"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.
Dehydration is a nasty way to die! Théodore Géricault Creative Commons Attribution-Share Alike 2.0 France-003341B – Raft of the Medusa (16237617902).jpg Copy [[File:France-003341B – Raft of the Medusa (16237617902).jpg|France-003341B_-_Raft_of_the_Medusa_ PHOTO: Dennis Jarvis, Halifax Nova ScotiaJasmine Garsd NPR Criminal Justice Reporter PHOTO: Linkedin
In some parts of this new route they are exploring, Arellano and Cordero are already leaving bottles of fresh water in bushy areas, where people may be taking refuge from the sun.
They check to see if anyone drank from them.
Arellano picks up the bottle. “Slashed”, she sighs.
This is where Border Kindness runs into one of the biggest hurdles in drawing a new map: not climate, not geography, but people. Occasionally, when they leave these bottles of water, they return to find them destroyed.
They don’t know who is doing it – but there’s plenty of people out here who disapprove of the work they do.
“If they recognize what the water is for… they’ll slash it. In hopes people die I guess?” Arellano says.
As they move along, Arellano and Cordero find about a dozen destroyed water bottles at various locations. All mangled. They replace them.
Before calling it a day, they drive up to one last spot where a migrant was found dead from dehydration just a few months ago.
In the nearby bushes, there’s the usual: shoes, socks, also, a small child’s pink winter glove, and a tiny winter jacket. It’s baby blue and filled with caked mud. Arellano inspects its tags. “4-T”, she reads out loud. It belonged to a 4-year-old child.
They walk over to check on the water bottle they left here a few days ago, to see if anyone was able to drink.
But it, too, has been slashed open.
******************************
Read and listen to the complete report at the link.
A sad illustration of one of my sayings: “We can diminish ourselves as a nation, but it won’t stop human migration!”
“Fear & Loathing” Inept, disingenuous performances on asylum by the White House, DHS, & DOJ have left the Biden Administration grasping at straws and spreading vile nativist myths about asylum seekers at the border. PHOTO: Creative Commons
Deterrence and increased enforcement have proven to be failed approaches that do not change the multiple factors that force so many people to flee their countries and only result in pushing people into more dangerous routes that allow criminal organizations to thrive, resulting in the smuggling, trafficking, extortion, and kidnapping of migrants and others.
After more than two years of bumbling around, in the process squandering their access to the ideas and problem-solving skills of an un-precedented “brain trust” of immigration experts, the Biden Administration appears to be in “full panic mode” as the inevitable lifting of the Title 42 charade slowly approaches. Notably, a Federal Court ordered the Administration to make good on its (already delayed) promise to end Title 42 back in November 2022. But, the Supremes unethically blocked that order — granting a stay that NO ACTUAL PARTY to the litigation requested, in a simply mind-boggling exercise of politicized, unconstitutional interference with the Executive.
Instead of using the time to 1) work with NGOs, 2) hire and train more expert asylum officers, 3) replace the BIA and anti-asylum Immigration Judges with qualified human rights/due process experts, and 4) drastically ramp up the refugee admission system outside the U.S. (not substituting an inadequate and “jury rigged” numerically limited “parole” program for legal refugee and asylum admissions), the Administration frittered away the opportunity with obstructionist/restrictionist nonsense. Now, they are “running scared” from desperate refugees merely seeking to exercise their legal rights that have been illegally and immorally denied to them for years — by successive Administrations.
Pooja Asnani reports from Sanctuary For Families NY:
Hi all,
I wanted to share a recent asylum grant won by my colleagues, Deirdre Stradone, Amalia Chiapperino, and Kelly Becker-Smith, before IJ McKee at the NYC immigration court.
Client is Honduran Garifuna woman who survived DV and gang violence, and, importantly for the grant of asylum, forced sterilization. Below is a quick summary of the case, and I’m highlighting this asylum grant because our team, specifically Deirdre, has been seeing more and more cases of forced sterilization among Central American women.
Respondent is a forty-five-year-old Honduran Garifuna woman who has been the victim of forced sterilization, severe verbal, physical, and sexual violence, robbery and death threats by gang members, and intentional deprivation of law enforcement assistance and medical attention due to her race and gender. Overwhelming evidence affirms the horrific practice of forced sterilization against Garifuna women, as well as the high levels of domestic and gang violence in Honduras that take place with impunity. The evidence shows that government authorities largely fail to respond to complaints of abuse, or when they do respond, fail to do so effectively.
Deirdre has been collaborating with the Mt. Sinai Human Rights program to study the forced sterilization of Central American women, a topic she had encountered over and over again in her asylum cases, with the researchers agreeing that this particular violation of human rights is likely more common than is being research and reported. Deirdre has found several reports and studies conducted regarding indigenous, mainly Garifuna, women living with HIV who have been victims of this practice. As you all probably know, and stemming from the response to China’s one-child policy, forced sterilization is defined in the Immigration and Nationality Act (“INA”) as “per se persecution on account of political opinion.”
I wanted to share this because we’re realizing that that it may be a more wide-spread practice than we initially thought, and often times, clients don’t even realized they have been sterilized when they come to us. We have been asking specific questions about this in our intakes, and often have been sending our clients to get a medical evaluation to determine whether they have been sterilized. Unfortunately, we have had a several clients discover in the course of our representation that they had been sterilized without their consent, and we believe that many other women may have experienced this without realizing.
While we have worked on several cases with similar facts, but interestingly, this is the first asylum case we have had were the IJ (McKee) granted specifically based on the forced sterilization claim (political opinion), and not on the ARCG DV claim.
Our team at Sanctuary is working to put together a training to help issue-spot, discuss common fact patterns, and how to prepare and brief these cases; stay tuned for more details.
CC’ing the team who worked on this case, including Deirdre, if folks have questions.
Thanks,
Pooja
Deirdre Stradone Attorney Sanctuary for Families NYKelly Becker-Smith Attorney Sanctuary for Families NYAmalia Chiapperino Sanctuary for Families NY
********************
Dan Kowalski reports from LexisNexis Immigration Community:
Christina Brown writes: “I wanted to share the attached decision in case it is helpful to others. IJ Burgie granted the asylum claim of an indigenous Guatemalan applicant finding past persecution based on severe economic deprivation (DHS failed to rebut). She also granted based on a pattern and practice of severe economic persecution of indigenous Guatemalans.”
Many congrats and much appreciation to all involved!
Even as the Biden Administration and GOP nativists push their “big myth” that most seeking asylum at the Southern Border are “mere economic migrants” not “true refugees,” these results from those fortunate enough to have expert lawyers, fair Immigration Judges, and reasonable time to prepare, document, and present continue to show the intellectual and moral bankruptcy of the racially-biased restrictionist claims. Indeed, to get to the “any reason to deny” nonsense, which also is often mis-employed by the BIA, one has to intentionally ignore or misconstrue both the real country conditions in the Northern Triangle and the inclusive “at least one central reason” mixed motive language of the INA.
These are NOT “one offs!”No, they are actually recurring situations! A properly functioning, fair, expert BIA, committed to a correct and generous interpretation of asylum laws, would have incorporated these and other recurring “grant” situations into a series of binding precedents. These, in turn, would allow lawyers, Asylum Officers, IJs, and ACCs to recognize and prioritize these cases for “fast track grants.”
That, in turn, would enable many asylum applicants to be timely admitted in legal asylum status, work authorized, and on the way to green cards and naturalization. Significantly, it would also avoid the largely self-created, self-aggravated, ever-growing EOIR backlogs that seem to “drive” the “haste makes waste,” sloppy, “any reason to deny” decision-making that still exists throughout our broken and biased asylum system.
The REAL problem here its that meritorious cases like or similar to these that require expert recognition, proper preparation and documentation, and officials committed to “protection not rejection,” are likely to be summarily rejected and wrongfully pushed back across the border by the “Biden/Miller Lite” procedures and toxic official attitudes toward asylum now being promoted by both the Administration and the GOP.
It’s disturbingly clear that the needed positive changes in the immigration legal system are NOT “coming from the top” in the Biden Administration. Consequently, in addition to recruiting, training, and mentoring ever more members of the NDPA (including non-attorney accredited representatives), to hold the system accountable, it is ESSENTIAL that we get more NDPA “practical experts” on the Immigration Bench to spread and force due process, fundamental fairness, and best interpretations/practices on a resistant system from the “retail level” — the “grass roots” if you will.
That requires that NDPA experts with the qualifications apply for Immigration Judge vacancies en masse! You can’t be selected if you don’t apply! And, without better Federal Judges at all levels not only will injustice continue to prevail for immigrants, but our entire democracy will be imperiled! Better judges for a better America!
Yes, as I have acknowledged in prior posts, EOIR can be a tough place to work. But, human lives and the future of our democracy depend on our changing the system, from “the bottom up” if that’s the only way. This system is too important, with too much at stake, to be left to the whims and false agendas of tone-deaf politicos and inept, “go along to get along” bureaucrats!
Human Rights First Welcomes Resettlement, Condemns Bars to Asylum Seekers
WASHINGTON – Human Rights First welcomes today’s announcement of the Biden administration’s plans to expand refugee resettlement and family reunification parole in the Americas while reiterating the organization’s call for the administration to abandon its planned asylum ban and the conduct of fast-track credible fear interviews in Border Patrol custody.
“The Biden administration is rightly expanding refugee resettlement from the Americas, an overdue step towards addressing a long-standing gap for people in need of international protection,” said Senior Director of Refugee Protection Eleanor Acer. “This initiative should swiftly bring refugees to safety and not be used to reduce the resettlement of refugees from other regions. The Biden administration should focus on measures like increasing refugee resettlement and regular pathways and abandon its plan to impose an asylum ban that would be a legal, moral, and political mistake.”
In today’s announcement, the Biden administration confirmed its plans to implement its proposed ban on asylum, which would violate U.S. and international refugee law and has sparked widespread opposition from faith leaders, civil rights organizations, unions, and many Members of Congress. People seeking asylum at United States borders will be subjected to fast-track credible fear interviews while in Border Patrol custody and barred under the asylum ban, fueling wrongful deportations to persecution and torture.
“The Biden administration rightly ended and should not resurrect Trump-era policies that conduct credible fear interviews in Border Patrol custody where access to legal counsel is restricted,” Acer said. “This due process disaster, along with the imposition of the planned asylum ban, will be a sham process for deporting refugees who qualify for asylum. Instead of implementing policies that punish people seeking asylum, the United States should lead in upholding refugee protections and human rights.”
Human Rights First and other groups have long urged the U.S. government to step up refugee resettlement from the Americas and offer safe pathways for migration. We recommend the Biden administration focus on transformational steps like increasing refugee resettlement and regular pathways and maximizing asylum capacity at ports of entry rather than pursuing its misguided plan to impose a new bar on asylum.
Today’s announcements are part of the Biden administration’s plans to address regional migration and initiate punitive policies as the use of the Title 42 public health order ends on May 11. Human Rights First has repeatedly documented human rights abuses inflicted by the Title 42 policy, including over 13,000 attacks against migrants and asylum seekers blocked in or expelled to Mexico under Title 42 during the Biden administration. The organization has also repeatedlydetailed the harms and violations of law that would be caused by the Biden administration’s proposed ban on asylum.
To me, the DHS/DOS statement (referenced by HRF) sounds like folks who expect to fail, want to “tamp down” expectations, and intend to blame the victims (asylum seekers and their advocates) and Congress for their (likely) failure.
Almost everybody agrees that reforms in our immigration system are overdue. But, there is no agreement whatsoever in Congress on what those reforms should be, as shown by the absolutely insanely “bonkers” proposal from the House GOP which seeks to make everything infinitely worse!
So, we’re not going to get the needed expansions and simplification of our legal immigration system, including more generous treatment of refugees and asylum seekers, in the foreseeable future. That’s not a surprise! After two plus years in office, the Biden Administration should have foreseen the obvious and come up with ways to make the current law work.
As almost any expert will tell you, our existing legal asylum system can be made to work in a fair, timely, and reasonable manner at the borders. But, that’s not going to happen with the current personal, poor leadership, bad attitudes, lousy precedents, and a badly failed Immigration Court system.
A fair, functional, properly run asylum system, in conjunction with a robust realistic overseas refugee program, will result in more individuals being admitted into the U.S. as legal immigrants through the refugee and asylum processes. That’s how they are supposed to work (but generally have not) as key components of our legal immigration system.
It’s also a fulfillment of our important international obligations that we intentionally took on after our questionable performance on Jews fleeing Europe just prior to, and even during, WWII. While we can absorb, even need, more legal immigrants, Administrations don’t want to admit and deal with the obvious. Forced refugee migrations aren’t going to disappear any time in the foreseeable future, much as politicos of both parties might want them to!
Yes, these are legacies of the Trump Administration, and, to a lesser extent, the Obama Administration. But, one of the reasons why the Biden Administration is in office is to make things work, not just to whine and wring their hands.
Sure, the Trump Administration undermined the rule of law (and, I might add, largely got away with it). But, that’s no excuse for Biden and Harris not to have listened to experts (like, for example, Eleanor Acer), replaced personnel at DHS and DOJ with “practical experts” who can get the job done, and established at least a working operational framework for a successful, orderly, refugee and asylum admission system. Over-relying on coercive and inhumane detention, denial-oriented decision-making, bogus bars to asylum, criminal prosecutions, threats, and a dysfunctional Immigration Court system are NOT that framework.
Of course the Administration’s proposals to increase refugee admissions, reprogram resources, and develop a better resettlement program for refugees and asylees in the U.S. are good ideas. But, they are basically “no brainers” that HRF and other experts urged even before “day one” of this Administration. They should be in place and operating by now! We’ll see how much due process and fairness this Administration can actually deliver, or whether their proposed solutions devolve into yet another “uber-enforcement fueled” fiasco with the most vulnerable humans as the victims!
Excited to announce that I will be part of the Hispanic National Bar Association (HNBA) National Task Force on Hispanic Law Faculty and Deans! I am honored to be included in a group of Latine law professor giants, whom I have long admired. I look forward to continuing working on a personal passion of mine, which is diversifying the legal profession and legal academia. ¡Adelante!
The Hispanic National Bar Association Launches New Task Force on
Law Faculty and Deans
Washington, DC – The Hispanic National Bar Association (HNBA) announces the launch of the first-of-its-kind National Task Force on Hispanic Law Faculty and Deans, aimed at addressing the alarming lack of Hispanic/Latino representation among U.S. law school professors and administrators (including deans), as well as the shortage of professional development resources specifically for Hispanic/Latino professors, deans, and other administrators already in the legal academy.
According to the most recent ABA Profile of the Legal Profession, only 5.8% of lawyers in the U.S. are Hispanic/Latino, even though we constitute over 19% of the general population. The shortage of Hispanic/Latino lawyers across the nation mirrors the paucity of Hispanics in legal academia. Only 9 of the almost 200 deans of ABA-accredited law schools in the 50 states and the District of Columbia are Hispanic/Latino. Estimates have the percentage of full-time Hispanic/Latino law professors at only 5%.
Hispanic/Latino law professors and law school deans are leaders of the profession and play seminal roles in educating future generations of lawyers and law-related professionals. Legal educators are visible role models and mentors to young people aspiring to careers in law. In addition, Hispanic/Latino legal academics – like other legal academics – frequently are tapped for senior government appointments, judgeships, and other key roles in our democracy. The urgency of this initiative is heightened further by the U.S. Supreme Court’s looming affirmative action decision, which threatens to make the shortage of Hispanic/Latino law students, lawyers, and legal academics even worse.
HNBA President Mariana Bravo has appointed as Co-Chairs of the Task Force Raquel M. Matas and Anthony E. Varona. Raquel Matas is the former Associate Dean for Administration at the University of Miami School of Law and has served as HNBA’s National Law School Liaison. Anthony E. Varona is Dean and Professor at Seattle University School of Law, the first law school dean of Hispanic/Latino heritage of any law school in the Pacific Northwest of the United States. Varona was the first Hispanic/Latino dean at University of Miami School of Law, where he was appointed dean emeritus after the conclusion of his deanship.
President Bravo said, “An increase in the number of Hispanic/Latino law professors and law school deans will translate into an increase in law school enrollment by Hispanic and Latino/a students inspired by educators who hail from their same communities, share their backgrounds and struggles, and in many cases, share a bilingual heritage. The work of this Task Force is long overdue, and I am delighted that former Associate Dean Matas and Dean Varona, with many decades of distinguished nationally recognized service in legal education between them, will lead us in this important work.”
The Task Force will oversee the development of annual summer nationwide online workshops for prospective and existing Hispanic/Latino law faculty and law school deanship aspirants, through programs such as the Michael Olivas Summer Writing Institute and the GO LILA summer workshops, collaboration with other established workshops, and by organizing new initiatives to increase Hispanic and Latino/a diversity in the legal academy. The Task Force will plan in-person “how to become a law professor” workshops at the annual HNBA conferences, assist with matching law faculty and law dean aspirants with suitable mentors, support the professional development of and networking opportunities for currently appointed Hispanic/Latino law faculty, promote better data tracking by national accreditation and membership associations, and otherwise promote more Hispanic and Latino/a representation in the legal professoriate and decanal ranks.
In addition to Matas and Varona, the HNBA Task Force on Law Faculty and Deans will include as members nationally renowned legal education leaders, known for their dedication to diversifying the legal profession and the academy, including:
Dolores S. Atencio, Esq., Visiting Scholar, U. of Denver Latinx Center|Sturm College of Law
Steven Bender, Prof. & Assoc. Dean for Planning & Strategic Initiatives, Seattle U. School of Law
Kevin R. Johnson, Dean and Mabie-Apallas Prof. of Public Interest Law & Professor of Chicana/o Studies, UC Davis School of Law
José Roberto (Beto) Juárez, Jr., Dean & Prof., Nova Southeastern U. Broad College of Law
Jenny Martinez, Lang Prof. of Law and Dean, Stanford Law School
Margaret Montoya, Prof. Emerita of Law (and Medicine), U. of New Mexico
Jennifer Rosato Perea, Dean & Prof. of Law, DePaul U. College of Law
Hon. Jenny Rivera, Associate Judge, New York Court of Appeals
Ediberto Román, Prof. of Law, Florida International U. College of Law
Krista Contino Saumby, Esq., Assoc. Director of Career Dev., Elon University School of Law
Paulina Vera, Professorial Lecturer in Law, George Washington U. Law School
This Task Force shall operate as a Presidential Special Committee.
###
The Hispanic National Bar Association is an incorporated, not-for-profit, national membership association that represents the interests of over 78,000+ Hispanic attorneys, judges, law professors, legal assistants, law students, and legal professionals in the United States and its territories. Since 1972, the HNBA has acted as a force for positive change within the legal profession by creating opportunities for Hispanic lawyers and by helping generations of lawyers to succeed.
**********************
Congrats to Paulina, Dean Kevin Johnson, and all the other outstanding scholar/leaders named to this group. Another place where more diversity is long overdue is the Federal Bench. In particular, despite the disparate impact of Immigration Court decisions on Hispanic-American communities, they are underrepresented on the bench at EOIR.
As the awesome talent represented by this Task Force shows, it isn’t for lack of exceptionally well-qualified judicial candidates available in the private sector. It’s a recruiting and cultural problem at DOJ, along with severe credibility problems stemming from perceptions of overall hostility at EOIR to asylum seekers, other migrants, and their lawyers, often directed at Hispanics and other individuals of color. The “culture” at EOIR really can only be changed by getting on the “inside” — that means getting on the bench or into the EOIR supervisory structure.
On a positive note, one of my fellow panelists on that occasion, Hon. Claudia Cubas, is now an Immigration Judge at the Hyattsville (MD) Immigration Court!
I look forward to Paulina and other NDPA superstars 🌟 like her joining Judge Cubas on the bench in the near future. Positive change requires working “at all levels” to pump due process, fundamental fairness, and decisional excellence into a broken justice system.
Under AG Garland, at least some semblance of a “merit-based” selection system, one that honors immigration representation and human rights experience, has taken hold at EOIR. Therefore, Immigration Judge positions are the ideal “entry level” for those seeking careers in the Federal Judiciary.
Also, the “hands on” experience with making difficult decisions at the critical “retail level” of American justice will be an asset in any career path. Every correct decision at EOIR is potentially life-changing and life-saving! There aren’t many other areas where you can say that! These decisions are far, far too important to individuals and to our nation’s future to be left to the “amateur night at the Bijou” aura that unfortunately (tragically) has permeated EOIR in recent years!
Very proud to say that Paulina is a “distinguished alum” of the “Legacy” Arlington Immigration Court Internship Program and a “charter member” of the NDPA! 😎⚖️🗽
AILA is pleased to welcome this blog post from long-time AILA member Careen Shannon, Senior Counsel (formerly Partner) at Fragomen, Del Rey, Bernsen & Loewy, LLP, and the Executive Producer of an important new documentary, “Las Abogadas: Attorneys on the Front Lines of the Migrant Crisis.” AILA members in town for the Spring Conference have a chance to see “Las Abogadas” at the Washington, DC International Film Festival on Wednesday, April 26, at 6:00 p.m., with a second show on Friday, April 28, at 8:30 p.m.
When my friend Rebecca Eichler told me that a documentary filmmaker was making a movie about her experience providing legal advice to members of a Central American migrant caravan as it made its way north through Mexico in 2018, I said, “That’s nice.” Later, when film production stalled due to the COVID-19 pandemic, she sent me a link to a trailer and encouraged me to take a look, and I promised to do so. But I was busy managing my remote work for the Fragomen law firm where I was then a partner, and I put all thoughts of the film aside.
Then one day, I watched the trailer, and I was hooked. Here was a story that needed to be told. It wasn’t just about Rebecca, but about tenacious lawyers – mostly women – who were dedicating their lives to defending the rights of asylum seekers, reuniting migrant families torn apart by the Trump administration’s cruel family separation policy, and fighting to uphold the rule of law at a time when the few existing safeguards for migrants seeking refuge from harm were being systematically dismantled.
I reached out to the film’s Director, Victoria Bruce, who I later learned only reluctantly took my call at Rebecca’s urging, since at that point she had run out of steam – and money – and was not sure she had it in her to complete the film. But we had a great conversation, we fed off of each other’s enthusiasm for the subject matter, and by the end of our talk she had invited me to sign on as the film’s Executive Producer.
Two years into the pandemic, I decided to step down as a partner at Fragomen and dedicate myself to ensuring that this important film got made. Fast forward to today, and Las Abogadas: Attorneys on the Front Lines of the Migrant Crisis is making the rounds of film festivals, winning awards, and garnering critical acclaim. Las Abogadas (which means “the women lawyers” in Spanish) follows a group of women immigration attorneys over a multi-year odyssey as the U.S. government under Trump upends every protection for those fleeing from persecution, violence and war. The film’s narrative continues into the first two years of the Biden administration, where great hope gives way to a despair my fellow AILA members undoubtedly share, that nothing fundamental had changed in U.S. immigration policy.
. . . .
*********************
Read the complete article at the link.
“Nothing fundamentally has changed.” Rather than listening to, recruiting, partnering with, and following the advice of those on the “front lines” of defending individual rights, freedoms, and upholding American democracy, the Biden Administration disastrously turned immigration, human rights, and racial justice policies over to a bunch of “wonks” disconnected from the preventable human tragedies and mocking of the rule of law represented by Trump’s xenophobic, White Nationalist agenda.
Today, President Biden announced his candidacy for re-election in 2024. Part of his slogan is “protecting personal freedoms” from the GOP right-wing authoritarian, police state — bedrooms, bathrooms, classrooms, voting booths, more guns, MAGA-maniacs plan to invade and regulate every aspect of your life. But Biden’s miserable performance on immigrants’ rights and his Administration’s tone-deaf “dissing” of those like the heroes of “Las Abogadas,” suggests he will need more than a slogan to energize a critical, too often ignored,“core component” of the Dem base.
He could start by watching “Las Abogadas” along with VP Harris (who “took on” the “immigration portfolio,” and has been MIA since), his politicos, and his campaign staff and heeding the message. Social justice advocates are understandably skeptical about Biden’s promises. He needs actions that advance due process, the rule of law, and humane, robust, orderly processing of refugees and asylum seekers!
As the Trump debacle demonstrated, when immigrants’ rights disappear, all other individual and personal rights in America are in the far-right’s sights! It doesn’t take much imagination (except, perhaps, for some so-called “centrist” Dems) to see how the onslaught of anti-immigrant myths, rhetoric, and legislation by the GOP right has quickly shifted to hate bills targeting gays, transgender, women, Black History, teachers, voters, election officials, rational gun control, heck, even doctors, nurses, and established medical science!
Careen Shannon Senior Counsel (formerly Partner) Fragomen, Del Rey, Bernsen & Loewy, LLP Executive Producer “Las Abogadas: Attorneys on the Front Lines of the Migrant Crisis.” Photo: Think Immigration
Many congrats to Careen Shannon and everyone else involved in this tremendous project!
Domestic policy adviser Susan Rice is stepping down from her post.
Rice, who served as U.S. ambassador to the United Nations, helped the Biden administration with expanding the Affordable Care Act, getting his Inflation Reduction Act into law, and passing gun control legislation. The move comes as the White House is facing controversy over its handling of migrant children who crossed the Southern border.
“As the only person to serve as both National Security Advisor and Domestic Policy Advisor, Susan’s record of public service makes history,” said President Joe Biden in a statement announcing the departure. “But what sets her apart as a leader and colleague is the seriousness with which she takes her role and the urgency and tenacity she brings, her bias towards action and results, and the integrity, humility and humor with which she does this work.”
Rice’s departure leaves a major hole within the top ranks of the White House right as it gears up for a likely re-election campaign and as it faces a stare down with congressional Republicans over raising the debt limit. Among those being eyed as a replacement for her include Neera Tanden, Biden’s staff secretary and a senior adviser, four people with knowledge of the deliberations told POLITICO. Separately, a top White House official said no replacement had been identified yet.
One former administration official said White House aides were talking openly about Tanden’s consideration for Rice’s job over the weekend, calling her potential appointment “pretty damn firm.”
. . . .
*****************
Read the full article at the link.
Say what you will, Rice never got a handle on the need to restore the rule of law for asylum seekers at the border. Nor did she ever “get” the simple fact that you can’t solve a humanitarian situation through law enforcement focused largely on deterrence and punishment.
Although reviled by the GOP, Rice appeared to uncritically adopt many of Stephen Miller’s most xenophobic border myths and showed little interest in listening to experts who actually are working with asylum seekers and kids at the border.
In theory, Neera Tanden, whose nomination to be OMB Director was “torpedoed” by the GOP and Sen. Joe Manchin, could be better for human rights. But, 1) she doesn’t actually have the job yet; and 2) we’ve been here before with folks who look good from a distance but can’t perform in practice.
Among the apparent reasons for Tanden’s OMB rejection was that she had sent nasty e-mails and tweets about some Senators.
That was a case of the GOP having mass amnesia about the intemperate statements, personal insults, and incoherent rage that were a staple of their former election-denying President whom most blindly supported, and continue to cover for, through all transgressions against decorum and the law.
I suspect that most due process and human rights advocates aren’t shedding any tears about Rice’s impending departure. We’ll see what happens next.
The second Latina to be confirmed to the Northern District of California bench and one of the few immigrant rights attorneys to become a federal judge will be a thoughtful, compassionate jurist who understands firsthand how the law impacts real people, lawyers who know her say.
U.S. District Judge Araceli Martínez-Olguín was confirmed by the U.S. Senate in a 48-48 vote in February, with Vice President Kamala Harris casting the tie-breaking vote in her favor. Her confirmation makes Judge Martínez-Olguín just the second Latina to serve in the Northern District of California, according to the White House’s July announcement of her nomination.
It also makes Judge Martínez-Olguín the rare federal judge who has spent most of her career helping protect immigrants’ rights.
“It’s a slightly different path than we’re used to seeing in folks appointed to the bench, which I think is great,” said attorney Nora Preciado, who worked with Judge Martínez-Olguín at the National Immigration Law Center.
That background gives Judge Martínez-Olguín a unique understanding of the law, particularly when it comes to constitutional issues, which she often dealt with in her immigrant rights work, Preciado added.
But it will also make her more compassionate as a judge, according to those who know her.
“Immigration is a complex field that requires a lot of legal knowledge, but also requires compassion and empathy,” said Brian Amaya, current president of the East Bay La Raza Lawyers Association.
“The ability for a person to stay in this country with their family in order to avoid persecution, famine, war or political instability can be the most important legal decision or conclusion our legal system can make,” Amaya told Law360 Pulse. “It is important that members of our bench are individuals that can apply the law to real-life situations involving real-life people, in ways that are both lawful but full of compassion.”
While at NILC, Judge Martínez-Olguín spearheaded the organization’s work involving the Deferred Action for Childhood Arrivals program, including representing a class of DACA recipients who challenged the U.S. Department of Homeland Security‘s efforts to curtail that program, according to a questionnaire she submitted to the Senate Judiciary Committee.
She contributed to merits and post-argument briefing when that case was consolidated with parallel challenges before the U.S. Supreme Court, she told the Senate.
Judge Martínez-Olguín also served as lead counsel in a Tennessee civil rights class action brought by Latino workers who alleged that their arrests during a worksite immigration raid lacked probable cause and were discriminatory.
Those cases and others showed the judge to be a very calm, steady and methodical litigator, according to Preciado, who worked with her on the Tennessee case.
“Areceli has always been somebody who’s very thoughtful, thorough, methodical in her legal thinking,” Preciado said. “She’s somebody who always wants to really dig deep into issues. She has a very steady approach and temperament to practicing law.”
“As an attorney, Judge Martínez-Olguín was known as a quick learner and could handle any type of legal issue,” echoed Ray Manzo, president of the San Francisco La Raza Lawyers Association.
She also loved to discuss those issues with her teammates, Preciado added.
Amaya added, “Just from talking to her, you could tell she was a brilliant legal mind. It was often my pleasure to just talk law with her. I believe that this was her most impressive quality — her vast understanding of the law and her ability to critically think about it and discuss it in a straightforward manner.”
Prior to her work at NILC, Judge Martínez-Olguín established and ran the Immigrants’ Rights Project at Community Legal Services in East Palo Alto, California, where she conducted policy advocacy, took on impact litigation and counseled local community groups, according to her Senate questionnaire.
“She certainly jumped into a lot of issues,” the organization’s executive director Katrina Logan said. The judge was “always looking for opportunities to use the law to promote and support our clients and the issues that impact them,” Logan said.
She also developed the organization’s emergency plan to deal with potential U.S. Immigration and Customs Enforcement detention of the group’s clients or possible ICE appearances at the organization’s offices, according to Logan.
“She was super-resourceful,” Logan added. “It was really great working with her, and I think she added a lot to our organization.”
Judge Martínez-Olguín also spent time in the ACLU‘s Women’s Rights Project and Immigrants’ Rights Project, litigating human trafficking claims involving the Foreign Sovereign Immunities Act and educating female farmworkers about how to protect their rights when faced with sex discrimination on the job, she told the Judiciary Committee.
She worked on the team that challenged the constitutionality of Arizona’s policy of denying driver’s licenses to DACA recipients under the supremacy and equal protection clauses, according to her Senate questionnaire. And she was part of a group of advocates who provided expertise about crafting the 2008 reauthorization of the Trafficking Victims Protection Act to better protect foreign workers.
Judge Martínez-Olguín has also worked at Legal Aid at Work as a staff attorney in its National Origin, Immigration and Language Rights Program, and in the U.S. Department of Education‘s Office for Civil Rights, where she investigated complaints against school districts and universities, according to her Senate questionnaire.
That background dealing with immigrants’ rights issues means the new jurist is steeped in constitutional issues such as due process, equal protection and freedom of speech, Preciado pointed out.
“It’s a great addition to the court because she’s somebody who has had to grapple very deeply with constitutional issues throughout her career, and I think few lawyers have that kind of experience under their belt,” Preciado said.
But more than her legal knowledge and acumen, what stands out to most of the attorneys who know her is how compassionate and caring she is, especially when it comes to her clients, they said.
“She was somebody who approached the law and the power of the law from a very human perspective, from a very personal connection with folks who are going through the system,” Preciado said.
This skill was especially apparent when the judge was dealing with the clients she and Preciado represented in the Tennessee case, where it was important for her to connect with those clients after they’d been through a traumatic immigration raid, Preciado said.
“She wasn’t showing up as just a brilliant lawyer, but also a human being and somebody who understood what people had gone through and wanted to be there to support in any way possible,” Preciado said. “That’s something that I really admire in her.”
Judge Martínez-Olguín also cares deeply about mentoring young Latina attorneys and working to improve their representation in the legal industry, according to these lawyers.
She has served as president and on the board of the East Bay La Raza Lawyers Association and on the board of the San Francisco La Raza Lawyers Association, according to her Senate questionnaire. Both organizations focus on expanding legal access in the Latinx community and supporting Latinx attorneys.
She “worked tirelessly” to keep the East Bay La Raza Lawyers Association funding scholarships and promoting mentorships for Latinx law school students, according to Amaya. And she made sure the organization’s Judicial Endorsement Committee met with and endorsed candidates for the bench, especially those who would promote the organization’s mission.
“She did a lot to continue our mission statement of growing the Latinx community’s presence in the California bar and bench,” said Amaya.
Judge Martínez-Olguín has even taught Spanish for Lawyers at the University of California, Berkeley School of Law, where she earned her law degree.
That wasn’t her first time in the classroom. Before attending law school, the judge was a bilingual kindergarten teacher in Oakland, California, she told the Senate Judiciary Committee.
After graduating from law school, she clerked for U.S. District Judge David Briones in the Western District of Texas.
All those elements of her background mean Judge Martínez-Olguín will bring a unique and much-needed perspective to the federal bench, according to attorneys.
Her confirmation is “very significant, because it will bring a different viewpoint that is missing on the bench,” Manzo said. “Judges bring their career and personal experiences when making decisions, and having her there with a civil rights/immigration attorney and Latina viewpoint will create a richer discussion and interpretation of the law.”
“She will truly be able to apply sound legal principles to real-life situations that deal with real-life people and have real-life outcomes,” echoed Amaya.
“She will be a wonderful judge,” he added.
–Editing by Nicole Bleier.
******************************
We need MORE NDPA “practical scholars” like Judge Martínez-Olguín — MANY MORE — on the Federal Bench — at ALL levels! The place where the NDPA can make the most immediate positive impact is at EOIR! That’s why I’m urging NDPA members to get those applications in for current Immigration Judge vacancies and all that come up in the future.
We’ve seen in the past few weeks, graphically, how horrible judging from unqualified right wing zealots appointed by Trump can destroy precious individual rights and freedoms in America. NOW is the time to “model” the positive impact that practical scholars committed to due process, immigrants’ rights, and excellence in decision-making can have on American justice — starting at the all-important “retail level!”
The Right to Seek Asylum in El Paso: A Q&A with Marisa Limón Garza, Executive Director of Las Americas
Marisa Limón Garza is executive director of the nonprofit Las Americas Immigrant Advocacy Center in El Paso, Texas. Founded in 1987 to aid refugees from the civil wars in Central America, Las Americas has provided legal representation to thousands of refugees and asylum seekers. Today, the staff of 19 is adapting to the growing, complex needs at the second-busiest port of entry for asylum seekers, after San Diego. Limón Garza, a native El Pasoan, talks about the challenges the organization faces as the United States rejects asylum law. “We’re seeing more expressions of xenophobia towards migrants on both sides of the border,” she said.
Las Americas has been serving migrants and asylum seekers since the 1980s. How has the population you serve changed since then?
The population that we started off serving was mostly Central American people seeking asylum. That population was our main focus. Over time, it’s shifted. For a long time, we’ve had a focus on women who were impacted by domestic violence or gender-based violence. We continue to have a community program specifically for crime victims. And so that has been something that we’ve persisted with. And then now we’re also working with people in the detention center setting. So, it’s evolved over time to meet the needs of immigrants and migrants.
Upgrade to paid
Are you seeing more people than ever? Or the same?
Right now, there are limitations on how many services we can provide, because of the number of attorneys that we have on staff, which is four. Attracting talent at the nonprofit level can be hard. It’s also a challenge in a community like ours that doesn’t have a law school. But we are seeing many people come for services. Especially due to the policies from the Trump administration and now the Biden administration. The need continues to grow. We are contacted by people all the time seeking assistance. And it’s more than we can actually serve.
What are the challenges you’re seeing with the populations you’re helping?
The challenges are related to the ways that the policies are being implemented. The people in our detained program have been focusing on a strategy of getting people out of detention on bond, because they’ll have a much higher chance of getting asylum when they have access to representation outside the detention center setting. But that’s become a lot more challenging in the past three months. There’s been a shift. Judges are not allowing people to be released on bond. And so that’s something that we are monitoring. We’re now taking on more cases for full representation through the asylum process with some people. So that’s a shift for us.
Governor Greg Abbott’s Operation Lone Star was extended to El Paso. How has it affected your community?
Operation Lone Star has been in our community since the city declared an emergency in December. It certainly has changed the dynamic with the more militarized presence and more enforcement. Visually, there’s more razor wire, more physical barriers, more obstacles. And the DPS squad cars everywhere.
Share
Can you talk about the CBP One app? I was in Reynosa, Mexico, recently. There were a lot of complaints about the app from asylum seekers, saying it doesn’t work. What are you experiencing in Ciudad Juárez with CBP One?
Our team has been helping folks get connected to the app and working with the Chihuahua state government in their COESPO office. Through that, we’ve been able to support over 662 people trying to access the app. It is challenging, even with the great Wi-Fi that’s available at COESPO. And it’s certainly been difficult as different versions of the app come out. There’s new glitches or glitches that didn’t happen before. Recently, there was a glitch where people were being notified on their screen that they needed to be north of the center of the country to secure an appointment. And of course, these people were applying from Ciudad Juárez, so it should have automatically included them, but they were being bumped out. Things like that continue to be challenges for people.
Are you having success with the app? Are some people getting through?
A minimal number. It’s not to the extent that we would like, but some people have secured appointments for themselves and their families.
Does frustration with the app lead asylum seekers to gather at ports of entry?
I think it’s the combination of rumors being shared about when people can access the port along with a level of frustration with the app. Combined, it creates a situation where people have this growing frustration, and they’re wanting to move forward but can’t. So it’s certainly part of the dynamic. I wouldn’t say it’s the sole factor. But it certainly contributes to that feeling that people are facing.
. . . .
Have conditions become more precarious for migrants arriving in Ciudad Juárez?
I think this has fomented because so many migrants have been coming towards the ports of entry. And when they go to the ports, some of those ports decide to close. That’s caused more of a challenge between community members and the migrants themselves. We’re seeing more expressions of xenophobia towards migrants on both sides of the border. And so that’s something that may have always existed but wasn’t as spoken out loud. Now it seems to be ratcheting up, although there’s still the presence of people who want to welcome and support migrants.
What future problems or issues do you see coming down the road?
I foresee challenges if we continue with the CBP One app. If that’s the only way people can access protection, then it really limits asylum. We would prefer that people be able to access a port of entry, claim their credible fear, and seek protection. We’re also mindful of the transit ban that is likely to go into place and will cause a lot of difficulty. People are supposed to seek asylum in the first country they cross through before seeking asylum here, but many of those countries have overrun asylum systems already. Adding to that challenge are the geopolitics as many different countries seem to be working with the United States to wall off access. This means that vulnerable people have far fewer places to turn to. The right to seek asylum, even though it is recognized in international law, is not being upheld.
What are solutions that you wish would be enacted right now by the U.S. and Mexican governments to fix things at the border?
We’d like there to be more transparency with border communities, at all levels, to ensure that plans are incorporated into the community, and there’s clear understanding of how they will work. Right now, there’s no clear information on what’s going to happen on May 11 [when Title 42 ends], and it’s less than a month away. We’d also like to see attention to the backlog of asylum claims within the courts, because there are many years that pass before someone can get access. Also reduce the time it takes to get a work permit. Right now, it takes at least six months to a year. That makes it riskier for people who must take more dangerous jobs and do things off the record. It’s important for people to earn a living and support their loved ones in a dignified way.
. . . .
********************
Read the full interview at the link.
Think the Biden Administration is paying attention and has used their 2+ years in office to work with experts to be ready to welcome legal asylum seekers excercising their rights upon the inevitable end of the Title 42 charade?Not a chance!
Department of Homeland Security Secretary Alejandro Mayorkas said Thursday that the Biden administration plans to announce preparations across the U.S.-Mexico border next week in anticipation of an influx of migrants after the White House lifts pandemic-related restrictions on May 11.
Mayorkas declined to provide details about the government’s efforts but said immigration detention facilities would have additional beds available to hold migrants facing possible deportation.
“I think next week we’ll have more to say about our preparation and some of the things we are going to be doing,” Mayorkas told reporters at DHS headquarters in Washington.
. . . .
Since March 2020, DHS has leaned on the Title 42 policy as its primary enforcement tool, expelling more than 2 million migrants back to Mexico or their home countries. But Biden officials face pressure from immigrant advocates and some Democrats calling for an end to the policy they view as a carry-over from the Trump administration’s harsher approach.
DHS officials further blame the Title 42 policy for encouraging repeat illegal crossing attempts because migrants don’t face the threat of federal prosecution and jail time that they would under standard immigration rules. Lifting Title 42, Biden officials say, is key to restoring the legal consequences they need to deter illegal entries.
. . . .
Miller, the acting CBP commissioner, said officials will attempt to tamp down the surge with “enhanced expedited removal” — a fast-track deportation process for those who don’t qualify for humanitarian refuge.
But, he cautioned, “it will take time” for deportations to have a deterrent effect.
Deterrence, deterrence, deterrence = failure, failure, failure! It’s been failing for decades and is guaranteed to do so in the future! Governments can’t deter, detain, and deport their way out of humanitarian situations.
But, the the Biden Administration is happy to waste billions and unnecessarily endanger human lives making the same old mistakes over and over.
Not a mention of what REALLY would work: Honoring our legal obligations and enforcing the law by inviting asylum seekers to apply at ports of entry; making the system efficient and user friendly; providing wide access to representation; and timely and robustly granting asylum to qualified applicants under generous standards enunciated by the Supremes and the BIA decades ago but widely ignored, often mocked, in practice!
If, contrary to the Administration’s predictions of doom, gloom, and “planned failure,” the legal system works at the border, it will be due to folks like Marisa Limón Garza and NGOs forcing the law to work as it should — no thanks to out of touch politicos and bureaucrats in the Biden Administration and to GOP nativists like Abbott.
More than two years have passed since Joe Biden took office on the promise of a more humane approach to immigration and the border. But in many ways, the president has struggled to distinguish himself from his hard-line predecessor: His administration has expanded Title 42, the anti-immigration loophole authorized by Donald Trump; failed to resolve the family separation crisis; and proposed a new spin on Trump’s “transit ban” that would make a large percentage of migrants ineligible for asylum.
What’s more, the Biden administration has also apparently failed to adequately protect thousands of migrant children from labor trafficking inside the US. On Monday, The New York Times reported that the Department of Health and Human Services did not intervene after receiving repeated warnings about underage migrants the agency had sent to sponsors who then forced them to work grueling hours in dangerous conditions. While the department is required by law to vet sponsors to help ensure that children placed in their care will not be trafficked or exploited, those vetting requirements reportedly went by the wayside in 2021 amid a scramble to home those children.
The Times noted that at least five HHS staffers have said they were pushed out of their roles after sounding the alarm about child safety concerns. Jallyn Sualog, a former HHS official tasked with overseeing the agency’s response to unaccompanied migrant children, told the paper that she went to great lengths to warn her superiors that children were being put at risk. “They just didn’t want to hear it,” said Sualog, who said she was moved to a different post in 2021 after filing a complaint with the department’s internal watchdog. (She later accused the department of retaliation before settling with the agency and resigning.)
The paper traced the crisis back to Susan Rice, the president’s domestic-policy adviser. In 2021, as Rice was attempting to move throngs of unaccompanied migrant children from HHS shelters to homes, she and her aides reportedly received a memo detailing accounts of abusive sponsors but did nothing. (White House deputy press secretary Andrew Bates told the Times that Rice “did not see the memo and was not made aware of its contents.”
Since the summer of that year, the number of migrant children being trafficked or exploited has skyrocketed. Monthly calls to the HHS reporting trafficking, neglect, or abuse have more than doubled in the two years since Biden entered office, per the Times.
. . . .
*********************
Read Caleb’s full article at the link.
Two years of ignoring experts, appointing the wrong folks, and NOT FIXING what could and should have been a success in showing how robust, legal, properly generous, refugee and asylum programs, staffed and run by experts, could be a model of good government! Go figure!
The Trumpist GOP “plays” to a right wing extremist base — wedded to un-American and generally unpopular “culture wars” targeting a wide range of groups who basically are America’s future!
By contrast, the Biden Administration “disses, and runs away from” key parts of the Dem Coalition whose humane practical expertise and leadership should be at the core of the message. It’s certainly not that Biden’s misguided “Miller Lite” approach to asylum seekers and children at the border has “peeled off” any Trumpist support or is going to be a “winner” among independent voters!
How bad are the Biden Administration’s proposals? They generated an amazing 51,000+ public comments, the vast majority in opposition, despite a ridiculously short 30-day comment period apparently intended to “squelch” dissent.
Dems need to stop “running scared” on social justice issues and promote American values including the benefits of immigration and the importance of robust, generous, orderly legal asylum and refugee programs!See, e.g., https://www.washingtonpost.com/opinions/2023/04/18/biden-democracy-fight-republican-extremism/ (Perry Bacon, Jr. gets everything right in his critique of Biden’s failure take on GOP extremism, EXCEPT for his glaring omission of immigrants rights as a primary “driver” of social justice in America and vice versa).
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up” — Can new Chief Immigration Judge Sheila McNulty get this poor little fella back on his feet? Only time will tell!
Sources report that A.G. Merrick Garland has appointed Judge Sheila McNulty to be the Chief Immigration Judge at EOIR. Previously, she was the Regional Deputy Chief Immigration Judge.
The position had been vacant since the resignation of the previous Chief Immigration Judge, Tracy Short, in July 2022. Unlike Short, who came from ICE with no prior judicial experience, Chief Judge McNulty has been an Immigration Judge since 2010. For the last reported period that she was an Immigration Judge at the Chicago Immigration Court, 2014 -2015, Judge McNulty granted 52.3% of asylum cases, according to TRAC. She became an Assistant Chief Immigration Judge in 2015, and was promoted to Regional Deputy Chief Immigration Judge in 2021.
Sheila McNulty was appointed as Regional Deputy Chief Immigration Judge in March 2021. Judge McNulty received a Bachelor of Arts in 1984 from Miami University of Ohio and a Juris Doctor in 1991 from New England School of Law. From November 2015 to March 2021, she served as an Assistant Chief Immigration Judge, and during this time, from February 2020 to March 2021, she also served as Acting Deputy Chief Immigration Judge for the West. From October 2010 to November of 2015, she served as an Immigration Judge at the Chicago Immigration Court. From 2000 to 2010, Judge McNulty served as a Special Assistant U.S. Attorney with the former Immigration and Naturalization Service (INS) and U.S. Immigration and Customs Enforcement, in the Chicago Office of the U.S Attorney’s Office for the Northern District of Illinois. From 1991 to 2000, she served as a trial attorney for the former INS, entering on duty through the Attorney General’s Honors Program. From 1985 until 1988, Judge McNulty worked as a community activist and organizer in Cambridge, Massachusetts. Judge McNulty is a member of the Illinois Bar.
Congratulations and good luck to Chief Judge McNulty in her new leadership role. The Immigration Judge program needs help — lots of it!
Anti-asylum attitudes among some judges, wildly inconsistent decisions, “asylum free zones,” poor training, unprofessional conduct, lack of expertise, little quality control, emphasis on “productivity over due process,” inadequate law clerk support, over-reliance on oral decisions, debilitating backlogs, shortage of courtrooms and chambers, unreliable technology, “Aimless Docket Reshuffling” to meet the agenda of DOJ politicos, poor relations with the bar, lack of a due process vision, and cratering morale are among the many existential problems facing the new Chief Judge!
“Hipppity, hippity, hop! Deny, deny, deny! For any reason, in any season, or for no reason at all! Hippity, hippity, hop!” https://www.flickr.com/photos/rasputin243/ Creative Commons License
Dan Kowalski reports for LexisNexis Immigration Community:
Fwd: CA2 Vacates Matter of Y-I-M-, 27 I. & N. Dec. 724 (B.I.A. 2019)
“Petitioner, a native and citizen of Ukraine, seeks review of a December 12, 2019 decision of the Board of Immigration Appeals (“BIA”) affirming the denial of his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). Based on ostensible inconsistencies in Petitioner’s testimony and a purported failure to submit corroborating evidence, an Immigration Judge (“IJ”) entered an adverse credibility finding. However, we conclude that the adverse credibility finding is not supported by substantial evidence and that the IJ unjustifiably refused to allow Petitioner to present readily available witness testimony, thereby depriving him of a full and fair hearing. As such, we GRANT the petition for review, VACATE the BIA’s decision, and REMAND the case for further proceedings consistent with this opinion.”
First, many congrats to NDPA super lawyer John Giammatteo! Obviously (to everyone but Garland), experts like John belong on the Immigration Bench, not just in front of it!
Something is horribly wrong with a system that designates fabrications and denials of due process as “precedents” to guide other judges! Something is also disturbingly wrong with an Attorney General, a former Article III Federal Appeals Judge no less, who has failed to bring in real expert progressive judges to run EOIR, redo defective precedents as proper legal guidance, eradicate the disgraceful anti-asylum bias, and enforce due process, fundamental fairness, and decisional excellence in America’s most important “retail level” court system!
There currently are opportunities for better judges to get into the system, start eradicating bad judging like this, and replacing it with expert, due process focused, efficient, “real judging” by better judges. Get those applications in!
The “message” of Matter of Y-I-M- is clear: make it up, ignore it, cut it off, hustle off to lunch — whatever it takes to “get to no” — we’ll have your back!
“The decision is scorching,” says Dan Kowalski. And, well it should be! This is a disgusting,institutionalized travesty of justice 🤮, in life or death cases ☠️, going on right under AG Merrick Garland’s nose! It’s undermining American democracy! And, it’s totally preventable!
Remarkably, the BIA selected this pathetically bad adjudication — one that raises questions as to whether anyone at EOIR even read the record — combined with a horrendous denial of due process, and an IJ who obviously felt “empowered” to elevate time over fairness and substance — as a precedent! That means it was supposed to be a “model” for IJs — essentially a message that you should go ahead and deny asylum for any reason — even if largely fabricated — and the BIA will give you a “pass.” This actually raises some serious ethical problems with the whole EOIR mess and Garland’s indolent stewardship over this critical part of our justice system!
The IJ actually said this: “So, don’t get frustrated if I shutdown your arguments. It’s just that —we’re now at 12:00, and we’re nowhere . . . near done in the case.”
Amazingly, this IJ “touted” that cutting off relevant testimony, actually “helped” the respondent by giving him more possible reasons to appeal! Does this sound like a system that encourages “efficiency” and “excellence?”
No wonder they have backlogs coming out the wazoo! Yet, rather than slamming this IJ and using it as a precedent of how NOT to handle an asylum case, the BIA basically “greenlighted” an egregiously defective performance and made it a “model” for other judges! Outrageous!
It’s an example of why this system needs progressive, due process oriented leadership and radical reforms! Now!
A competent IJ could have granted this corroborated case and still have made their “noon lunch date!” Recognizing and institutionalizing consistent grants of relief is what “moves” the Immigration Court system without violating anyone’s rights and without tying up the Article III Courts!
Instead, because of the unchecked “culture of denial” and the incompetence allowed to flourish at EOIR, after four years this case is still bouncing around the system. That’s a key reason why EOIR is dysfunctional and their backlogs are out of control!
Correct, positive precedents establishing and enforcing best practices are essential to due process and fundamental fairness — once, but no longer, EOIR’s “vision.”
One of the “uninitiated” might logically expect that having exposed and eliminated this disingenuous “any reason to deny asylum” precedent, advocates for due process and fundamental fairness have “won this battle.” Not so in the “parallel universe” of Garland’s EOIR!
As pointed out by Hon. “Sir Jeffrey” Chase of the Round Table:
If they follow past practice, the BIA will continue to apply this decision as a model for IJs in every circuit but the 2d.
Come on, man!
The author of the Second Circuit decision, U.S. District Judge Gary Brown has an interesting background, according to “Sir Jeffrey:”
Also, the judge who wrote the decision for the panel, Gary Brown, is a Trump appointee to the Eastern District of NY sitting by designation on this panel. When John’s argument was being mooted, we actually discovered that Judge Brown is also a renowned magician, who invented an effect called the Viking Spirit Trumpet.
Actually, Judge Brown was nominated for the bench by both President Obama and President Trump! Wonder if he has any magic spells up his sleeve that would make EOIR disappear and reappear as a real, due-process-focused court!
Magic Hat & Wand Could U.S. District Judge Gary Brown, also a famous magician, conjure up a spell that would make due process “reappear” at EOIR? PHOTO: Public Realm
Amazing how busy Article III Judges can take the time to read and understand records in asylum cases, but the BIA can’t! This system is broken!
Meaningful reform starts with a new, better qualified, expert BIA focused solely on due process, fundamental fairness, and decisional excellence. It’s very straightforward! Why doesn’t Garland “get it?” How many more will be wrongfully denied while our disconnected AG floats around in his surreal, yet deadly, “intellectual never never land?”
Lost in an intellectual fog, and far removed from the “retail level of justice,” AG Merrick Garland can’t be bothered with the injustices heaped on asylum seekers and their dedicated representatives in his dysfunctional, deny for any reason, Immigration Courts! PHOTO: Wikipedia Commons
Every time I read this decision I get more and more outraged about the continuing horrors of EOIR! Attorneys could face sanctions for making material misrepresentations in briefs. Yet, nothing happens to EOIR Judges who “make it up as they go along” to deny asylum!
I was told by some withknowledge of the EOIR disaster that, at least until recently, those at higher levels of the Administration who (curiously) are “pulling the strings” at EOIR were unaware that Immigration Judges are not automatically “packaged” with Judicial Law Clerks! Duh! Anybody who has actually worked at the “line level” of EOIR as well as a whole bunch of widely available reports and studies could have told them that!
So, according to my sources, in at least some locations “flooded” with new IJs, the already poor IJ to JLC ratio has gotten much, much worse!
Just another piece of “low hanging fruit” that Garland has failed to “harvest.” I’ve also been told that problems with grade levels discourage individuals from making a career out of working in the law clerk program.
All of this makes it critical that new Immigration Judges be experts in immigration law with “hands on” experience. So, NDPA practical scholars, get those applications for judgeships in NOW! Indolence about due process at the top creates opportunities for spreading and institutionalizing due process at the “retail level!” But, that requires great judges with the right experience. So, don’t wait! Apply today!🗽⚖️👨🏾⚖️👨🏼⚖️👩🏾⚖️🧑🏻⚖️
People all around the world look to the United States as a land of opportunity and safety. Every month, tens of thousands of people arrive at US border checkpoints and ask to be granted asylum. Over the last decade, the number of people showing up at the southern U.S. border seeking protection has increased five-fold to more than 200,000 every month. That huge increase has so overwhelmed the system that getting a final answer often takes years. There is bipartisan agreement that the asylum system is broken. How we fix the backlog, though, depends a lot on how we answer the question at the heart of today’s podcast episode: what is our obligation to asylum seekers? Are we responsible for taking these individuals in? We’ll be hearing from two previous asylum seekers about the challenges of seeking asylum in the United States, a writer who had an eye-opening experience learning how America’s asylum process differs from other countries, and two former immigration judges with differing perspectives on how we should implement asylum law in the United States. As we hear each of these perspectives, we’ll consider this question: what do we owe people who are no longer safe or able to prosper in the countries where they happen to have been born?
Podcast Guests: Razak Iyal, sought asylum in the U.S. in 2013, granted asylum in Canada in 2017 Joe Meno, Author of “Between Everything and Nothing: The Journey of Seidu Mohammed and Razak Iyal and the Quest for Asylum” Makaya Revell, CEO of Peace Promise Consulting, granted U.S. asylum in 2022 Andrew Arthur, resident fellow in law and policy at the Center for Immigration Studies, former immigration judge 2006-2014 (York, Pennsylvania) Paul Wickham Schmidt, adjunct professor of law at Georgetown University, former immigration judge 2003-2016 (Arlington, Virginia) **This episode is part of Season 3 on Top of Mind: Finding Fairness. From health and immigration to prisons and pot, how can we get more peace and prosperity for all?
This position is in the Executive Office for Immigration Review (EOIR), Office of the Chief Immigration Judge.
EOIR plays a pivotal role in the administration of the Nation’s immigration system. EOIR’s mission is to adjudicate immigration cases fairly, equitably, and efficiently at the trial and appellate level, governed by due process and the rule of law. Under delegated authority from the Attorney General, EOIR conducts immigration court proceedings, appellate reviews, and other administrative hearings, applying the immigration laws while ensuring that adjudicators are impartial, that laws are applied humanely and equitably, that all parties are treated with respect and dignity, and that cases are resolved expeditiously and in accordance with the Administration’s priorities and all applicable laws and regulations.
EOIR consists of three adjudicatory components: the Office of the Chief Immigration Judge, which is responsible for managing the numerous immigration courts located throughout the United States where immigration judges adjudicate individual cases; the Board of Immigration Appeals, which primarily conducts appellate reviews of the immigration judges’ decisions; and the Office of the Chief Administrative Hearing Officer, which adjudicates immigration-related employment cases. EOIR’s Headquarters is located in Falls Church, Virginia, about 10 miles from downtown Washington, DC.
As the federal agency whose mission is to ensure the fair and impartial administration of justice for all Americans, the Department of Justice is committed to fostering a diverse and inclusive work environment. To build and retain a workforce that reflects the diverse experiences and perspectives of the American people, we welcome applicants from the many communities, identities, races, ethnicities, backgrounds, abilities, religions, and cultures of the United States who share our commitment to public service.
Job Description:
Immigration Judges preside in formal, quasi-judicial hearings. Proceedings before Immigration Judges include but are not limited to removal, and bond adjudications, and involve issues of removability as well as applications for relief such as asylum, withholding of removal, protection under the Convention Against Torture, cancellation of removal, and adjustment of status.
Immigration Judges make decisions that are final, subject to appeal to the Board of Immigration Appeals. In connection with these proceedings, Immigration Judges exercise certain discretionary powers as provided by law, and are required to exercise independent judgment in reaching final decisions. Immigration Judges may be required to conduct hearings in penal institutions and other remote locations.
Qualifications:
In order to qualify for the Immigration Judge position, applicants must meet all of the following minimum qualifications:
Education: Applicants must possess a LL.B., J.D., or LL.M. degree. (Provide the month and year in which you obtained your degree and the name of the College or University from which it was conferred/awarded.)
AND
Licensure: Applicants must be an active member of the bar, duly licensed and authorized to practice law as an attorney under the laws of any state, territory of the U.S., or the District of Columbia. (Provide the month and year in which you obtained your first license and the State from which it was issued.)
AND
Experience: Applicants must have seven (7) years of post-bar admission experience as a licensed attorney preparing for, participating in, and/or appealing court or administrative agency proceedings at the federal, state or local level. Relevant experience may include that gained in civil, criminal, or military cases, as well as in any case in which a formal procedure was initiated by a government administrative body.
NOTE: Qualifying experience is calculated only after bar admission.
Successful applicants will have a strong combination of experience demonstrating that they will perform at the level of competence, impartiality, and professionalism expected of an Immigration Judge. For more information about relevant experience and knowledge, please see the “How You Will Be Evaluated” section.
Additional information
This is an Excepted Service position, subject to a probationary period. The initial appointment is for a period not to exceed 24 months. Conversion to a permanent position is contingent upon appointment by the Attorney General.
Additional positions may be filled from this announcement within 90 days of certificate issuance.
Alternative work schedule options are available. Immigration Judges’ tour of duty may include Saturdays and Sundays.
One or more court location(s) in this announcement is under construction and may not be open for some time. If selected for a court that is not physically open, you will be temporarily assigned to a court currently open, as needed. If selected, once your court has opened, your duty station will be adjusted to reflect your new court location.
There is no formal rating system for applying veterans’ preference to Immigration Judge appointments in the excepted service; however, the Department of Justice considers veterans’ preference eligibility as a positive factor in Immigration Judge hiring. Applicants eligible for veterans’ preference must claim their status when completing their application in the online application process and attach supporting documentation (see the “Required Documents” section).
Salary:
$149,644 – $195,000 per year
Travel:
50% or less – You may be expected to travel for this position
Application Process:
To apply for this position, please click the below link to access and apply to the vacancy announcement via USA Job: USAJOBS – Job Announcement . Please read the announcement thoroughly. You must submit a complete application package by 11:59PM (EST) on 4/25/2023, the closing date of the annoucement.
Applicants should familiarize themselves and comply with the relevant rules of professional conduct regarding any possible conflicts of interest in connection with their applications. In particular, please notify this Office if you currently represent clients or adjudicate matters in which this Office is involved and/or you have a family member who is representing clients or adjudicating matters in which this Office is involved so that we can evaluate any potential conflict of interest or disqualification issue that may need to be addressed under those circumstances.
Application Deadline:
Tuesday, April 25, 2023
Relocation Expenses:
Not Authorized
Number of Positions:
Multiple vacancies in multiple locations
Updated April 14, 2023
* * *
Department Policies
Equal Employment Opportunity: The U.S. Department of Justice is an Equal Opportunity/Reasonable Accommodation Employer. Except where otherwise provided by law, there will be no discrimination because of race, color, religion, national origin, sex – including gender identity, sexual orientation, or pregnancy status – or because of age (over 40), physical or mental disability, protected genetic information, parental status, marital status, political affiliation, or any other non-merit based factor. The Department of Justice welcomes and encourages applications from persons with physical and mental disabilities. The Department is firmly committed to satisfying its affirmative obligations under the Rehabilitation Act of 1973, to ensure that persons with disabilities have every opportunity to be hired and advanced on the basis of merit within the Department of Justice. For more information, please review our full EEO Statement.
Reasonable Accommodations: This agency provides reasonable accommodation to applicants with disabilities where appropriate. If you need a reasonable accommodation for any part of the application and hiring process, please notify the agency. Determinations on requests for reasonable accommodation will be made on a case-by-case basis.
Outreach and Recruitment for Qualified Applicants with Disabilities: The Department encourages qualified applicants with disabilities, including individuals with targeted/severe disabilities to apply in response to posted vacancy announcements. Qualified applicants with targeted/severe disabilities may be eligible for direct hire, non-competitive appointment under Schedule A (5 C.F.R. § 213.3102(u)) hiring authority. Individuals with disabilities are encouraged to contact one of the Department’s Disability Points of Contact (DPOC) to express an interest in being considered for a position. See list of DPOCs.
Suitability and Citizenship: It is the policy of the Department to achieve a drug-free workplace and persons selected for employment will be required to pass a drug test which screens for illegal drug use prior to final appointment. Employment is also contingent upon the completion and satisfactory adjudication of a background investigation. Congress generally prohibits agencies from employing non-citizens within the United States, except for a few narrow exceptions as set forth in the annual Appropriations Act (see, https://www.usajobs.gov/Help/working-in-government/non-citizens/). Pursuant to DOJ component policies, only U.S. citizens are eligible for employment with the Executive Office for Immigration Review, U.S. Trustee’s Offices, and the Federal Bureau of Investigation. Unless otherwise indicated in a particular job advertisement, qualifying non-U.S. citizens meeting immigration and appropriations law criteria may apply for employment with other DOJ organizations. However, please be advised that the appointment of non-U.S. citizens is extremely rare; such appointments would be possible only if necessary to accomplish the Department’s mission and would be subject to strict security requirements. Applicants who hold dual citizenship in the U.S. and another country will be considered on a case-by-case basis. All DOJ employees are subject to a residency requirement. Candidates must have lived in the United States for at least three of the past five years. The three-year period is cumulative, not necessarily consecutive. Federal or military employees, or dependents of federal or military employees serving overseas, are excepted from this requirement. This is a Department security requirement which is waived only for extreme circumstances and handled on a case-by-case basis.
Veterans: There is no formal rating system for applying veterans’ preference to attorney appointments in the excepted service; however, the Department of Justice considers veterans’ preference eligibility as a positive factor in attorney hiring. Applicants eligible for veterans’ preference must include that information in their cover letter or resume and attach supporting documentation (e.g., the DD 214, Certificate of Release or Discharge from Active Duty and other supporting documentation) to their submissions. Although the “point” system is not used, per se, applicants eligible to claim 10-point preference must submit Standard Form (SF) 15, Application for 10-Point Veteran Preference, and submit the supporting documentation required for the specific type of preference claimed (visit the OPM website, www.opm.gov/forms/pdf_fill/SF15.pdf for a copy of SF 15, which lists the types of 10-point preferences and the required supporting document(s). Applicants should note that SF 15 requires supporting documentation associated with service- connected disabilities or receipt of nonservice-connected disability pensions to be dated 1991 or later except in the case of service members submitting official statements or retirement orders from a branch of the Armed Forces showing that their retirement was due to a permanent service-connected disability or that they were transferred to the permanent disability retired list (the statement or retirement orders must indicate that the disability is 10% or more).
USAO Residency Requirement: Assistant United States Attorneys must reside in the district to which appointed or within 25 miles thereof. See 28 U.S.C. 545 for district specific information.
* * *
This and other vacancy announcements can be found under Attorney Vacancies and Volunteer Legal Internships. The Department of Justice cannot control further dissemination and/or posting of information contained in this vacancy announcement. Such posting and/or dissemination is not an endorsement by the Department of the organization or group disseminating and/or posting the information.
******************
Storm the gates! Show the world what REAL due process and adherence to the generous remedial purposes behind the Refugee Act of 1980 looks like! Make “Equal Justice For All” a reality, not just a “throwaway line!”
The “rule of law” is about fundamental fairness — it’sNOT about turning our justice system into a “deterrent” or fulfilling the enforcement agenda of DHS! The latter is a PARTY, just like the individuals seeking justice before these courts.Put to work your comprehensive knowledge, experience, courage, persistence, and skills in forcing a fundamentally biased and unfair system to do justice for individuals — in spite of itself.
EOIR doesn’t have to be a disaster! “Institutionalize” due process, decisional excellence, and fundamental fairness!
Apply, apply, apply! Change the world for the better! Save lives at the most important level of our justice system — the “retail level!”
Holy card ( 1899 ) showing an illustration to the Gospel of Matthew 25, 34-36 – rear side of an obituary. Wolfgang Sauber Creative Commons Attribution-Share Alike 4.0
MATTHEW AT THE BORDER: ACTING ON THE MESSAGE OF CHAPTER 25
By Paul Wickham Schmidt
U.S. Immigration Judge (Retired)
Westminster Presbyterian Men’s Breakfast
April 14, 2023
I. INTRODUCTION: THE MESSAGE OF MATTHEW 25
Welcome. Thank you for inviting me and for coming out this morning.
Of course, I want to hold my friend and fellow “Badger” Dudley, the Men’s Group, honored guests, and anybody else of any importance whatsoever harmless for my remarks this morning. While I have borrowed liberally from the ideas and inspirations of others, I take sole responsibility for the views expressed in my presentation.
I don’t usually start my talks with a Biblical quote. But, since this is a church men’s breakfast, we are in the holy season, and my topic is integrally tied to Judeo-Christian values, I want to read from Matthew 25, verses 34-46:
34 Then the king will say to those at his right hand, “Come, you that are blessed by my Father, inherit the kingdom prepared for you from the foundation of the world;
35 for I was hungry and you gave me food, I was thirsty and you gave me something to drink, I was a stranger and you welcomed me,
36 I was naked and you gave me clothing, I was sick and you took care of me, I was in prison and you visited me.’
37 Then the righteous will answer him, “Lord, when was it that we saw you hungry and gave you food, or thirsty and gave you something to drink?
38 And when was it that we saw you a stranger and welcomed you, or naked and gave you clothing?
39 And when was it that we saw you sick or in prison and visited you?’
40 And the king will answer them, “Truly I tell you, just as you did it to one of the least of these who are members of my family, you did it to me.’
41 Then he will say to those at his left hand, “You that are accursed, depart from me into the eternal fire prepared for the devil and his angels;
42 for I was hungry and you gave me no food, I was thirsty and you gave me nothing to drink,
43 I was a stranger and you did not welcome me, naked and you did not give me clothing, sick and in prison and you did not visit me.’
44 Then they also will answer, “Lord, when was it that we saw you hungry or thirsty or a stranger or naked or sick or in prison, and did not take care of you?’
45 Then he will answer them, “Truly I tell you, just as you did not do it to one of the least of these, you did not do it to me.’
46 And these will go away into eternal punishment, but the righteous into eternal life.”
II. OVERVIEW
The last time I was with you, five years ago, I described the mess and rampant unfairness in our immigration system. I’d like to say that those times are behind us: That we have restored the rule of law, enhanced due process, and acted, as a nation, in a manner that showed adherence to those passages from Matthew.
But, unfortunately, I can’t do that. Not yet! Despite many promises to fix the mistakes of the past and to do better in the future, and a few successes, the current Administration has, in my view, disturbingly failed to deliver on our obligation to treat “the stranger” and “the other” — in other words, some of “the least of these” — fairly and with human dignity. Nowhere is this more harmful, discouraging, and threatening to both human life and our democracy than at our borders.
The most vulnerable among us, asylum seekers, who ask for little other than to be treated fairly and humanely under our laws, are still being victimized by dysfunctional bureaucracies more intent on deterring and rejecting than on protecting!
I’m going to tell you truths that some find uncomfortable; briefly summarize our current and proposed “built to fail system” at the borders; and tell your why it doesn’t have to be this way!
I’m going to share with you some ideas from legal and humanitarian experts on how our nation could do a far better job for ourselves and for refugees just by more creatively, boldly, and courageously exercising authorities under existing law. In other words how we as a nation could reflect on Jesus’s parable in Matthew and make it a reality.
III. UNCOMFORTABLE TRUTHS
Let me tell you a few truths that the “false prophets” find uncomfortable.
First, there is an internationally recognized right to seek asylum. Our law states that any person “who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including [someone] who is brought to the United States after having been interdicted in international or United States waters), irrespective of such [person’s] status, may apply for asylum.” [INA, 208(a)].
Second, according to the 5th Amendment to our Constitution, “no person . . . shall be . . .deprived of life, liberty, or property without due process of law.” Note that it says “person,” not citizen or “lawfully present non-citizen.”
Third, according to our Supreme Court, asylum laws are to be applied generously, so that even those with just a 10% chance of suffering persecution could qualify. [INS v. Cardoza-Fonseca]. In other words, according to the Board of Immigration Appeals, the highest administrative tribunal in immigration where I once served as an appellate judge and Chair, asylum can be granted “even where [the likelihood of persecution] is significantly less than clearly probable.”[Matter of Mogharrabi].
Additionally, the Handbook of the United Nations, whose Refugee Convention we adopted and which forms the basis for our refugee and asylum laws, says that because of the traumatic situation of refugees and the understandable difficulty they have in gathering and presenting “evidence,” refugees and asylum seekers should be given “the benefit of the doubt” in adjudications.
Fourth, by definition, refugee situations are driven by a variety of life-threatening forces occurring in sending countries, most of them outside our immediate control. Therefore, attempts to use harsh applications of our laws, intentionally “user-unfriendly” procedures, and punishment such as prosecution, imprisonment in life-threatening conditions, and even family separation as “deterrents” are ultimately doomed to failure. I’ve personally watched this “play out” during my five decade career in immigration.
Friends, human migration is a reality as old as humanity itself. It existed long before the evolution of the “nation state” and will continue as long as there is human life on this earth.
Consequently, the idea of some that we can unilaterally cut off or end human migration solely by our own cruel, repressive, and unfair actions is absurd. As I always say, “We can diminish ourselves as a nation, but that won’t stop human migration.”
Fifth, America needs immigrants. Refugees and asylees are part of our legal immigration system. They should be treated as such and welcomed, rather than being dehumanized and viewed as a “loophole,” a “threat,” or“invaders.”
Unhappily, in my view, most of our past and current policies toward refugees and asylum seekers run afoul of these fundamental truths. Worse still, legislators, policy makers from both parties, and even Federal Judges have been willing to run roughshod over these fundamental principles when they believe it is personally, politically, financially, or even professionally expedient.
IV.CURRENT BORDER POLICIES
Currently, our border asylum policies, largely “holdovers” from the Trump Administration, are overwhelmingly weighted toward improper, and ultimately futile, “deterrence.” This reflects deeply imbedded nativist, often racist, views by those holding power.
Our Government currently claims that our border is “closed” to legal asylum seekers, as it has been since March 2020. Under a vestige of Trump-era policy, known as Title 42, the legal processing of asylum applicants and their admission has been suspended based on a transparently pretextual, manufactured claim of necessity to protect America from COVID.
This allows many individuals to be excluded from the U.S. without any legal process and without having a chance to make a claim for asylum or other legal protection. Others are allowed to come into the U.S. under highly discretionary — most would say arbitrary — opaque “exceptions” to Title 42 that are within the sole discretion or DHS officials without any meaningful review.
The result is a mess. Some refugees are returned to Mexico or their home countries where they are subject to abuse, extortion,exploitation, crime, torture, and sometimes death.
Others, who might or might not be refugees, are allowed into the U.S., often with inadequate screening and without clear instructions as to what they are to do next. Because the Biden Administration didn’t establish any uniform nationwide resettlement system for those allowed in, they have been subject to cruel political stunts.
One of the most well-publicized of these has been the so-called “voluntary relocation” of individuals from the border by the governors of Texas, Florida, and, until the recent election, Arizona. They are sent by these governors, without coordination or notice, to supposedly “liberal” cities such as New York, Chicago, Denver, and Washington, D.C., in the calculated hopes of overwhelming community nonprofit organizations, creating chaos, and thereby causing a “backlash” against asylum seekers and the Administration.
V. BIDEN’S LARGELY MISGUIDED PROPOSALS
The Biden Administration has made some rather halfhearted efforts to end Title 42. To date, these have been blocked by right-wing Federal Judges, mostly Trump appointees.
But, it now appears that with the overall “COVID emergency” ended by President Biden, Title 42 will also end on May 11, barring further obstructionist litigation.
Many of us had hoped that after more than two-years to work on regularizing and normalizing asylum processing, the Biden Administration would have a “ready to implement” plan for restoring order, fundamental fairness, and due process to asylum adjudication.
But, sadly, this is not the case. The Biden Administration has actually proposed what many of us consider to be “gimmick regulations” to take effect upon the expiration of Title 42. These proposals actually build upon, and in some cases expand, unfair, restrictive, ineffective policies used by the Trump Administration to “deter” asylum seekers.
Obviously, many experts have opposed these measures. A group of which I am a member, the Round Table of Former Immigration Judges, filed an official comment in opposition to these proposals.
In it, we stated:
[T]he proposed rule exceeds the agencies’ authority by seeking to create a ban on asylum that contradicts Congressional intent and international law. As former Immigration Judges, we can confidently predict that the rule would result in individuals being erroneously deported even where they face a genuine threat of persecution or torture. We urge that the rule be withdrawn in its entirety.
Notably, approximately 33,000 individuals and organizations joined us in submitting comments in opposition to these regulations. Among these is the union representing the DHS Asylum Officers who claim, with justification, that applying these proposed provisions would require them to violate their oath to uphold the law.
At the heart of the Administration’s proposed changes is a new bar for those who apply for asylum other than at a port of entry and who can’t show that they have applied and been denied asylum in a country they “transited” on the way to the U.S.
Absurdly, this includes some of the most dangerous countries in the world, without well-functioning, fair asylum systems: Mexico, Honduras, Guatemala, El Salvador, Nicaragua, Colombia, being among those often transited.
This is also a rather obvious contradiction of the statutory command I read earlier that individuals can apply for asylum regardless of whether they arrive at a port of entry.
While there are some “emergency exceptions” to these new bars, they are narrow and will be almost impossible for individuals who have made the long, difficult, and dangerous journey to establish.
The proposal also improperly raises the statutory standards for preliminary screening of these individuals by Asylum Officers from “credible fear” to “reasonable fear.” This improperly weaponizes “gatekeepers” to block access to the asylum adjudication system.
Another “centerpiece” of the proposal is to require all asylum applicants arriving at ports of entry to schedule in advance an appointment for asylum screening using a new app called “CBP One.” Unfortunately, according to those actually at the border with asylum seekers, CBP One is “not quite ready for prime time.” It’s plagued by technical glitches, including disconnection, inability to schedule appointments for all family members, failure of the “facial recognition” software with some ethnic groups, and issues of usable wi-fi in Mexico and cell phone access among some applicants.
As Senator Cory Booker (D) of New Jersey stated following a recent trip to the border:
“Even if the CBP One app [were] as efficient, user friendly, fair, and inclusive as possible – which I hope one day it will be – it would still be inherently discriminatory.”
Additionally, the “appointments” currently available for asylum seekers are woefully inadequate and often are exhausted shortly after being posted, leaving legal asylum seekers frustrated and stranded in deplorable conditions near the Mexican border.
The Administration has recognized the need to encourage applications for refugee status in or near the countries from which refugees flee. But, instead of providing for more robust refugee admissions, the Administration has circumvented existing refugee laws by creating “special programs” for nationals of five countries to apply for temporary “parole into the U.S.”
This process is restricted to only five countries: Venezuela, Nicaragua, Haiti, Cuba, and Ukraine. The numbers of paroles are limited, and the criteria do not necessarily relate to refugee qualifications, relying heavily on the ability to obtain a U.S. sponsor in advance.
While this undoubtedly benefits some nationals of these countries, it does not prioritize refugees and it contains numerical limitations that do not apply to those seeking asylum. The arbitrary, highly discretionary nature of the parole determinations is combined with the lack of any statutory mechanism for conferring green cards upon the expiration of parole. This “limbo” situation recreates many of the ad hoc factors of parole programs prior to the Refugee Act of 1980 that Congress specifically intended to eliminate.
Another so-called “feature” of the proposed system being touted by the Administration is the negotiated ability to remove up to 30,000 non-Mexicans per month to Mexico. This is despite the well-publicized dangers awaiting them there, including the recent murders of American tourists and the “slow roasting” of 39 detained asylum seekers in a Mexican detention center fire.
The Biden Administration is also considering re-instituting so-called “family detention” and increased criminal prosecutions of those who cross the border illegally. These policies, also employed by the Trump Administration, have proved highly problematic in the past.
Then there is the mess in the individual asylum adjudication system that was weaponized and largely destroyed by the Trump Administration. Unqualified personnel, perceived to be committed to denying asylum above all else, were selected both at DHS and for Immigration Judge positions at the Immigration Courts, known as EOIR in the Department of Justice. Both the Asylum Office and EOIR are now incredibly backlogged.
As currently operated, the Immigration Courts feature a number of so-called “asylum free zones” where asylum is almost never granted by judges who are renowned for denying 90-100% of the asylum claims, far above the already grossly inflated “national average.”
Even when asylum is granted, it too often depends more upon the attitude and background of the individual Immigration Judge assigned than on the merits of the case. The U.S. Courts of Appeals regularly return cases to EOIR after pointing out very basic legal and factual errors committed by the latter in their undue haste to deny protection!
The current dysfunction at EOIR violates the commands of the law, that I read to your earlier, for due process, fairness, generosity, and applying the benefit of the doubt to asylum adjudications.
Indeed, attempting to avoid the Immigration Courts, now with an astounding 2 million backlog of pending cases, at least 800,000 of them involving asylum, appears to be one of the “drivers” of Biden Administration asylum policies. Unfortunately, in their two years in office, this Administration has done little to reform the Immigration Courts to improve expertise, efficiency, and due process and to repair the systemic damage done during the Trump Administration.
To add insult to injury, incredibly, the Biden Administration just “put on hold” one of the few potential improvements they had made to the asylum process: Allowing Asylum Officers to grant asylum to border applicants who pass credible fear. This would actually bypass the EOIR backlog without diminishing anyone’s due process rights. After pushing this change as potentially “transformational,” the Administration totally blew the implementation in a stunning show of ineptness and lack of basic preparation.
V. BETTER SOLUTIONS THROUGH EXISTING LAW
In my view, and that of other experts, we are once again heading for a systemic failure to do right by refugees and asylum seekers. The primary reason is that, in contravention of the law, the lessons of the Holocaust, which gave birth to the Refugee Convention, and the scriptures, we view refugees — “the stranger in need” — as “problems” or “statistics” to be “deterred,” “punished,” “discouraged,” and “denied.”
This is a wrong-headed — and fundamentally un-Christian — view. Refugees are fellow humans — like us — in need. They are legally entitled and deserving of our protection.
But, beyond that, they are an important source of legal immigration that our country was built upon and continues to need. Indeed most of the ancestors of those of us in this room probably came to this country fleeing or escaping something, regardless of whether or not it would have met today’s refugee definitions.
The border doesn’t have to be a source of disorder and embarrassment to our nation. There are better alternatives, even under existing law.
My experience tells me that if, instead of straining to improperly deter refugees, we use available tools to construct a fair, timely, generous, practical, expert, user-friendly legal system for refugees and asylees, the vast majority of them will use it. That will necessarily take pressure off the task of apprehending those seeking to evade the system.
What I’m going to share with you are ideas for progressive, humane, constructive improvements developed and advocated by many experts and NGOs. Certainly, these are not just my ideas.
First, we must maximize use of the existing provisions for legal screening and admission of refugees processed outside the United States. Currently, those programs are overly cumbersome and far too anemic with respect to the Western Hemisphere, particularly for countries in the Northern Triangle of Central America that are traditional “sending countries.”
Refugees screened and approved abroad arrive at our borders with documents and immediate work authorization. They are also able to bring family members and have a clear statutory path to obtaining green cards and eventually citizenship. These are important factors missing from the ad hoc parole programs instituted by this Administration.
Second, we need radical reforms of our Asylum Offices at USCIS and the Immigration Courts at EOIR. The “deadwood and nay sayers” who overpopulated these agencies during the Trump Administration must be weeded out and replaced with true subject matter experts in asylum, preferably with actual experience representing asylum seekers.
There are many asylum cases, both among arriving applicants, and languishing in the largely self-created backlogs, that could and should be prioritized and rapidly granted. Better trained and qualified Asylum Officers should be encouraged to grant asylum at or near the border whenever possible. That avoids the need to “refer” cases to the backlogged Immigration Courts.
Within EOIR, a great place to “leverage” reform would be at the BIA. That body was intentionally “packed” with some of the highest asylum-denying judges during the Trump Administration. Bringing in well-respected subject matter experts to set positive asylum precedents, establish and enforce best practices, and “ride herd” on the toxic “asylum free zones” and “deniers’ clubs” allowed to flourish among Immigration Courts would be a huge step forward.
And, for those who are found not to have a credible fear of persecution, after a fair screening system and fair rules administered by Asylum Officers who are experts, the law already provides for “summary expedited removal” without resort to full Immigration Court hearings, thus avoiding that backlogged system.
There is not, and has never been, a legitimate need to resort to Title 42 and other improper gimmicks, to deal with large migration situations. To the extent that one believes in the effectiveness of “deterrence” for those who do not have credible asylum claims, it’s built right into our existing law.
Third, the Administration should be working with the private bar, NGOs, states, and local governments to maximize access to pro bono or low bono asylum representation. Currently, far too many adjudications take place either in detention centers in intentionally obscure locations or at out of the way ports along the border.
Achieving representation needs to be a driving factor in establishing asylum processing. Indeed, studies have shown that representation not only dramatically improves results for asylum seekers but also virtually guarantees their appearance at all immigration hearings, without detention. It’s probably the biggest “bang for the buck” in asylum adjudication strategies.
The Government should also be working to encourage and, where possible, fund innovative programs like VIISTA Villanova that train non-attorneys to be “accredited representatives” for recognized non-profit organizations representing asylum seekers.
Fourth, rather than expensive and inhumane detention prisons, the Government should establish a network of “reception centers” near the border and throughout the country. These could provide safe, sanitary, residential housing, education, and even work opportunities while individuals are being timely and professionally processed for asylum. They also could be matched with legal staff.
These centers should be run by NGOs and other social service organizations with government funding. They would be a humane replacement for the privately run “detention centers” that have been the center of controversy and human rights abuses.
Fifth, the government should work with NGOs, charitable organizations, and regional economic consortiums to establish orderly, effective resettlement programs in the U.S. that would match those granted refugee or asylum status with housing and employment opportunities in areas of America where there skills can be best utilized.
Sixth, our government should continue to engage with the UN, other democratic nations, and economic development agencies to address the root causes of migration.
There are many other great ideas out here in the private sector that are being largely ignored by our Government. While nobody disputes the desirability of structural changes in our immigration laws, we could drastically improve and humanize our response to refugee situations just by more creative and robust application of already existing authorities and the expertise available in the U.S. humanitarian and NGO sectors.Approaching asylum as a humanitarian responsibility, rather than a law enforcement conundrum, is the key to escaping from the wilderness of failed “deterrence schemes” and creatinga better future for humanity.
VI. CONCLUSION
I can sum up by quoting one of the members of what I call the “New Due Process Army,” Amy R. Grenier. She said, very perceptively, that stripped of all of its legalistic complexities,“the concept of asylum is fairly simple. It’s the ability to ask for help and have someone listen to your story. And I think that that’s very easy to lose sight of.” I think that is also the message of the quote from Matthew 25 that I began with.
When we ignore these pleas for help from the most vulnerable and instead dehumanize, or as I sometimes say “Dred Scottify” them, we not only endanger their lives, but we also diminish our own humanity. I’ve never found anyone who wanted to be a refugee. And, but for the grace of God, any of us could be a refugee, at any time, often when you are least expecting it.
The problem with asylum at the border is not the law. It’s the lack of will, moral courage, vision, creativity, competence, and basic skills from those charged with implementing the law. In reality, there is plenty of flexibility in the existing law to encourage refugees to apply outside the U.S., to fairly, timely, and generously process those arriving at the border who invoke our laws, and to expeditiously remove those who don’t belong in the asylum system.
There is also plenty of legal authority to change inhumane and expensive “border jails” into “reception centers,” to increase the availability of pro bono representation, to resettle refugees and asylees in an orderly fashion, and to match the needs and skills of refugees and asylees with the needs of communities throughout the U.S.
The real issue is why is our Government wasting time and resources on cruel, legally questionable, ultimately ineffective “deterrence gimmicks” rather than solving problems, protecting the lives, and recognizing the humanity of those in need? Matthew knew what’s the right thing to do! Why don’t our elected leaders and the bureaucrats working for them?
I’ve shared with you some ideas for getting closer to “the vision of Matthew 25” in dealing with refugees and asylees. Of course, I haven’t solved the hard part — how to get the attention of politicians, legislators, bureaucrats, and judges who have largely “tuned out” the legal rights of refugees and other migrants and are all too prone to run from creative solutions, rather than embrace them.
But, hopefully, I have helped to install the first step: For all of us to recognize that contrary to what many say, we can do better for refugees and we should make doing so one of our highest national priorities. How we treat “the most vulnerable — the “least of those among us” — does affect everything else in our lives and our nation’s well-being!
We need to improve the informed dialogue, stand behind our values, and insist that those who govern us do likewise. Thank you and, as we say in the New Due Process Army, due process forever!
