood of prevailing in her removal hearing, mandatory detention is no longer adequately linked to the government’s interest in preventing flight risk and danger.”[viii] This is because (the advisory cites), “Due process requires that immigration detention “‘bear[] a reasonable relation to the purpose for which the individual was committed.’” Demore v. Kim, 538 U.S. 510, 527 (2003), citing Zadvydas v. Davis, 533 U.S. at 690–91.
Similar arguments have been successful where detention was too prolonged to be considered reasonably tethered to the purpose of effecting removal. In 2020, the Northern District of Georgia directly utilized Mathews v. Eldridge, 424 U.S. 319 (1976), to hold that a habeas petitioner’s detention violated due process. J.G. v. Warden, Irwin County Detention Ctr., 501 F.Supp.3d 1331, 1336 (M.D. Ga. 2020). As part of the balancing test, the Court stated “prolonged immigration proceedings have stalled [the petitioner’s] removal case.” Both the NIP and the ACLU practice advisories contain numerous other examples of cases, both pre- and post Jennings v. Rodriguez, which ruled that detention was unconstitutional due to prolonged proceedings.
Importantly, many of these recent constitutional challenges have been successful despite directly contravening the “mandatory” detention requirements contained in the present version of 236(c). Demonstrably, then, the constitution—especially the Fifth Amendment and the celebrated liberty interest therein—has prevailed above the INA in cases of conflict. Should Laken Riley indeed come to pass, these cases can be invoked again—as can principals against retroactivity. It’s a bit of an aside, but I’m thinking here of the Fifth Circuit case of Lopez-Ventura v. Sessions, 907 F.3d 306, 313 (5th Cir. 2018), in which the Fifth Circuit refused to presume the INA’s definition of “controlled substance” applied retroactively, and stated that presumption against retroactivity was “a legal doctrine centuries older than our Republic.”
As I was preparing today’s blog, I remembered an old 2016 Federal Lawyer column that I wrote when home raids first entered the news. I found an e-interview I did with pro bono attorney Katie Shepherd, who was managing the “CARA” project at family detention centers. At the time, she stated, ICE was engaged in a wholesale policy shift from “a policy of deterrence through deportation to a policy of deterrence through detention.”[ix] Public rhetoric has, of course, shifted since that time, and now we are looking at a policy of terror and retribution, in which detention is but one tool. My hope is that everyone will remember that our constitution is still here; and that, even very recently, it’s been applied in the context of non-citizen detention. In the midst of this blog, I snuck in a primer on all the essential legal standards governing challenges to detention. I hope, though, that not everyone reading will have to use it.
[iii] The general criteria for release is that “such release would not pose a danger to property or persons, and that the alien is likely to appear for any future proceeding.” 8 C.F.R. § 1236.1(c)(8) (ecfr.gov) (accessed Jan. 20, 2025).
[iv] As the Second Circuit puts it bluntly, “[t]he BIA is required to follow its own precedent.” Paucar v. Garland, 84 F.4th 71, 80 (2d Cir. 2023).
[v] “When an alien who, having been arrested and taken into custody, has been released, such release may be revoked at any time in the discretion of the district director, acting district director, deputy district director, assistant district director for investigations, assistant district director for detention and deportation, or officer in charge (except foreign), in which event the alien may be taken into physical custody and detained. If detained, unless a breach has occurred, any outstanding bond shall be revoked and canceled.”
[vi]See, e.g.,Matter of Garvin-Noble, 21 I&N Dec. 672, 699 (BIA 1997) (applying Sugay, describing “the authority of the Service to revoke or redetermine a bond or terms of release when circumstances involving a threat to the community come[] to light even after the Immigration Judge or the Board has rendered a decision.”
[ix] Email interview with Katie Shepherd, CARA Pro Bono Project, Mar. 3, 2016. The “CARA” project was a coalition group of numerous agencies, including the Catholic Legal Immigration Network and the American Immigration Lawyers Association. https://wafmag.org/2016/06/cara-family-detention-pro-bono-project/ (accessed Jan. 20, 2025).
The 1924 Immigration Act vilified, dehumanized, and barred many of those immigrants who have made America great, like Italian Americans being demeaned in this cartoon. Yet, some descendants of those unfairly targeted appear oblivious to the mistakes of the past and willing to inflict the same immoral lies, harm, and suffering on today’s migrants. IMAGE: Public RealmEduardo Porter Columnist and Editorial Board Member Washington Post PHOTO: WashPost
“I think that we have sufficient stock in America now for us to shut the door.”
That sounds like Donald Trump, right? Maybe on one of his campaign stops? It certainly fits the mood of the country. This year, immigration became voters’ “most important problem” in Gallup polling for the first time since Central Americans flocked to the border in 2019. More than half of Americans perceive immigrants crossing the border illegally as a “critical threat.”
Yet the sentiment expressed above is almost exactly 100 years old. It was uttered by Sen. Ellison DuRant Smith, a South Carolina Democrat, on April 9, 1924. And it helped set the stage for a historic change in U.S. immigration law, which imposed strict national quotas for newcomers that would shape the United States’ ethnic makeup for decades to come.
. . . .
The renewed backlash against immigration has little to offer the American project, though. Closing the door to new Americans would be hardly desirable, a blow to one of the nation’s greatest sources of dynamism. Raw data confirms how immigrants are adding to the nation’s economic growth, even while helping keep a lid on inflation.
Anyway, that horse left the stable. The United States is full of immigrants from, in Trump’s memorable words, “s—hole countries.” The project to set this in reverse is a fool’s errand. The 1924 Johnson-Reed immigration law might have succeeded in curtailing immigration. But the restrictions did not hold. From Presidents Johnson to Trump, efforts to circle the wagons around some ancestral White American identity failed.
We are extremely lucky it did. Contra Sen. Ellison DuRant Smith’s 100-year old prescriptions, the nation owes what greatness it has to the many different women and men it has drawn from around the world to build their futures. This requires a different conversation — one that doesn’t feature mass expulsions and concentration camps but focuses on constructing a new shared American identity that fits everyone, including the many more immigrants who will arrive from the Global South for years to come.
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Gordon F. Sander Journalist and Historian PHOTO: www.gordonsander.com
Gordon F. Sander, journalist and historian, also writes in WashPost, perhaps somewhat less optimistically, but with the same historical truth in the face of current political lies and gross misrepresentations:
Johnson and Reed were in a triumphant mood on the eve of their bill’s enactment. “America of the melting pot will no longer be necessary,” Reed wrote in the Times. He remarked on the new law’s impact: “It will mean a more homogenous nation, more self-reliant, more independent and more closely knit by common properties and common faith.”
The law immediately had its intended effect. In 1921, more than 200,000 Italians arrived at Ellis Island. In 1925, following the bill’s enactment, barely 6,000 Italians were permitted entry.
But there were less intended consequences, too, including on U.S. foreign relations. Although Reed insisted there was nothing personal about the act’s exclusion of Japanese people, the Japanese government took strong exception, leading to an increase in tensions between the two countries. There were riots in Tokyo. The road to Pearl Harbor was laid.
During the 1930s, after the eugenics-driven Nazis seized control of Germany, the quotas established by the act helped close the door to European Jews and others fleeing fascism.
At the same time, the law also inspired a small but determined group of opponents led by Rep. Emanuel Celler (D-N.Y.), who were committed to overturning it. Celler’s half-century-long campaign finally paid off in 1965 at the Statue of Liberty when, as Celler looked on, President Lyndon B. Johnson signed the Immigration and Nationality Act, which ended national origin quotas.
But with anti-immigration sentiment on the rise and quotas once again on the table, it’s clear that a century after its enactment, the ghost of Johnson-Reed isn’t completely gone.
Gordon F. Sander is a journalist and historian based in Riga, Latvia. He is the author of “The Frank Family That Survived: A 20th Century Odyssey” and other books
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Many thanks to my friend and immigration maven Deb Sanders for alerting me to the Sander article. I strongly urge everyone to read both pieces at the links above.
Perhaps the most poignant comment I’ve received about these articles is from American educator, expert, author, and “practical scholar” Susan Gzesh:
And because of the 1924 Act, my grandparents lost dozens of their siblings, parents, aunts, uncles, nieces, and nephews to the Holocaust in the 1940s because Eastern European Jewish immigration to the US had been cut off. They would have been capable of sponsoring more family to come to the US in the late 1920s and 30s, but there was no quota for them.
I have no words to describe my feelings about so-called experts who would praise the 1924 Act. I know that Asian Americans must feel similarly to my sentiments.
Well said, Susan!
Susan Gzesh American scholar, educator, expert, author PHOTO: U. Of Chicago
I’ll leave it at that, for you to ponder the next time you hear Trump, DeSantis, Abbott, and the like fear-monger about the bogus “invasion,” spout “replacement theory,” and extoll the virtues of extralegal cruelties and dehumanization inflicted upon “the other” — typically the most vulnerable who areseeking our legal protection and appealing to our senses of justice and human dignity! And, also you can consider this when the so called “mainstream media” pander to these lies by uncritically presenting them as “the other side,” thereby echoing “alternative facts!”
It’s also worth remembering this when you hear Biden, Harris, Schumer, Murphy, and other weak-kneed Dem politicos who should know better adopt Trumpist White Nationalist proposals and falsely present them as “realistic compromises” — as opposed to what they really are —tragic acts of political and moral cowardice!
Eventually, as both of the above articles point out, America largely persevered and prospered over its demons of racism, anti-Catholicism, and anti-immigrant nationalism. But, it would be wrong to view this “long arc” analysis as “zeroing out” the sins and horrors of our past.
Susan Gzesh’s relatives died, some horribly and painfully, before their time. That can’t be changed by future progress. Nor can the children they might have had or the achievements they never got to make to our nation and the world be resurrected.
As Susan mentions, the 1924 Act also reinforced long-standing racism and xenophobia against Asian Americans that led to the irreversible harm inflicted by the internment of Japanese American citizens, continuing Chinese Exclusion, and a host of state laws targeting the Asian population and making their lives miserable. Belated recognition of the wrongfulness and immorality of these reprehensible laws and actions does nothing for their past victims.
Many Irish, Italian, and other Catholics and their cherished institutions died, lost property, or were permanently displaced by widespread anti-Catholic riots brought on and fanned by the very type of biased and ignorant thinking that undergirded Johnson-Reed. They can’t be brought back to life and their property restored just by a “magic wave of the historical wand.”
U.S. citizens of Mexican-American heritage were deported and dispossessed, some from property their ancestors had owned long before there was even a United States. Apologizing to their descendants and acknowledging our mistakes as a nation won’t eliminate the injustices done them — ones that they took to their graves!
Despite the “lessons of the Holocaust,” America continues to struggle with anti-Semitism and anti-Islamic phobias and indifference to human suffering beyond our borders.
And, of course, the poisonous adverse impacts of slavery on our nation and our African-American compatriots continue to haunt and influence us despite disingenuous claims to the contrary.
Dan Kowalski Online Editor of the LexisNexis Immigration Law Community (ILC)Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
My friends immigration experts Dan Kowalski and Hon. Jeffrey Chase also had some “choice words” for the “false scholars” who extol the fabricated “benefits” of White Nationalism and racism embodied in “laws” that contravened the very meaning of “with liberty and justice for all” — something to reflect upon this Memorial Day. See https://dankowalski.substack.com/p/true-colors.
Thank you, Dan! In memory of my Gzesh, Wolfson, Kronenberg, and Kissilove relatives who were victims of the Holocaust – after their U.S.-based relatives failed to get visas for them.
Heed the lessons of history, enshrine tolerance, honor diversity, and “improve on past performance!”We have a choice as to whether or not to repeat the mistakes of the past — to regress to a darker age or move forward to a brighter future for all!Make the right one!
Immigration law and policy are very complex, and truly boring for everyone except those who have to deal with them. But we live in an instant gratification, fast food culture. Immigration is a Hot Topic, folks want a Solution Now, so journalists naturally write about it…some better than others.
David Leonhardt, a senior writer at the New York Times, is a smart fellow who has won awards. But his “wheelhouse,” as the kids say, is mostly business and economics. I wish he (and/or his editors…where were they?) had consulted a panel of experts before hitting “send” on this piece.
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Now, I’m not an expert, but I did practice immigration law for almost 40 years, and today my social media feeds and email listservs are burning up with negative reactions to Leonhardt’s piece from true immigration experts.
Responding to every one of the problems in the piece would make this post too long, and would put you to sleep rather quickly, so I’ll touch on just a few highlights that really chapped my professional hide.
First, Leonhardt said, “Biden … changed the definition of asylum to include fear of gang violence.” That is simply false. The definition of who qualifies for asylum is based on the “refugee” definition, is fixed by statute, and only Congress can change that. Congress did NOT make any such change, and neither Biden nor any president could. Fear of gang violence as a basis for an asylum claim is a continuing subject of litigation at the Board of Immigration Appeals and in the federal courts, but the statute remains unchanged.
Second, Leonhardt states that Biden could have issued executive orders to mitigate the situation at the border. Oh, but “Yes, federal judges might block some of these policies… .” Maybe because they are illegal orders? No matter, “sending a message” is more important than legality.
Third, on the matter of admission into the U.S. via “parole,” Leonhardt implies that Biden expanded the use of parole beyond its “case-by-case” legal limits. Maybe Leonhardt did not know that “parole was … used to resettle over 360,000 Indochinese refugees between 1975 and mid-1980” and that “[b]etween 1962 and the end of May 1979, over 690,000 Cuban nationals were paroled into the country, “the largest number of refugees from a single nationality ever accepted into the United States.” ” – Amicus brief submitted to the Supreme Court in Clark v. Martinez.
Finally, the overall thrust of Leonhardt’s piece seems to be that the border is a “problem” that can and should be “solved” by some combination of legal and physical deterrents. This is a misperception common to educated elites as well as regular folks, and it is based on an ignorance of the full panoply of historical, economic, geographic and political forces that combine to make true border “control” a fantasy. Go to the border, look at the miles of desert, mountain and river and you will conclude that border walls are nothing more than a contractor’s financial wet dream. Talk to a woman from Central America who has risked everything to come here and you will conclude that no laws, no walls, no “message” would have deterred her.
I usually ignore much of what the MSM publishes about immigration, but the Times and Leonhardt carry a certain weight, so here I am, typing away. You’re welcome.
[The Comments are open, so fire away!]
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***************
Professor Karen Musalo Director, Center for Gender & Refugee Studies, Hastings Law
Here’s the letter that Professor Karen Musalo, Director of the Center for Gender & Refugee Studies at Hastings Law wrote to the NYT:
Before David Leonhardt writes another piece on immigration, he should make sure he has his facts straight. He erroneously claims Biden “changed the definition of asylum to include fear of gang violence.” Biden did no such thing. What his Justice Department did was overturn a Trump-era ruling attempting to foreclose asylum claims by victims of domestic and gang violence, regardless of their legal merits. That decision was widely criticized, including on your pages in an op-ed I co-authored with Jane Fonda. Attorney General Garland rightfully vacated it, leaving the issue to be resolved by regulations [which to date have not been issued].
Leonhardt is incorrect in his assertion that more “aggressive” moves will mitigate challenges at the border, or score points with voters who overwhelmingly opposecruel and exclusionary policies. The Senate bill touted as a step in the right direction would have codified failed policies that only create more chaos.
Executive actions reportedly under consideration would similarly exacerbate operational challenges and inevitably get tied up in litigation.
And yes, Republicans’ sabotage of the bill was “transparently cynical.” Just as cynical, however, was the president’s choice to back anti-immigrant legislation he knew was doomed. In their attempts to out-Trump Trump, the president and his allies have betrayed their values and the voters who put them in office.
Karen Musalo
San Francisco, CA
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Thanks, Dan and Karen! Turning Leonhardt loose on a subject he’s obviously unqualified to write about — “stunning ignorance” in the words of one world-renowned expert — is nothing short of journalistic malpractice on the part of the NYT!
Immigration is a serious topic with life or death implications for migrants and the future of our nation. It deserves serious, informed, professional journalism by experts who are familiar with the plight of forced migrants and the actual legal requirements for asylum and due process as well as the realities of the border and the anti-immigrant absurdities of our dysfunctional Immigration Courts and non-legally-compliant asylum adjudication system.
There are lots of well-qualified folks around who could inform the public. Needless to say Leonhardt is not one of them. Unhappily, few “mainstream media” journalists have the necessary creds. That’s one reason the toxic national debate is so dominated by right wing White Nationalist media spreading lies and myths with little critical pushback from the “MSM.”
Rachel Siegel Economics Reporter Washington Post PHOTO: WashPost
Ironically, the same day’s Washington Post had an article by Rachel Siegel about how robust immigration of all types has saved the U.S. economy and how many economists believe Trump’s mindless, restrictionist, and likely illegal nativist policies could slow growth, devastate the U.S. workforce, and exacerbate inflation! https://www.washingtonpost.com/business/2024/05/20/trump-immigration-undocumented-economy/. At the same time, he would create chaos and waste billions in public funds.
Recently, I publisheda number of articles by experts debunking many of the very anti-immigrant myths that Leonhardt disingenuously repeats or enables:
In one of many bad moments, Leonhardt uncritically “parrots” the oft-debunked fiction that changes in U.S. immigration policies and “deterrents” like walls, detention, and racially-driven cruelty are primary long-term “drivers” of forced human migration. Undoubtedly, in the complex interrelated world of migration, such policies do have some fairly marginal, largely short-term effects, causing changes in migration paths, adjustments in smuggling methods, changes in smuggling fees, more deaths and unreported irregular entries (when enforcement “gimmicks” are irresponsibly expanded), and enough “statistical variance” to allow proponents of these futile policies to falsely claim “victory” before the system reverts to a new “equilibrium.”
But the truth is inescapable, even if inconvenient for Leonhardt and other dilettantes: Human migration is a complex worldwide phenomenon driven by forces beyond the ability of any single nation, even one as powerful and influential as the U.S., to control by harsh deterrence and restriction, no matter how cruel, deadly, and wasteful.See, e.g., https://immigrationcourtside.com/wp-admin/about.php (“Migrants will continue to flee bombs, look for better-paying jobs and accept extraordinary risks as the price of providing a better life for their children. . . .No wall, sheriff or headscarf law would have prevented [forced migrants] from leaving their homes.”).
As cogently stated by Robert McKee Irwin, an immigration scholar at U.C. Davis:
Leonhardt also suggests, quite incorrectly, that Biden’s (limited) attempts to increase pathways for legal immigration and return to the rule of law at the border somehow benefitted and encouraged smugglers and cartels. NOTHING could be more wrong-headed!
It is Trump and his restrictionist allies and enablers who have been a huge boon for human smugglers! As legal pathways are eliminated or unreasonably restricted, the entire “protection” system falls into the hands of smugglers and other trans-border criminal organizations who become “the only game in town” for those seeking protection! Smuggling prices go up and the risks to migrants increase, even as profit margins for the smugglers skyrocket! Equally bad, law enforcement is diverted from real criminals to playing a bogus “numbers game” at the expense of those who seek only to have their life-determining claims heard fairly, timely, and humanely in accordance with the rule of law!
If our country builds a fair, timely, and humane system for considering asylum claims, something that succeeding Administrations have shamefully eschewed, the majority of asylum applicants will use it, which at the same time would allow border law enforcement to focus on real security issues rather than contrived ones. Similarly, more realistic and robust paths for legal immigration, both temporary and long term, will reduce the pressure and incentives for irregular migration. These measures would also tap into the truth about migration being ignored by politicos of both parties:
These [restrictionist] political reactions fail to grapple with a hard truth: in the long run, new migration is nearly always a boon to host countries. In acting as entrepreneurs and innovators, and by providing inexpensive labor, immigrants overwhelmingly repay in long-term economic contributions what they use in short-term social services, studies show. But to maximize that future good, governments must act -rationally to establish humane policies and adequately fund an immigration system equipped to handle an influx of newcomers.
Notably, the Biden parole program criticized by Leonhardt not only has been upheld in Federal Court, but has generally been praised and recognized by experts as a great, largely under appreciated, success in both creating an orderly process and reducing border pressures while benefitting American families and fueling our economy. See, e.g., https://www.fwd.us/news/chnv-parole/. (I’ll admit to not initially being a “fan,” but hey, results matter so I’ve come around). The most legitimate criticism is that it has been too limited both in terms of numbers and nationality restrictions!
Bad journalism promoting myths like those spouted by Leonhard misleads the public and enables politicos to get away with policies that are not only illegal, but often harm and even kill the very vulnerable migrants we are supposed to be protecting, or at the very least treating with fairness, respect, and human dignity. America and the migrants who still (against the odds) see us as a beacon of hope in a cruel world deserve better from the NYT!
Judge Lister also has a plan to donate patented “healthy, sustainable textile technology” developed during the pandemic that could be used to create good jobs in Mexico and other countries beyond our borders.
Professor Michele Pistone at Villanova Law has developed a “scalable” online training course (“VIISTA Villanova”) that is currently being used to graduate more highly-qualified non-lawyer “Accredited Representatives” to close the burgeoning and critical representation gap in Immigration Court, thus “delivering due process with efficiency.” She believes that with more funding, this program could be “ramped up” to produce 10,000 new Accredited Representatives annually! See, e.g., https://www1.villanova.edu/university/professional-studies/academics/professional-education/viista.html.
With so many brilliant, informed, and involved experts out here, with creative positive ideas for improving immigrant justice and restoring the rule of law, it is very disappointing that the NYT and Leonhardt have chosen to uncritically recycle and repeat cruel, failed, legally problematic proposals by irresponsible politicos that would make things worse. Rather, the media should be consulting the experts actually involved in immigration at the “grass roots level” and pressing politicos on both sides of the aisle and the Administration as to why they aren’t concentrating and investing in humane potential solutions rather than deadly and discredited “deterrence through cruelty!”
As Erica Bryant of the Vera Institute of Justice, someone who, unlike Leonhardt, is actually qualified to write about migration, stated in an article I recently republished:
This November, and beyond, voters need to reject lies that demonize immigrants and demand policies that treat each person with dignity and fairness, no matter where they were born.
Obviously, neither Leonhardt nor the NYT editors got the message. They should!
Thanks again, Dan and Karen, for being the first to speak out and challenge Leonhardt’s dangerous, misleading, and highly irresponsible nativist nonsense!
🚩 Federal court knocks down key part of Florida’s anti-immigrant law temporarily – a massive win for immigrants’ rights against anti-immigrant state laws!
Today, the U.S. District Court for the Southern District of Florida granted a preliminary injunction in a lawsuit challenging the main provision of Florida’s anti-immigrant law SB1718. This means this part of the law is temporarily stopped while the full case continues to get litigated.
Spearheaded by anti-immigrant Governor Ron DeSantis, SB1718 has attacked immigrants in Florida in a multitude of ways, including the provision at issue in this lawsuit, which made it a crime to transport anyone into Florida who had not been “inspected” by the US government.
This had the effect of the state of Florida, through state criminal law, unlawfully enforcing federal immigration law, which hundreds of years of case law makes clear is a matter reserved for the federal government. The district court judge agreed (finding the Plaintiffs are likely to succeed on the merits of their conflict- and field-preemption claims).
Congratulations to the ACLU, SPLC, AIC, and AIJ who have led litigation on this case as well as my colleagues Immigration Impact Lab Senior Attorneys F. Evan Benz and Daniel J. Melo and AILA’s amicus committee for writing an excellent amicus brief in support of the lawsuit.
What can you do?
1. Spread the word. Help educate others about the importance of fighting for immigrants’ rights.
2. Celebrate. As we see more and more states seek to pass anti-immigrant laws at the state level following Florida and Texas’ lead, this decision is a milestone moment in advocates’ efforts to fight back. 🎉
Thanks, Adina, and way to go NDPA Team! The case is Farmworker Association of Florida v. Moody, No. 23-cv-22655 (Southern District of Florida, May 22, 2024). Expect Florida to appeal to the 11th Circuit, so, unfortunately, this isn’t the end of the matter.
Here’s a link to the decision by U.S. District Judge Roy K. Altman (Trump appointee):
Even as the national (non) debate on immigration deteriorates into lies, myths, and hate, there are still victories to be won by great, motivated lawyers dedicated to defending individual rights and the rule of law against political scofflaws like DeSantis and his nativist ilk!
As critical elections approach, voters are being bombarded with harmful myths, misrepresentations, and outright lies about people who are immigrants. More than 45 million people living in the United States were born elsewhere. Despite their proven contributions to communities nationwide, people seeking office call them “invaders” and make campaign promises for the “largest domestic deportation operation in history.” Inflammatory talking points about “border security” and the “migrant crisis” come from candidates across the political spectrum.
What is missing from this rhetoric is simple: the truth. The United States has failed to align its immigration laws and practices with 21st-century realities, leaving a system that is cruel, dysfunctional, and widely criticized. Bringing the country’s approach to immigration in line with the needs of the moment and building an immigration system that is both functional and humane will require serious effort. False information distracts from the solutions that we know work.
Here’s the truth.
It is perfectly legal to request asylum. People who come to the United States border to ask for help are not breaking the law.
Asylum is a form of protection that allows people to remain in the United States and avoid deportation back to a country where they fear persecution or harm because of their identity, religion, or political beliefs. Under both U.S. and international law, people who face danger in their homelands have the right to go to other nations to seek safety and to have their requests for asylum considered.
Asking for asylum is not a “free ticket” into the United States.
Applying for asylum is a long and complex process. Asylum cases completed in fiscal year 2019 or later took an average of 5.2 years to resolve, according to unpublished analysis of government data conducted by Vera. Currently-pending removal cases have been on the docket for an average of 1.9 years. Dangerous conditions around the world have forced record numbers of people to flee their homes and seek safety. This increase in need, exacerbated by a decades-long lack of investment in infrastructure and capacity to humanely process asylum claims, has created an enormous backlog in processing requests. Vera’s unpublished analysis of government data showed that, as of January 31, 2024, there were 3,353,199 cases pending removal proceedings in the United States.
Undocumented people have far lower crime rates than U.S. citizens.
Political candidates often falsely link undocumented people to crime in the United States. Yet an extensive study of crimes in all 50 states and Washington, DC, from 1990 to 2014, found that undocumented immigration does not increase violent crime. A study of arrests in Texas found that, relative to undocumented people, U.S.-born citizens are more than twice as likely to be arrested for violent crimes, 2.5 times more likely to be arrested for drug crimes, and more than four times more likely to be arrested for property crimes. Another study in Texas found that the criminal conviction rate for undocumented immigrants was 45 percent below that of native-born Texans. Immigrants of any legal status are typically found to be less involved in violence than native-born Americans.
Undocumented people pay taxes and help prop up social security by paying into the system—without receiving benefits.
Undocumented people pay an estimated $31 billion dollars in federal, state, and local taxes each year, including billions of dollars into a social security system from which they can draw very few, if any, benefits. The Social Security Administration (SSA) itself estimated that it collected $13 billion in payroll taxes in 2010 from workers without documentation, while only disbursing about $1 billion in payment attributable to unauthorized work. In a 2013 report, SSA estimated that “earnings by unauthorized immigrants result in a net positive effect on Social Security financial status generally. . . . We estimate that future years will experience a continuation of this positive impact on the trust funds.”
Virtually no fentanyl has been seized from people seeking asylum.
Fentanyl overdoses are increasing in the United States, and real solutions will require investments in treatment and preventative health care infrastructure. Instead, far too many politicians seek cheap political points by falsely blaming people seeking asylum at the southern border for this serious problem. In fact, virtually no fentanyl has been seized from people seeking asylum. In 2023, 93 percent of fentanyl seizures occurred at official border crossings or legal checkpoints. Nearly all of these seizures involved people permitted to cross the border, and more than 70 percent were U.S. citizens.
People with pending immigration cases show up to their court hearings.
Evidence clearly shows that, over the past two decades, most immigrants have shown up for the immigration court hearings that determine whether they have legal standing to remain in the United States. They do not slip into the country and disappear, as some political leaders claim. In fact, those who attend immigration court outside detention, on what are known as “non-detained” dockets, almost always continue to appear for their hearings when they are able to secure legal representation. There is no need to confine people in costly and inhumane immigration prisons.
Not all people at risk of deportation cross the border without documentation. Visa holders, long-term permanent residents, and even U.S. citizens are at risk.
While the spotlight often shines on people who cross the southern border without documentation, there are many ways that people can face the threat of deportation in the United States. Indeed, there are 22 million people in the United States who are at risk of being separated from their families and sent to countries where they may face danger. Tens of thousands of children who were adopted from outside the United States, for example, do not have documentation and are vulnerable to deportation because their complex citizenship paperwork was improperly filed. Additionally, more than one million people were brought to the United States as children by parents who entered the country without documentation or overstayed their visas. And, in 2022, more than 850,000 people from countries around the world overstayed their visas, making their continued presence in the United States unauthorized. Lawful permanent residents, current visa holders, and even U.S. citizens have been subjected to the risk of deportation and forced to defend their right to remain home with their families and in their communities.
Many people at risk of deportation actually have a legal right to remain in the United States—but are deported anyway.
Unlike in criminal court, people facing deportation in immigration court are not entitled to an attorney if they cannot afford one. Immigration attorneys can cost thousands of dollars, making them unaffordable for many. As a result, people seeking asylum, longtime legal residents, parents of U.S. citizens, and even small children are forced to appear in immigration court without an attorney to protect their rights. This makes it much more likely that they will be deported, even if they could have established a legal right to stay in the United States. The Fairness to Freedom Act, which was introduced in Congress last year and would establish a right to federally funded attorneys for all people facing deportation, would help fix this injustice.
Immigrants participate in the labor force and start businesses at higher rates than the native-born population.
One in six people in the United States workforce are immigrants. In fact, immigrants participate in the labor force at a higher rate than the U.S.-born population. Immigrants are also more likely to start businesses than native-born U.S. citizens. Furthermore, millions of people in the United States are employed by immigrant-founded and immigrant-owned companies.
People in the United States view immigration as a positive that benefits the country, and they support protections for people fleeing danger.
The majority of the public believes that immigration brings benefits to the United States, including economic growth and enriching culture and values. Nearly three-quarters of people polled said that people immigrate to the United States for jobs and to improve their lives, and more than half say that the ability to immigrate is a “human right.” Multiple polls show that the majority of people in the United States support protections for people who are trying to escape persecution and torture in their homelands. According to one Pew Research Center poll, 72 percent believe that accepting civilians trying to escape war and violence should be an important goal of U.S. immigration policy.
The United States has much work ahead to reform its dysfunctional and often cruel immigration system. This November, and beyond, voters need to reject lies that demonize immigrants and demand policies that treat each person with dignity and fairness, no matter where they were born.
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Erica’s “spot on” last sentence is certainly worth repeating:
This November, and beyond, voters need to reject lies that demonize immigrants and demand policies that treat each person with dignity and fairness, no matter where they were born.
While migrants might be the “easy target” of politicos and nativists, because they are vulnerable and “the usual scapegoats” for problems created or fostered by those very politicos and nativists themselves, in the end we ALL are the targets of those who want to inflict gratuitous cruelty while destroying our precious democracy.
As Dr. Martin Luther King, Jr., said “Injustice anywhere is a threat to justice everywhere.” Each of us has a vested interest in “not looking the other way” while our fellow humans unfairly are stripped of their rights and humanity with “harmful myths, misrepresentations, and outright lies.” YOU could be “next on the list!”
Austin Kocher, Ph.D. Research Assistant Professor TRAC-Syracuse PHOTO: Syracuse U.
From Professor Austin Kocher @ Linkedin:
New Report! “Two-Thirds of Court Asylum Applicants Found Legally Entitled to Remain.”
Out of 1M+ asylum cases decided by immigration judges over the past decade, 685,956 (66%) were legally entitled to remain in the United States due to asylum or other relief.
Remember, this is in a system that has, over decades, been intentionally rigged, manipulated, and skewed AGAINST legal asylum seekers, particularly those of color from certain arbitrarily “disfavored” countries! (Think Haiti, The Northern Triangle, and many African Nations). While this anti-asylum bias has “peaked” in GOP Administrations, Dems have also been guilty including the Biden Administration’s flailing, legally problematic efforts to abuse the asylum adjudication system as a “deterrent” to those legally seeking asylum!
The U.S. Asylum system over the past two decades has prided itself in making the experience of asylum seekers as restrictive, difficult, complex, arcane, arbitrary, and “user unfriendly” as possible for many of the most vulnerable. Even so, courageous asylum seekers who can actually get a decision persevere and succeed against the odds! What if Administrations of both parties worked to make the system fair and timely, rather than trying to use it as a false “deterrent?” Woman Being “Tried By Ordeal” 17th Century Woodcut Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160
Austin’s post triggered this exchange between Beckie “Deportation Defender” Moriello and me on LinkedIn:
BECKIE: It’s really higher than that, once we factor in all the wrongfully denied cases for clients who can’t afford to appeal.
PWS: Thanks for speaking truth, Beckie! If true asylum experts were on the BIA, IJs were experts who applied or were held by the BIA to the Cardoza, Mogharrabi, Kasinga, 8 CFR 208.13 framework, the asylum adjudication system had dynamic leadership, and individuals were competently represented, many more cases would be granted much more efficiently and backlogs would eventually come under control and start to diminish. In fact, individuals should be considered eligible for asylum even where persecution on a protected ground is “significantly less than probable” — the 10% rule! Moreover, asylum seekers who testify credibly are supposed to be given “the benefit of the doubt.” These and the presumption of future persecution established by past persecution, thereby shifting the burden to DHS, are still too often ignored, misapplied, or manipulated against asylum seekers. There is nothing that will make a backlog at least a decade in the making disappear overnight. But, a legitimate, legally compliant, properly generous asylum adjudication system would benefit all involved. It’s sad that Biden, Harris, Garland, and Mayorkas are afraid to comply with the rule of law for asylum seekers and other migrants!
