"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.
“Much of this uncertainty springs from the fact that Trump has never publicly spoken on school lunches or nutrition policy, though plenty of lobbyists and administration officials are scrutinizing the tea leaves behind closed doors. They note that Trump’s agricultural advisory committee includes Aderholt and Texas Agriculture Commissioner Sid Miller, who reintroduced deep-fryers to that state’s schools.”
Stay tuned.
PWS
12/27/16
“Much of what schools want to convey is that students are not in peril when they are on campus.
Student absences do not appear to have spiked in recent weeks, but Nora Morales, diversity officer in the Prince George’s school system, said the district wants to make sure that families understand educators do not ask about immigration status and would not share such information if they knew it.
‘My primary concern is that our school community knows our schools are safe spaces and that students will be valued, respected and welcomed,’ she said. ‘There are a lot of unanswered questions about immigration reform. One thing remains constant: If kids don’t show up to school, they won’t learn.'”
As a Judge, my advice to youth coming before me was: “Go to school, study hard, get all the education that you possibly can. However your case comes out, your education belongs to you. Nobody can take it away from you, and it will make your life better.” I usually asked them about their grades, as well as their extracurricular activities. If there were any below “B,” I made them promise to improve. Most of them brought their report cards showing improvement to the next hearing. I also told them they needed to help their parents around the house.
Many of them had parents working two jobs. The older kids were basically in charge of the household, in addition to going to school, and often playing soccer, playing in the band, or being in the science club. Remarkable young people.
PWS
12/27/16
They doubt that he will carry out his harshest pronouncements on immigration.
“Massey Villarreal, a Republican businessman in Houston who denounced Trump’s Phoenix speech, told HuffPost he’s optimistic about the president-elect because it’s in everyone’s best interest if he succeeds.
‘It’s like getting on an airplane [where] I don’t like the pilot and hope he crashes,’ he said. ‘I’m on the plane too.'”
PWS
12/26/16
Here’s an account by freelance reporter Gohar Chichian, an Armenian American, of growing up in America with undocumented parents. Eventually, her parents were able to obtain legal status.
The U.S. Supreme Court agrees with her that American politicians have a responsibility (often ignored) to represent the interests of everyone, including immigrants both legal and undocumented. In the 2016 case Evenwel v. Abbott (link below), the majority opinion by Justice Ginsburg said:
“As the Framers of the Constitution and the Fourteenth Amendment comprehended, representatives serve all residents, not just those eligible or registered to vote. Nonvoters have an important stake in many policy debates—children, their parents, even their grandparents, for example, have a stake in a strong public-education system—and in receiving constituent services, such as help navigating public-benefits bureaucracies. By ensuring that each representative is subject to requests and suggestions from the same number of constituents, total-population apportionment promotes equitable and effective representation.”
Here’s an excerpt from Chichian’s article in Huffpost:
“Our battle was finally over. But the war over immigration will continue with the start of the Trump administration. As Trump’s policies begin to unfold, politicians in Washington should remember that the immigration debate isn’t just about a few particular groups. The rhetoric of Donald Trump over the past year may have focused on Mexicans and Muslims, but my parents are Christian, and they are from a country that was devastated by a totalitarian left-wing ideology. Their story makes clear just how broad an impact the immigration decisions made in Washington will have on diverse communities nationwide. We are a nation built by immigrants — our politicians should work to represent them. All of them.”
The link to the full article is at the top.
Click to access 14-940_ed9g.pdf
PWS
12/26/16
According to this article from today’s Washington Post, the incoming Trump Administration is preparing to fill more than 100 lifetime Federal Judicial appointments in addition to an existing vacancy on the Supreme Court. That’s almost twice the number of vacancies that were available to the incoming Obama Administration eight years ago. The article points out that since these appointments require Senate confirmation, Democrats might have some bargaining power. But, with Republicans in the majority, that’s likely to be quite limited.
However, there might be an even bigger opportunity available for the incoming Administration — reshaping the U.S. Immigration Court System for many years to come. Plagued by a self-created ponderously glacial selection and hiring process, and a badly outdated and ineffective court structure and administration, the Obama Administration is on track to leave nearly 100 out of the just under 400 authorized U.S. Immigration positions “on the table.” Additionally, there currently are two vacancies on the critically important Immigration Appeals Court (known as the “Board of Immigration Appeals”), which is effectively the “Supreme Court” of immigration law, with authority to decide tens of thousands of appeals annually and to set binding precedents for our nation’s more than 50 U.S. Immigration Courts. Beyond that, a significant number of the most experienced Immigration Judges are “baby boomers” who are currently eligible to retire or will become eligible shortly. For most of the Obama Administration, Immigration Judge hiring has barely exceeded the retirement replacement rate.
The bulk of the currently unfilled vacancies were relatively recently authorized by a bipartisan Congressional effort. But, not so recently that they could not have been filled by a management process that treated them as what they are — probably the most important large group of senior career Civil Service positions in Government and certainly within the U.S. Department of Justice, the repository for the Immigration Courts. Beyond helping to authorize the additional positions, however, Congressional Democrats have paid scant attention to the public unraveling of our Immigration Court system during the past eight years.
With over 500,000 pending cases, the Immigration Court System actually has a larger caseload that the entire U.S. District Court System — Civil and Criminal Dockets — with only about 60% of the authorized number of judges. Moreover, unlike U.S. District Court Judges, who are appointed by the President for life with Senate confirmation required, U.S. Immigration Judges are civil servants appointed by the Attorney General, and they serve at his or her pleasure. Consequently, Democrats cannot point the collective finger at Republicans for the high vacancy rate and the dismal state of justice in our largely dysfunctional Immigration Court System. Republicans generally have supported more resources for the overburdened Immigration Courts, and the hiring process has been within the sole control of the Obama Administration’s Department of Justice.
Assuming confirmation, new Attorney General Jeff Sessions potentially could select approximately 25% of the Immigration Judiciary, with more down the road. No Senate confirmation is required, and the new Attorney General would not be bound to follow the current hiring practices.
Because Due Process — the Immigration Courts’ one and only mission — should be a nonpartisan, nonpolitical issue, I hope that Attorney General Sessions will establish an efficient, strictly merit based hiring system that will be transparent and provide opportunity for meaningful input and participation from all segments of the immigration community, including practitioners, clinicians, and non-governmental organizations, as well as government entities involved in the administration of our immigration laws. For example, the board-based merit selection processes used for U.S. Magistrate Judges and U.S. Bankruptcy Judges have won widespread acclaim for putting professional qualifications and demonstrated excellence before partisanship.
But, if that doesn’t happen, and Democrats don’t like the results, they will have only themselves to blame for failing to pay attention and make the needed administrative and structural improvements to our critically important Immigration Court System over the past eight years.
PWS
12/26/16
If confirmed as AG (and I saw nothing in this article to suggest that he won’t be) Senator Sessions would be in charge of the United States Immigration Court System (including the Appellate Court, a/k/a the Board of Immigration Appeals), one of the largest, if not the largest — more pending cases than the entire U.S. District Court System — and most important Federal Court Systems.
PWS
12/25/16
http://www.wsj.com/articles/central-americans-surge-at-border-before-trump-takes-over-1482489047
This article from the Wall Street Journal suggests that the election of Donald Trump is helping fuel a new “border surge” of migrants anxious to get here before the “border closes.” While I’m sure that Trump’s election has had some effect “in the margins,” particularly as a marketing tool for human smugglers, I tend to doubt that the election has had a major impact. It’s fairly normal for law enforcement and policy officials to overestimate the effect of government policies and under-weigh the root causes of most human migration — conditions in foreign nations that are largely beyond our national control.
Take, for example, the Mariel Cuban Boatlift. While many attributed the cause to President Jimmy Carter’s famous (or infamous) “welcome them with open arms statement,” what actually fueled the migration was Fidel Castro’s unileateral decision to open the Cuban port of Mariel to northbound boats. I was working at the “Legacy INS” at that time. We seized boats (enough to start dozens of marinas), fined owners and operators, opened detention camps for new arrivals, recruited “Temporary Immigration Judges” to handle increased deportations and asylum claims, and instituted criminal prosecutions. But, the flow went on, largely unabated, until Castro decided to close the port of Mariel.
“‘It’s a humanitarian crisis, a drug crisis, a security crisis. We’re going to have to deal with that issue immediately,’ said a member of Mr. Trump’s transition team.” I think that’s correct — migration and border enforcement are complex issues usually with a large humanitarian component. Such problems are unlikely to be solved by building more walls and fences, installing more sensors, hiring more Border Patrol agents, or opening new detention centers.
PWS
12/25/16
In this op-ed, conservative pundit George Will rips AG Designate Senator Jeff Sessions for his views on civil forfeiture proceedings. Interestingly, immigration, on which Senator Sessions also has expressed strong opinions, like civil forfeiture is a nominally civil proceeding with quasi-criminal features and sanctions which in many cases exceed those which could be imposed in a criminal prosecution.
Here’s the key portion of Will’s broadside at Sessions:
“There might somewhere be a second prominent American who endorses today’s civil forfeiture practices, but one such person is “very unhappy” with criticisms of it. At a 2015 Senate Judiciary Committee hearing on forfeiture abuses, one senator said “taking and seizing and forfeiting, through a government judicial process, illegal gains from criminal enterprises is not wrong,” and neither is law enforcement enriching itself from this. In the manner of the man for whom he soon will work, this senator asserted an unverifiable number: “95 percent” of forfeitures involve people who have “done nothing in their lives but sell dope.” This senator said it should not be more difficult for “government to take money from a drug dealer than it is for a businessperson to defend themselves in a lawsuit.” In seizing property suspected of involvement in a crime, government “should not have a burden of proof higher than in a normal civil case.”
IJ’s Robert Everett Johnson notes that this senator missed a few salient points: In civil forfeiture there usually is no proper “judicial process.” There is no way of knowing how many forfeitures involve criminals because the government takes property without even charging anyone with a crime. The government’s vast prosecutorial resources are one reason it properly bears the burden of proving criminal culpability “beyond a reasonable doubt.” A sued businessperson does not have assets taken until he or she has lost in a trial, whereas civil forfeiture takes property without a trial and the property owner must wage a protracted, complex and expensive fight to get it returned. The Senate Judiciary Committee might want to discuss all this when considering the nominee to be the next attorney general, Alabama Sen. Jeff Sessions.”
Merry Christmas (to some) and Happy Holidays (to all).
PWS
12/24/16
This article from today’s Washington Post confirms what many of us already knew – there is no “immigration crisis” in America. Rather, our aging population is stable, and immigration (despite a modest uptick since the recession) remains within historic norms. This ties in with respected demographer Robert Warren’s research and conclusion that notwithstanding the so-called “Border Surge” beginning in 2014, U.S. immigration has remained well within historic norms (link below).
Today’s article also states “the United States will need to invest in immigrants who are helping to shore up the younger segment of the labor force.” In other words, we “geezers” are going to need a continuing flow of immigrants to support Social Security and Medicare, as well as to take jobs as nursing assistants, home health care workers, and caretakers for the elderly that few Americans seem to want. When was the last time you heard a high school student say that he or she aspired to a career as a home health care provider – although I see such individuals daily in our neighborhood and know that they are providing essential services to my neighbors in need?
This also fits in with an article in yesterday’s Wall Street Journal pointing out how Latino entrepreneurs and businesspeople – some of them immigrants – have become a key economic force propelling our future greatness as a nation (see below).
Sure, deporting serious criminals from the United States is a worthy goal and one that I have personally participated in to the extent appropriate under law. The current Administration has done as good job of this. Some would say too good a job, and that cases of relatively minor, non-violent offenders with crimes such as petty theft, receiving stolen property, or possession of marijuana or cocaine, should not have been pushed into an already overcrowded Immigration Court System.
But, the foregoing article suggests to me that rather than fixating on how we might get rid of millions of other undocumented migrants who are law abiding contributors to our society, or looking to further restrict legal immigration as some have advocated, we should be modifying our laws to create additional opportunities for legal immigration that would serve our country’s future. Moreover, a larger and more rational legal system, with shorter waiting periods, would encourage individuals to “use the system” rather than attempting to circumvent it.
PWS
12/23/16
http://cmsny.org/warren-immigration-surge-illusory/
http://www.wsj.com/articles/the-latino-drivers-of-economic-growth-1482363118
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http://www.nytimes.com/2016/12/22/opinion/egypts-cruelty-to-christians.html?_r=
http://www.wsj.com/articles/trumps-opportunity-saving-coptic-christians-1482363152
I granted some Coptic Christian cases in Arlington. Very nice people with an interesting and inspiring history. The only problem I ever had was that every Coptic Christian wanted to tell me the complete history of Coptic Christianity — not a good “fit” for a “three hour slot.” I soon went to “proffers” of evidence as the cases were all well-documented and supported by the country background materials on Egypt.
I fully agree with Mr. Tadros that Egypt’s loss is our gain. As he suggests, it would be great if President Trump could help protect and improve the situation of these long-suffering people.
PWS
12/22/16