Category: U.N. Convention and Protocol on Refugees

https://www.jeffreyschase.com/blog/2022/8/22/william-van-wyke-2

William Van Wyke

On August 14, the immigration law community lost a true giant. William Van Wyke, a former Immigration Judge, advocate, and scholar unexpectedly passed away.

How does one capture William’s essence? I’m going to attempt to do so through his own words (in bold), taken from both public sources and emails he wrote to his former Immigration Judge colleagues in conversations after his retirement from the bench.

“The fearful and crude ideas get put into practice by reflex; compassionate and thoughtful ones wait around until everyone agrees with them. – William” – April 1, 2021 email.

My first real impression of William came from reading his 1992 article “A New Perspective on ‘Well-Founded Fear,” which appeared in AILA’s conference handbook that year.1 In very simple, easy to understand language, WIlliam turned the existing method of asylum adjudication on its head, using an easy to apply concept that correctly brought the process in line with international law. It was absolutely brilliant. Thirty years later, we are still waiting around for the government agencies overseeing asylum adjudication to agree with it.

Prior to authoring that article, WIlliam had spent nine years pioneering the representation of Central American refugees before the Immigration Courts in Washington and Baltimore, beginning this work when the 1980 Refugee Act was still new.

“’We have a law that was intended to be generous, that, when it is well understood, would cover many cases — many, many more cases — than those that are granted,’ Van Wyke says.” –  Quote in Eyder Peralta, “Why A Single Question Decides The Fates Of Central American Migrants,” NPR, Feb. 25, 2016.

In one 1990 case in which his clients were denied asylum, William succeeded in persuading the Immigration Judge to rule that those clients could not be deported to their native El Salvador as long as the civil war continued there. William achieved this result by arguing customary international law, and analogizing a refugee’s flight from war to the customary practice of allowing a ship in distress the right to enter a port without authorization. The Washington Post quoted an immigration law authority who called the decision “one of the most impressive victories ever in an immigration court.” The decision was the subject of a law review article the following year.3

“My own experience is that people with anti-immigrant sentiments, whether in INS, DHS, EOIR or anywhere else, have always cringed at the idea of an IJ giving an unrepresented person sufficient information to make genuinely informed decisions… I remember a talk by Janet Reno at one of our conferences 20 years ago when she mentioned ‘compassion’ 12 times — I counted them. But try to actually be compassionate in specific cases in a legally appropriate and consequential way and you’re accused of overstepping judicial bounds. Didn’t I know that compassion is supposed to be a decoration, not something that actually helps the people before us?”  – Email, Sept. 18, 2019

William’s appointment as an Immigration Judge in March, 1995 sent a message of hope to the immigration law community. On the bench, William maintained his methodical, detail-oriented approach.  Early in his career on the bench, William reported that the INS trial attorneys had given him the nickname “the Van Wyck Expressway,” a reference to the similarly named NYC roadway that most know from traveling to or from JFK Airport. When William pointed out to one of those INS attorneys that his courtroom actually moved quite slowly, the attorney responded: “So does the Van Wyck Expressway.”

While we were both on the bench, I heard that William had developed a highly unique seating plan for his courtroom, and asked him about it one day. He showed it to me, explaining in detail his deeply thought out reasoning for the placement of every chair in the room. I don’t remember the specifics so many years later, but it was a perfect example of the strong sense of responsibility WIlliam felt towards all who set foot in his courtroom.

That sense of responsibility became even more heightened when WIlliam transferred from the court in New York to what he used to call “plain old York,” meaning the detained immigration court in York, Pennsylvania, located inside of the York County Prison.4

In one case he heard there, a non-citizen sat in jail awaiting approval of a green card petition filed by his U.S. citizen wife that could have saved him from deportation. But approval of visa petitions is not something an immigration judge can do; that power lies with the same government agency that was seeking the non-citizen’s deportation (at the time, that was INS; it is now DHS). After continuing the case multiple times to allow for a decision on the visa petition, WIlliam was repeatedly informed by INS’s attorney that no action had been taken.  The INS attorney further refused to inquire as to when a decision might be expected, and insisted that rather than wait, the non-citizen should be ordered deported.

Although at the time such action required the consent of both parties, WIlliam took the bold step of administratively closing the case over the government’s objection, writing a detailed decision explaining the necessity of doing so under the facts presented.

Remarkably, rather than appeal William’s denial to the Board of Immigration Appeals, the INS attorney privately and most improperly contacted the Chief Immigration Judge by phone, who in turn improperly reopened the matter and placed it back on for hearing.

In a decision that should be required reading for all EOIR management, WIlliam fired back at both INS and his own higher-ups, stating that it would be a “manifest injustice” to deport the respondent “simply because INS has not performed its Congressionally-mandated adjudication in a timely fashion.”

Detailing the extensive efforts he had undertaken to get INS to adjudicate the visa petition, WIlliam further noted that “[t]he asymmetry of ordering one party, but asking, begging, pleading and cajoling the other party hearing after hearing without effect, can only diminish the court as an authoritative and independent arbiter in the public’s eyes.”

WIlliam took the INS and the Office of the Chief Immigration Judge to task for their unethical ex parte communication, and the latter’s unauthorized action in response to such conversation:

The Chief Immigration Judge is an administrative and policy officer without appellate or other legal authority to overrule the immigration judge’s procedural decisions in the case, see 8 CFR 3.9, 3.1(b), and ethical rules require the Chief Immigration Judge as well as immigration judges to refrain from taking action in a specific case following an ex parte communication about the case by one of the parties.

William further noted that his “decision to close the case temporarily was not a mere administrative one subject to OCIJ’s general direction, but a legal decision made as an integral part of the adjudicatory process in an individual case.” William cautioned that the private communication, which denied opposing counsel the right to be heard, protected INS from having to defend its position in an appeal to the BIA, thus giving

a procedural and tactical advantage to the INS by demonstrating to respondent, rightly or wrongly, that an INS call to the Office of the Chief Immigration Judge may be enough to undo what the immigration judge does in open court, while encouraging the INS to continue to seek results from the OCIJ privately that it might not be able to get from the BIA publicly.

William concluded:

Unable to establish or enforce the standards of conduct that this judge believes must apply, he will recuse himself from further consideration of the case. In the court’s view, only the OCIJ, which went beyond mere administrative action to direct a particular course of action in this case, is in a position to cure the appearance of impropriety its intervention has produced. The court will therefore refer this case back to the Chief Immigration Judge for whatever action he may deem fit and appropriate.

The extraordinary nature of the matter was reported in an article in the New York Times.5

In retirement, William was a member of our Round Table that filed an amicus brief in an important case in the U.S. Court of Appeals for the Second Circuit, Velasco-Lopez v. Decker.  The case challenged the practice of requiring a detained non-citizen to themself prove that they would not pose a flight risk or danger to the community in order to warrant their release from detention. In its precedent decision, the circuit court agreed that such burden should be borne by the government, and not the detainee.

I share here part of William’s response to the decision

In this decision, the important starting point is that due process applies to every person in their relation to the power of government. This principle humanizes immigrant “others” and shows that when Big Government (i.e. the kind that wields power in favor of the already rich and already powerful) treads on anyone, everyone’s rights are in jeopardy. The principles relevant in bond decisions –– having ties to our communities and not being a danger to others –– are strong values that most of us honor and share, whether recent immigrants or earlier-generation immigrants, and should make all of us resist limitations on our freedom by the coercive power of jailing people.

I don’t know if they still staple those little yellow cards with red print onto files of jailed immigrants that used to say, “RUSH: detained at government expense.”  Years ago when I was at York I wrote to… EOIR General Counsel, to ask if we couldn’t change those cards to be more humane, to say, “RUSH: person deprived of liberty,” or at least more neutral: “person deprived of liberty at government expense.” A change, of course, was “unnecessary” because everyone already knew the immigrants’ hardship, even if our boss’s reminder focused only on the government’s. Maybe they’ll change the cards now to remind adjudicators: “Rush: this person should not be deprived of freedom unless the government quickly decides he/she lacks any community ties AND is dangerous.” I won’t hold my breath, though.

I will conclude by saying that just recently, I set about researching a narrow legal issue that I would imagine most Immigration Judges would resolve in a few pages at most. I came across a decision that William had written on the topic shortly before his retirement from the bench that was exactly what I was looking for. It was 39 pages single spaced, and of course, absolutely brilliant.

On behalf of your fellow judges, and of all who have appeared in Immigration Court, thank you, William, for being you, for never lowering your standards. You restored the hope of so many in the power of law to make a positive difference in people’s lives, and so often showed that there was a way forward when we thought there was none. You are already greatly missed.

Notes:

1. William Van Wyke, “A New Perspective on Well-Founded Fear,” 1992-93 Immigration & Nationality Handbook(AILA, 1992) at 497.
2. Carlos Sanchez, “Lawyer’s Persistence Helps Reshape Immigration Law,” Washington Post, March 31, 1991.
3. Cookson, II, Charles W. “In Re Santos: Extending the Right of Non-Return to Refugees of Civil Wars.” American University International Law Review 7, no. 1 (1991): 145-171.
4. The York Immigration Court was closed on July 31, 2021.
5. Eric Schmitt, “Two Judges Do Battle in an Immigration Case,” NYT, June 21, 2001.
6. 978 F.3d 842 (2d Cir. 2020). The author recognized the outstanding representation in this matter by the petitioner’s counsel, Julie Dona (who argued the case) and Aadhithi Padmanabhan of the Legal Aid Society, and to Souvik Saha of Wilmer Hale for his remarkable assistance in drafting our amicus brief.

AUGUST 22, 2022

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Jeffrey S. Chase is an immigration lawyer in New York City.  Jeffrey is a former Immigration Judge and Senior Legal Advisor at the Board of Immigration Appeals.He is the founder of the Round Table of Former Immigration Judges, which was awarded AILA’s 2019 Advocacy Award.Jeffrey is also a past recipient of AILA’s Pro Bono Award.He sits on the Board of Directors of the Association of Deportation Defense Attorneys, and Central American Legal Assistance.

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My first real impression of William came from reading his 1992 article “A New Perspective on ‘Well-Founded Fear,” which appeared in AILA’s conference handbook that year.1 In very simple, easy to understand language, WIlliam turned the existing method of asylum adjudication on its head, using an easy to apply concept that correctly brought the process in line with international law. It was absolutely brilliant. Thirty years later, we are still waiting around for the government agencies overseeing asylum adjudication to agree with it.

. . . .

William spent those years trying to persuade the government of the proper application of the new law.  However, INS and the newly created EOIR remained largely mired in the Cold War-influenced view of asylum that preceded the 1980 changes. And under that Cold War approach, Central Americans fleeing pro-U.S. regimes had nearly no chance to obtain asylum

A 1991 Washington Post article documented how this institutional resistance only caused William to be more persistent and creative in his legal approach.2

Kind of says it all about the entrenched, continuing, institutional resistance at EOIR to correct, generous, fair, practical interpretations of asylum law and other immigration and human rights laws! That’s what helps generate uncontrollable backlogs and brings our entire justice system into disrepute! Worst of all, it threatens the lives of those denied justice by its legal misinterpretations and mis-applications of the law!

What does it say about an institution that no longer touts or actively pursues its noble one-time-vision of “through teamwork and innovation, be the world’s best administrative tribunals, guaranteeing fairness and due process for all?” Ironically, William’s life and achievements embody that now-defunct “EOIR vision.” But, nobody in “management” actually acknowledged that during his often-difficult tenure there.

Encouragingly, a number of Garland’s recent judicial appointments are distinguished, expert, widely respected “practical scholars” in the “Van Wyke mold.” Unfortunately, it’s going to take immediate and dramatic changes in moribund, uninspired EOIR leadership and in the “any reason to deny” BIA to overcome the “Cold War mentality,” anti-immigrant bias, assembly line procedures, “institutionalized go along to get alongism,” and unacceptably poor performance of EOIR. Right now, it’s still drag on our entire justice system that puts the future of our nation at risk!

No wonder we already miss William, his outspoken courage, and his wisdom so much. There is a void in our justice system right now where fierce due-process-focused, creative, humane, practical scholars should be leading the way in our institutions of justice! 

It’s up to the “new generation” of the NDPA to break down the walls of official resistance by Garland and other short-sighted bureaucrats and politicos who lack the vision to make racial justice, immigrant justice, and equal justice for all realities rather than disingenuous unfulfilled rhetoric! Guys, your lives and those of your descendants might depend on it! So, dial up the pressure on the intransigents, many of them in the Biden Administration you helped to elect and who expect your support and votes again this Fall!

🇺🇸 Due Process Forever!

PWS

08-24-22