"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
Adina Appelbaum Director, Immigration Impact Lab CAIR Coalition Charter Member, NDPA PHOTO: “30 Under 30” from Forbes
NDPA Superstar 🌟 Adina Appelbaum writes on Linkedin:
Grateful for the opportunity to support undocumented students at Georgetown University tonight to learn about entrepreneurship options available to them as part of Georgetown’s UndocuHoya Month.
As a Georgetown University Law Center and Georgetown University McCourt School of Public Policy alumna, it was an honor to teach these brilliant students about how to navigate the immigration law, business, finance, and tax systems, so that they can become more financially empowered with the opportunities available to them through entrepreneurship.
If only all universities celebrated their undocumented students, and had people like Jennifer A. Crewalk, Ph.D. supporting them, like Georgetown.
Starting the training, it was surreal to speak about my own great grandparents who came to this country with nothing and survived by starting little candy, liquor, and grocery shops in Georgetown.
If they had been immigrants today, they would have been considered undocumented – there just weren’t the immigration laws in place at the time that labeled them as such.
Thanks, Adina, for posting this and for contributing your expertise to this program.
Proud to be part of the Georgetown U Community!
“If they had been immigrants today, they would have been considered undocumented – there just weren’t the immigration laws in place at the time that labeled them as such.”
So true for so many of us! How soon we as a nation forget our immigrant history and heritage!
Due Process is a true team effort! PHOTO: Tahirih Justice Center
Maria Daniella Prieshoff writes on LinkedIn:
Maria Daniella Prieshoff Managing Attorney Tahirih Justice Center Baltimore, MD PHOTO: Tahirih
Want to level up your #advocacy skills for your #genderbased #asylum cases in #immigrationcourt?Want to learn from a real immigration judge the basics of presenting your case before the immigration court?Then join me for Tahirih Justice Center’s”Advancing Justice: Gender-Based Violence Asylum Litigation in Immigration Court” webinar series!
Part 1 of the series is on April 23, 12-1:30pm. It will focus on the case law and strategy you’ll need to present your best gender-based asylum case, including how to handle credibility, competency, and stipulations.Monica Mananzan from CAIR Coalition will join me in this webinar. To register for Part 1: http://bit.ly/3xvwPyt
Honorable Lisa Dornell U.S. Immigration Judge (Retired) Member, Round Table of Former Immigration Judges
Part 2 of the series is on April 25, 12-1:30pm. Retired Immigration Judge Lisa Dornell will explain the best practices of litigating gender-based asylum cases before an immigration judge, as well as recommendations for direct examination, cross-examination, and how to handle issues with a client’s memory, trauma, or court interpretation.To register for Part 2: https://bit.ly/3PXJqRn
Please share with your networks!Our goal for this webinar series is to help pro bono attorneys and advocates enhance their the advocacy for #genderbasedviolence to have #immigrationjustice – we’d love for you to join us!
Wonderful learning opportunity! Many thanks to everyone involved in putting it together!
Litigating gender-based asylum cases can still be an “ordeal” at EOIR, despite some decent precedents. Learn how to avoid this fate for your clients! 17th Century Woodcut Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160
Wonder whatever happened to the “gender-based regulations” that Biden ordered to be drafted by Executive Order issued shortly after taking office? At this point, given his “lobotomized/running scared/retrograde/Trumpy Lite” position on asylum seekers and immigrants’ rights, probably just as well that they died an unheralded bureaucratic death (just as similar assignments have in the last three Dem Administrations over a quarter century).
Outside of a few Immigration Judges, who, because they understand the issue and have worked with asylum-seeking women, would never be asked anyway, I can’t really think of anyone at DOJ who would actually be qualified to draft legally-compliant gender-based regulations!
GOP are misogynists. Dem politicos are spineless and can’t “connect the dots” between their deadly, tone-deaf policies and poor adjudicative practices aimed at women of color in the asylum system and other racist and misogynistic polities being pushed aggressively by the far right! While, thankfully, it might not “be 1864” in the Dem Party, sadly, inexplicably, and quote contrary to what Biden and Harris claim these days, it’s not 2024 either, particularly for those caught up in their deadly, broken, and indolently run immigration, asylum, and border enforcement systems!
As safe corridors for migration disappear, more people risk their lives crossing the U.S.-Mexico border. And more people die. A new report by the nonprofit No More Deaths, along with a searchable map and database, documents the increasing number of migrant deaths at the border in New Mexico and far West Texas. Until now, not much research has been done on the deaths of people migrating through this section of the border. The project was led by Bryce, a No More Deaths volunteer (who asked that we not use his last name because the Far Right has recently been targeting the group). He, along with several others, have created the most comprehensive database to date of deaths in the Border Patrol’s El Paso Sector, which includes New Mexico and two counties in Texas, El Paso and Hudspeth. The report covers 15 years, from 2008 to 2023, and it shows many disturbing trends, including the acceleration of deaths that has accompanied “prevention through deterrence,” the U.S. government’s strategy implemented in the 1990s to push migrants into more remote, dangerous crossings. That strategy is now morphing into something all the more tragic as people, increasingly women and children, are barred from accessing asylum and are dying at the doorstep of American cities and towns. In this Q&A, Bryce talks about documenting these deaths, and the discoveries that both shocked and angered him in creating this new report.
Why did you study this particular part of the border in New Mexico and far West Texas?
A couple of years ago, a few of us started getting interested in what’s happening in New Mexico, and whether there’s any need for humanitarian aid out there, just because we hadn’t really heard anything but assumed there must be something happening out there. Quickly, we noticed that there was not much data in general about the area. So I started doing public records requests. And pretty quickly, just with the first batch of data, we got about 20 deaths for 2022. We went to some of those locations to see if we’d see trails. And while we were checking out some of these locations, we found human remains right across the street from a cemetery and about 50 feet from a main road in Sunland Park [New Mexico]. It was not a remote place. It was right in town. So we started looking at the Sunland Park Fire Department’s social media page, and quickly realized that there was a lot happening and quickly. And then 2023 ended up being this record deadly year for the area.
It’s shocking that you found a dead person right there in the middle of Sunland Park. Can you tell me more about this person? Were they identified? How long had the person been there? And how could this have been missed by people who live there?
He was later identified as a man from Colombia. [His name was Johan Orozco Martinez, age 36.] He had been there for a couple of days. I’m not joking when I say he was right across the street from the Memorial Pines Cemetery, and near the shoulder of the road. Many cars drive this road, but I think typically people look toward the cemetery, and I guess they didn’t see him because they were looking in the other direction. He was in his 30s and so older than many of the usually young men you see, for instance, crossing through southern Arizona.
Two findings that really stand out to me from your report are the number of women who have died, and how increasingly people are dying within city limits and no longer just in remote areas that are hard to access. I mean, you found a person in the middle of Sunland Park. What’s going on, do you think?
The dynamics of migration are complex. But one thing that seems pretty clear is that the asylum policies in the last few years have led to an increase in some of these deaths, just from people trying to get asylum and being prevented either by metering or by turnbacks. And then feeling they have no choice but to cross through the desert. A lot of people who are crossing are older, they’re women, they’re people with health problems. The demographics, we found, were much different in the El Paso sector than in southern Arizona, with people being older and more than 50 percent of the deaths in 2023 being of women, which is unusual.
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When did the deaths start increasing? And has the increasing militarization of the border and Operation Lone Star in El Paso contributed to these deaths?
Up until 2015, there were very few deaths in this area. But especially since 2018, the deaths have just been ramping up every single year. We were in New Mexico watching Operation Lone Star soldiers put up a barbed-wire fence between New Mexico and El Paso in an area where a lot of people cross. So once you’re in the United States, even crossing into Texas from the New Mexico side has become more deadly. And you can see National Guard in El Paso patrolling and pushing people back. The more enforcement, the more the deaths increase. In El Paso, there are what I call “moats” because if people climb the border wall, there’s an irrigation canal right on the other side, which at times can be moving very quickly. Then beyond that there’s multiple highways and more canals. So if someone is being chased by Border Patrol or Operation Lone Star, there are multiple deadly obstacles.
In 2022 there was a two-week period when 15 people died in the canals, one right after the other. This was during irrigation season in El Paso. Water is released from a reservoir in New Mexico into the canals and the river to irrigate farmland further east of El Paso. When that happens, the water can be going like 20 miles per hour. Unless somebody physically rescues you, there’s no way of getting out once you’ve fallen in. I watched a news broadcast in El Paso where they made a public service announcement about drowning deaths in El Paso, saying like, “Irrigation season is here, stay away from the canals, watch out for drowning.” But if you read all the autopsy reports, it’s almost all migrants dying. Because the medical examiner doesn’t flag whether it’s a migration-related death, you end up getting these weird statistics about drowning deaths being on the rise in El Paso. And so they’re directing these public safety messages toward El Paso residents who are actually in very little danger of drowning. And the people who are in danger of drowning, the migrants, have no idea.
Did you also find an increase in the deaths of children?
Definitely, yes. In 2018, two eight-year-old Guatemalan kids died. There’s a lot of teenagers dying, crossing the border wall, a lot of them drowning in El Paso city itself. For instance, there was a Russian man and his teenage daughter who both fell into a canal and drowned. They were running from Border Patrol agents. I believe that happened in 2021. We saw fewer deaths of younger people in New Mexico.
You also found that Customs and Border Protection is significantly undercounting deaths related to enforcement. Can you talk about this finding?
CBP is supposed to keep track of migrant deaths and CBP enforcement-related deaths, but we found that the agency is severely undercounting them. There’s been a lot of documentation in the past, talking about that fact, but there hasn’t been a whole lot of quantifying that undercount. Aside from the Arizona data that the Pima County Office of the Medical Examiner and Humane Borders have reported. For example, in one year we found 39 deaths, while CBP reported only 10 deaths.
We looked at investigator reports and so we were able to read the narratives, and learn circumstances around the deaths. We were able to see if someone was chased by Border Patrol, either on foot or by vehicle, or if they died in Border Patrol custody. We found that Border Patrol had tried to underplay some of these deaths.
We found that 15 percent of all migrant deaths in the El Paso sector were caused directly by Border Patrol due to chases or use of force, also due to custody deaths, or falls from the border wall. Humane Borders doesn’t track deaths related to Border Patrol enforcement. So this is the first instance that I’m aware of, where we are able to quantify the CBP undercount of Border Patrol-related deaths.
For 2022, for instance, we found 16 deaths that should have been reported by CBP as CBP-related deaths. CBP had only reported six of those deaths. Of the 16 we found, I think it’s still an undercount, because a lot of the investigative reports use vague or passive language about a person “jumping into the canal,” for instance. So you don’t know if the person was actually chased. So we only included cases where it’s very explicit.
What surprised you most in working on this report?
It’s really just shocking how close to help a lot of people died. I’m used to southern Arizona, where the terrain and trails are very remote. But we found people dying across the street from the cemetery, people dying a short walk from the Dollar General store. We’ve had this narrative of “prevention through deterrence” for the last few decades, which has pushed people away from cities into remote areas where they’re more prone to dying from heat exposure or something else. But now the border is militarized to the point where even Sunland Park, this suburb of El Paso, can be as deadly as the middle of nowhere in southern Arizona.
Last June, for instance, something like 40 percent more people died in Doña Ana County in New Mexico than the entire state of Arizona. Most of these deaths were close to the highway or close to a town. It’s a dynamic that has not really been studied. And the fact that it’s been happening for years without anybody really noticing is really scary.
With these findings, are No More Deaths and other humanitarian groups mobilizing to do search-and-rescue and water drops in this area?
Like Texas, much of the land in New Mexico where people are dying is privately owned land, so it’s difficult to access for humanitarian groups.
We’ve been going there about once a month for the past year to try to organize some support. There’s a group that doesn’t have a name yet that we’ve started to work with, that’s putting out water in some of these areas. There’s another group from southern Arizona that has moved over to New Mexico to search for remains in the desert.
We’re hoping the news will spread and that others will join to help. We have some money to help out some groups that are forming. We’re really hoping that groups will form on their own for search-and-rescue and putting out water. Because right now, Border Patrol is the only game in town if you call 911 as a migrant. And Border Patrol has a horrible track record of actually helping anybody.
To get involved, learn more, or support humanitarian efforts, contact No More Deaths here.
A complete lack of accountability for the misguided politicos and bureaucrats who are dishonestly pushing these immoral and ineffective policies without “owning up” to both the known deadly consequences and the lack of long-term “deterrent” value (even assuming, as I do not, that effective deterrence could justify immoral and illegal policies) of the actions they are touting; and
A complete abdication of professional journalistic standardsand performance from the many members of the so-called “mainstream media” who fail to include in each report on draconian “border control” proposals and “policies” the deadly, well-documented human consequences of those policies and who provide a toxic forum for politicos and supposed “pundits” spouting myths andnativist propaganda about “border enforcement,” without presenting experts like Melissa, Todd Miller and many others who have actual experience with the unending trauma and futility caused by our current misguided, often flatly illegal, and clearly immoral approach to “border enforcement.”
Becky Wolozin Senior Attorney, National Center For Youth Law PHOTO:Linkedin
Becky Wolozin, Senior Attorney, National Center For Youth Law, posted on LinkedIn:
I feel so privileged to have been part of this, to do something a good thing for people in this cruel world. Immensely proud of the advocates, migrants, and colleagues who worked together to hold the government to account and protect immigrant children caught in the fray of politics and an uncaring immigration system. It is a professional dream come true to be a member of Flores Counsel with National Center for Youth Law!
“Let us do something, while we have the chance! It is not every day that we are needed. Not indeed that we personally are needed. Others would meet the case equally well, if not better. To all mankind they were addressed, those cries for help still ringing in our ears! But at this place, at this moment of time, all mankind is us, whether we like it or not. Let us make the most of it, before it is too late!” ~ Waiting for Godot, Samuel Beckett
Thanks, Becky, for your talent, dedication, and humanity, all of which stand in sharp contrast to border bureaucrats, DOJ Attorneys, and scofflaw nativists who have “weaponized” myths, dehumanization, dereliction of legal duties, and abdication of moral responsibility! This is a great example of the type of expertise and teamwork to get the job done that is all too seldom seen from the Administration, Congress, and the Judiciary in today’s toxic and too often fact- and morality-free immigration (non) debate! I’m glad that Judge Gee saw through the Garland DOJ’s pathetic attempt to evade legal responsibilities by making arguments that easily could’ be characterized as frivolous!
You can check it out yourself as quoted from the above NYT:
In response, lawyers for the Department of Justice argued that because the children had not yet been formally taken into custody by American customs officials, they were not obligated to provide such service. They did not dispute that the conditions in the encampments were poor.
Come on, man!👎🤯
Samuel Beckett’s “Waiting for Godot,” and “Theater of the Absurd,” perhaps surprisingly, have continuing relevance to today’s “off the rails” immigration “debate.” Naseer’s Motley Group in The Rose Bowl Merlaysamuel Creative Commons Attribution-Share Alike 3.0 Waiting for Godot in Doon School.jpg Copy [[File:Waiting for Godot in Doon School.jpg|Waiting_for_Godot_in_Doon_School]] Copy December 8, 2011I also loved the quote from “Waiting for Godot!” As Courtside readers may know, the “Theater of the Absurd,”Samuel Beckett, and “Waiting for Godot” have previously found their way into my postings about Garland’s incredibly lackadaisical approach to “justice @ Justice!” See, e.g., https://immigrationcourtside.com/2023/12/22/%e2%9a%96%ef%b8%8f-followng-scathing-report-on-abuse-of-kids-in-immigration-court-eoir-announces-some-reforms-rekha-sharma-crawford-reports/.
Congrats, endless admiration, and much appreciation to all of these amazing and inspiring leaders! CAIR Coalition was a mainstay of the pro bono program during my tenure at the “Legacy” Arlington Immigration Court. Many outstanding leaders of the legal profession have been associated with CAIR. They have saved countless lives and made American society better and fairer!
As Courtside readers know, I am particularly proud of Adina Appelbaum, Program Director, Immigration Impact Lab.Here’s what I wrote about her in a past Courtside post:
I’m very proud to say that a member of the “CAIR Team,” Adina Appelbaum, program Director, Immigration Impact Lab, is my former Georgetown ILP student, former Arlington Intern, and a “charter member” of the NDPA! If my memory serves me correctly, she is also a star alum of the CALS Asylum Clinic @ Georgetown Law. No wonder Adina made the Forbes “30 Under 30” list of young Americans leaders! She and others like her in the NDPA are ready to go in and start cleaning up and improving EOIR right now! Judge Garland take note!
If only Garland had followed the advice of many of us to recruit amazingly talented expert leaders like Adina to reform and institutionalize due process at EOIR, the immigration “debate” would be completely different today!
Under Garland, the BIA’s approach to gender-based asylum has too often remained tethered to the past. Woman Being “Tried By Ordeal” 17th Century Woodcut Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160
Hon. “Sir Jeffrey” S. Chase reports to the Round Table⚔️🛡️:
Hi all: Another win to report, in a First Circuit case in which we filed a joint amicus brief with immigration law professors (and some in our group actually fit within both categories!).
However, the court declined to address our argument regarding the correct nexus standard for withholding claims (as opposed to asylum claims). The reason is that the court found that the BIA misstated one of the petitioner’s particular social groups, such that (according to the circuit court):
In sum, the BIA rejected a PSG of its own devising and not the social group Ferreira advanced. Its characterization substantively altered the meaning of Ferreira’s proffered PSG and amounts to legal error.
The court directed:
On remand, the BIA should carefully consider Ferreira’s gender-based PSG in light of our decisions in De Pena-Paniagua and Espinoza-Ochoa.
Both of those cited decisions were quite favorable to the petitioners.
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
*****************
Fear mongering and myth making by politicos of both parties, with the connivance of the media, deflect attention from the real problem: a dysfunctional U.S. asylum adjudication system that hugely and disingenuously over-rejects and under-protects, in addition to being too slow and unconstitutionally inconsistent. Thus, both parties intentionally skew the statistics against asylum seekers and feed racially-driven nativist “talking points” about the border!
The BIA/OIL claim that the gender-based psg is not recognizable is utterly preposterous!It took me fewer than 5 minutes of internet research to find this very recent Trinidad government report recognizing that gender-based violence is an endemic and well-documented problem that disproportionately affects women and girls in Trinidad. While the report sets forth an “aspirational multi-year plan” to address the problem (“willing to protect”), there is no indication that the plan is reasonably effective at present (“but unable to do so at present”).
Here is some other “choice commentary” from Round Table members:
“A win is a win–again ‘calling’ the BIA on doing the wrong thing!”
“Great job, Team!! Let’s keep up this winning streak.”
“Wow – great! As Paul would say, another bad Garland/BIA Fiasco. Making up a psg and then denying relief because of it. Funny if it were not so tragic!“
“Yes, especially when they are telling IJs they can’t even determine what PSG fits the facts of the case unless the Respondent gets it just right! Yet they can make up whatever they want and then say it doesn’t fit the facts or isn’t cognizable!”
“When we were at the International Judges conference that [Paul] organized at Georgetown, all of the international judges said that gender was a recognized psg in their countries—even the countries where women are discriminated against and/or persecuted!”
“Like most of you, I am at a loss to understand how gender, alone, does not meet every requirement of PSG. The BIA position on this is inexplicable, and IMO, at minimum, borders on frivolous.“
Roger that! Intentionally ignoring the obvious and failing in the duty to consistently recognize and prioritize many easy grants of asylum and other protection is the “elephant in the room” for the U.S. justice system!
No wonder spineless politicos, judges, and the media want to shift attention away from their shared responsibility for a glaringly unjust and inept asylum system to blame the hapless victims of their collective failure — whose lives and futures are on the line!
The Executive Office for Immigration Review (EOIR) at the Department of Justice (DOJ) is seeking a highly-qualified individual to join our team of expert professionals who serve as Appellate Immigration Judges.
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.
This position is in the Board of Immigration Appeals, within the Executive Office for Immigration Review. The incumbent reports to a Deputy Chief Appellate Immigration Judge, who in turn reports to the Chief Appellate Immigration Judge.
Appellate Immigration Judges must apply immigration laws impartially, humanely, and equitably and ensure that all parties are treated with respect and dignity. They also must resolve cases expeditiously, in accordance with all applicable laws and regulations, and consistent with the Department’s priorities and policies.
Appellate Immigration Judges are commissioned to serve in formal, quasi-judicial proceedings to review the determinations of immigration judges in removal and related proceedings, and of certain officers of the U.S. Department of Homeland Security in visa petition proceedings and other matters. All Appellate Immigration Judges review the record on appeal, including briefs, exhibits, and transcripts, and hear oral argument when appropriate. An Appellate Immigration Judge may concur or dissent based on their view of any given case. The majority of the Appellate Immigration Judges’ duties fall into the general categories of removal proceedings, discretionary relief, claims of persecution, stays of removal, visa petitions, administrative fines, and bond and detention.
The majority of an Appellate Immigration Judge’s duties will be dedicated to the appellate work, but an Appellate Immigration Judge must also be qualified, and may be called upon, to conduct trial level proceedings in the role of an immigration judge.
Appellate Immigration Judges make decisions that are final, subject to appeal to the Federal courts. In connection with these proceedings, Appellate Immigration Judges exercise certain discretionary powers as provided by law and are required to exercise independent judgment in reaching final decisions.
Employment is contingent upon the completion and satisfactory adjudication of a background investigation.
Selective Service Registration is required, as applicable.
Moving and Relocation Expense are not authorized.
You must have relevant experience (see “Qualifications” below.)
Qualifications must be met by the closing date of the announcement.
If selected, you must file a financial disclosure statement in accordance with the Ethics in Government Act of 1978.
You must receive your Federal salary by Direct Deposit (to a financial institution of their choosing).
Qualifications
In order to qualify for the Appellate 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 formal hearings or trials involving litigation and/or administrative law at the Federal, State or local level. Qualifying litigation experience involves cases in which a complaint was filed with a court, or a charging document (e.g., indictment or information) was issued by a court, a grand jury, or appropriate military authority. Qualifying administrative law experience involves cases in which a formal procedure was initiated by a governmental administrative body.
NOTE: Qualifying experience is calculated from the date of your first admission to the bar.
In addition, 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 Appellate 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.
There is no formal rating system for applying veterans’ preference to Appellate Immigration Judge appointments in the excepted service; however, the Department of Justice considers veterans’ preference eligibility as a positive factor in Appellate 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 “Required Documents” section.)
Conditions of Employment: Only U.S. Citizens or Nationals are eligible for employment with the Executive Office for Immigration Review. Dual citizens of the U.S. and another country will be considered on a case-by-case basis. All DOJ applicants, both U.S. Citizens and non-citizens, whose job location is with the United States, must meet the residency requirement. For a total of three (not necessarily consecutive years) of the five years immediately prior to applying for a position, the applicant must have: 1) resided in the United States; 2) worked for the United States overseas in a Federal or military capacity; or 3) been a dependent of a Federal or military employee serving oversees.
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.
Additional Information: The COVID-19 vaccination requirement for Federal employees pursuant to Executive Order 14043 does not currently apply. Some jobs, however, may be subject to agency- or job-specific vaccination requirements, so please review the job announcement for details. To ensure compliance with an applicable preliminary nationwide injunction, which may be supplemented, modified or vacated, depending on the course of ongoing litigation, the Federal government will take no action to implement or enforce the COVID-19 vaccination requirement pursuant to Executive Order 14043 on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees. Therefore, to the extent a Federal job announcement includes the requirement that applicants must be fully vaccinated against COVID-19 pursuant to Executive Order 14043, that requirement does not currently apply.
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Benefits
How You Will Be Evaluated
You will be evaluated for this job based on how well you meet the qualifications above.
You will be evaluated for this job based on how well you meet the qualifications above.
Applicants meeting the minimum qualifications stated above will be further evaluated to determine those who are best qualified. This determination will be based, in part, on the following Quality Ranking Factors (QRFs), which need to be addressed as part of the application package.
Ability to demonstrate the appropriate temperament to serve as a judge. Appellate Immigration Judges need to possess traits such as compassion, decisiveness, open-mindedness, courtesy, patience, freedom from bias, and commitment to equal justice under the law. Additionally, individuals in this role are expected to exercise discretion, and articulate how that discretion is being exercised, in complex, sensitive, high-pressure and/or emotional situations. A strong candidate demonstrates excellent analytical, decision-making, and writing abilities.
Litigation or adjudication experience, preferably in a high volume judicial or administrative context. Appellate Immigration Judges often must balance a variety of skills that can include managing a high volume of cases, drafting decisions, and reviewing an administrative record at the appellate level. It is vital that a candidate is able to manage a high-volume docket under tight deadlines without compromising quality.
Experience conducting administrative hearings or adjudicating administrative cases. Appellate Immigration Judges are expected to decide difficult or complex issues, particularly those that impact people’s lives. Prior adjudication experience in other tribunals – Federal, state, local, military or other court systems – is ideal, however, adjudications experience may be drawn from non-courtroom settings. For candidates who have limited adjudications experience, significant litigation experience before EOIR or extensive litigation experience in settings comparable to an immigration court setting may be considered.
Experience handling complex legal issues. Immigration law often involves handling complex legal issues. This role requires being able to work through complicated fact patterns and issues, novel areas of the law, as well as learning, adapting to, and incorporating changes in the law.
Knowledge of immigration laws and procedures. In this role, depth and/or volume of immigration law experience is important. Candidates should have meaningful experience applying complex immigration law, which can include representing non-citizens or the Federal government in matters involving complex or diverse immigration laws, adjudicating immigration matters, legislative or administrative advocacy on immigration policy issues, academic or clinical experience, and other similar work that involves routine analysis and application of immigration law.
To apply for this position, you must provide a complete Application Package by 11:59 PM (ET) on 04/12/2024, the closing date of this announcement, which includes:
Your Resume documenting seven (7) years experience since being admitted to the bar.
A complete online Assessment Questionnaire.
Document(s)addressing the Quality Ranking Factors (QRFs) listed above.
A Writing Sample demonstrating your ability to author legal documents (10 pages, maximum; an excerpt of a longer document is acceptable).
Current or former Federal employees must provide copies of their most recent and their latest SF-50, Notification of Personnel Action.
Other Supporting Documents, if applicable:
Veterans’ Preference Documentation: Although the veterans’ preference point system does not apply to this position, we accept preference claims and adjudicate such claims per the documentation provided. Note: If claiming 5-point veterans’ preference, include a DD-214 or statement of service. If claiming 10-point veterans’ preference, include an SF-15 and documentation required by that form, VA or military letter dated 1991 or later, and DD-214.
Any other supporting documentation required for verification as described in the announcement.
Tips for your resume:
Ensure that your resume contains your full name, address, phone number, email address, and employment information.
Each position listed on your resume must include: From/To dates of employment (MM/YYYY-MM/YYYY or MM/YYYY to Present); agency/employer name; position title; Federal grade level(s) held, if applicable; hours, if less than full time; and duties performed.
In addition, any experience on less than a full time basis must specify the percentage and length of time spent in performance of such duties.
Tips for addressing QRFs:
Applicants should use narrative form to address each of the five (5) QRFs. They must be written in a separate document indicating the by-number of the specific QRF being addressed.
Successful applicants will address all of the QRFs. If you do not have the specific experience addressed in a QRF, we encourage you to write about a similar skill, ability, knowledge, or experience.
Applicants should be thorough in addressing each QRF. This includes:
Approximate number of cases or matters handled in a given period of time.
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Specific examples of the types of cases (asylum application, pleas, settlement, bench trial, jury trial, etc.).
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Learn more about
Executive Office for Immigration Review
If you are interested in a rewarding and challenging career, this is the position for you!
The Executive Office for Immigration Review seeks highly-qualified individuals to join our team of expert professionals in becoming a part of our challenging and rewarding Agency. The primary mission of the Executive Office for Immigration Review (EOIR) is to adjudicate immigration cases by fairly, expeditiously, and uniformly interpreting and administering the Nation’s immigration laws. Under delegated authority from the Attorney General, EOIR conducts immigration court proceedings, appellate reviews, and administrative hearings. EOIR consists of three adjudicatory components: The Office of the Chief Immigration Judge, which is responsible for managing the Immigration Courts where Immigration Judges adjudicate individual cases; the Board of Immigration Appeals, which primarily conducts appellate reviews of these Immigration Judge decisions; and the Office of the Chief Administrative Hearing Officer, which adjudicates immigration-related employment cases.
Learn more about what it’s like to work at Executive Office for Immigration Review, what the agency does, and about the types of careers this agency offers.
Yes, EOIR is a mess! But, it’s not going to get any better without better judges, particularly at the BIA which sets precedents and should (even if it now doesn’t) maintain nationwide consistency among Immigration Judges and articulate and implement “best judicial practices.”
Quite disappointingly and outrageously, the Biden Administration and A.G. Garland have failed to “clean house” and bring long overdue due process and judicial reforms to EOIR. So, the NDPA will have to go about it “the old-fashioned way:” one judicial vacancy at a time!
What if we had a BIA that:
Believed due process and fundamental fairness are “job one;”
Insured correctness and quality over “generating numbers;”
Institutionalized protection, not rote rejection, of asylum seekers;
Built on past precedents for properly generous treatment of asylum seekers like INS v. Cardoza-Fonseca, Matter of Mogharrabi, and Matter of Kasinga, rather than ignoring, or looking for artificial ways to limit them;
Issued precedents insuring early identification and consistent granting of many current and repetitive asylum applications;
Looked for ways to simplify, rather than overcomplicate and obfuscate, legal guidance;
Had “zero tolerance” for anti-immigrant, anti-asylum, racial, gender, and other biases among Immigration Judges (e.g., no more “asylum free zones”);
Refused to allow the Immigraton Court system to be misused and abused as a “deterrent” or “an adjunct of DHS Enforcement;”
Developed and enforced “best judicial practices;”
Prioritized facilitating pro bono representation as a key element of due process;
Aspired to make the “former vision of EOIR” — “through teamwork and innovation be the world’s best administrative tribunals guaranteeing fairness and due process for all” — a reality, rather than a cruel hoax!
Of course, one judge can’t do it all! But, there are plenty of great judges in the current EOIR system, at both levels, who need reenforcement and reaffirmation! Rebuilding the EOIR system so that it is a real, due-process-oriented, subject-matter-expert court that insures justice — rather than institutionalizing injustice — has to start somewhere! Fixing EOIR would also help save the entire faltering Federal Judicial system.
If the NDPA doesn’t do it, who will? Certainly not Biden, Harris, Garland or their minions— or at to least not without being pushed from within and dragged kicking and screaming from without.
Waiting for Godot (a/k/a Merrick Garland) to fix EOIR isn’t going to cut it! Naseer’s Motley Group in The Rose Bowl Merlaysamuel Creative Commons Attribution-Share Alike 3.0 Waiting for Godot in Doon School.jpg Copy [[File:Waiting for Godot in Doon School.jpg|Waiting_for_Godot_in_Doon_School]] Copy December 8, 2011So, don’t “wait for Godot” to fix this broken system! Clue: He’s not coming! Get those applications in now!
Better judges for a better America! Sooner, rather than later!
“This court grants a petition for review of an agency denial of asylum, withholding of removal, and CAT relief only under the most extraordinary circumstances. See Gutierrez-Alm, 62 F.4th at 1194; Sharma v. Garland, 9 F.4th 1052, 1060 (9th Cir. 2021). This is one of those rare instances. For the reasons discussed above, the agency’su adverse credibility determination is amply supported by substantial evidence. But the IJ failed to properly consider and evaluate the evidentiary weight of multiple documents Kalulu offered into the record independent of her testimony, and the BIA made clear factual errors when it reviewed those documents. Because the agency’s decision therefore “cannot be sustained upon its reasoning,” this case must be remanded for the IJ or BIA to reconsider its decision. De Leon, 51 F.4th at 1008 (internal quotation marks omitted). On remand, the agency must reexamine the three declarations and medical document discussed in section III(b) to consider whether they, when properly read alongside other nontestimonial evidence in the record, independently prove Kalulu’s claims for asylum or withholding of removal. This court takes no position on whether those documents provide such proof or whether Kalulu merits any of the relief for which she applied.”
Dissent: “The majority ignores our precedent and instead concludes that the agency would have reached the same adverse credibility determination in the absence of these unsupported findings. That approach contravenes the REAL ID Act, binding circuit precedent, and fundamental principles of administrative law. I respectfully dissent.”
Many congrats to Amalia, Judah, and their NDPA team!
As my friend Dan often says about EOIR, “you can’t make this stuff up!”🤯
Well, the panel judges all agree that the BIA is wrong! It’s just a question of HOW wrong.
Note Van Dyke is a Trump appointee, and one of the most far-right judges on the bench. Murphy is a Bush II appointee. Sanchez (concur/dissent) is a Biden appointee.
The BIA has to have worked overtime to do such a miserable job that even Van Dyke couldn’t paper it over, although he took a stab at it!
The majority decision is basically a restatement of the 4th Circuit’s pre-REAL ID precedent Camara v. Ashcroft, 378 F.3d 361 (4th Cir. 2004). That case materially affected practices, changed results, and saved lives during my tenure at the “Legacy”Arlington Immigration Court!
So, it’s not that requiring that testimony be evaluated along with independent, non-testimonial evidence is something “new” or “rocket science!”🚀 Heck, it’s even incorporated in the REAL ID Act. This is “Immigration 101!” Yet, theBIA came up woefully short while Garland ignores fundamental flaws in his judicial system.
It’s well worth looking at a bit more of Judge Gabriel Sanchez’s vigorous separate opinion:
Petitioner Milly Kalulu, a native of Zambia, alleges she
was persecuted because she is a lesbian in a country that
criminalizes same-sex relationships. When her relationship
with a woman was discovered by her girlfriend’s brothers,
she was beaten, whipped, injected with an unknown
substance, stabbed in the chest, doused with gasoline, and
threatened with death over several violent encounters.
Kalulu submitted documentary evidence corroborating her
claims, including a copy of her medical report, a declaration
from her aunt in California, and declarations from several
Zambians who witnessed the attacks on her. The agency,
however, dismissed this evidence based on unsupportable or
trivial grounds.
I agree with the majority that the agency failed to
consider whether Kalulu’s supporting evidence
independently proves her claims for asylum, withholding of
removal, and relief under the Convention Against Torture
(CAT). “Where potentially dispositive testimony and
documentary evidence is submitted, the BIA must give
reasoned consideration to that evidence.” Cole v. Holder,
659 F.3d 762, 772 (9th Cir. 2011); see also Antonio v.
On the basis of his robust SOTU performance, I have every confidence that President Biden can more than adequately defend himself from the “Hur report.” Sadly, the same can’t necessarily be said for all the asylum seekers and other immigrants harmed by Garland’s indifference to systemic injustice in his “courts!”
This is the real “immigration crisis” that threatens our legal system and our democracy!
Rev. Craig Mousin PHOTO: DePaul WebsiteHeidi Altman Director of Policy National Immigrant Justice Center PHOTO: fcnl.org
Craig on Linkedin:
Instead of listening to our two primary presidential contenders vie over which one is tougher on immigration, let’s consider reframing the debate for a meaningful immigration reform that benefits our nation instead of depriving it of resources wasted on ineffective enforcement policies:
Let’s Reshape Immigration Policy
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Today we talk about 10 points to reshape and improve immigration policy in the USA. We used the National Immigrant Justice Center’s 10 points as a backdrop for our discussion:
Today we talk about 10 points to reshape and improve immigration policy in the USA. We used the National Immigrant Justice Center’s 10 points as a backdrop for our discussion:
Listen to the podcast and get a copy of NIJC’s “ 10 points” at the above links.
Thanks, Craig, for highlighting the work of my friend and former Georgetown Law colleague Heidi Altman, Director of Policy at NIJC. Heidi is the embodiment of what real leadership, innovation, humane, creative thought on immigration and the border looks like. She stands in dramatic contrast to the pathetic fear mongering (Trump) and fear of standing up for values (Biden) “leadership” coming from our candidates and reflected in the failure of politicos of both parties to embrace humane, cooperative, beneficial solutions for those seeking asylum at the border.
Heidi is a particularly great representative and leadership role model for Women’s History Month.
I had additional thoughts on this podcast:
Better judges, not just more judges. To be effective and efficient, EOIR judges at both levels must be recognized experts in asylum, human rights, and due process who are not afraid to set positive precedents, grant protection to those who qualify under a properly generous interpretation of the law, simplify evidentiary requirements and state them in clear, practical terms, establish and enforce best practices, and steadfastly oppose the political abuse of the Immigration Courts as “deterrents” or as extensions of DHS enforcement. The failure of Garland to clean house at EOIR, particularly the BIA, and of Mayorkas to do likewise at the Asylum Office has been a national disaster driving much of the “disorder at the border.”
Invest in VIISTA Villanova and other innovative programs to expand pro bono and low bono representation.Seehttps://www1.villanova.edu/university/professional-studies/academics/professional-education/viista.html. Reach beyond lawyers and NGOs to train students, retirees, social justice advocates, and “ordinary citizens” who want to help by becoming “Accredited Representatives” for “Recognized Organizations” and represent asylum seekers before the AO and EOIR. The programs is top-notch, online, and “scalable.” The Biden Administration’s failure to tap into it and “leverage” it is another dramatic failure of leadership.
Better leadership needed in the Biden Administration. As we have seen over the last three years, all the great ideas (and there is a plethora of them) in the world are meaningless without the dynamic, courageous, effective leadership to make it happen! Garland, Mayorkas, the White House Domestic Policy Office, and the Biden Campaign are dramatic negative examples of folks who lack the hands-on expertise, courage, creativity, and skills to lead on effective administrative immigration reform. I endorse Heidi’s proposal to create a White House Task Force. But, without expert, dynamic, empowered leadership, that Task Force will be ineffective. (Take it from me, over 35-years in the USG, I was on lots of “task forces” and other “action/study groups” whose voluminous reports and well-meaning proposals went directly into a dusty file cabinet or paper shredder.) Think Julian Castro, Dean Kevin Johnson, Judge Dana Marks, Professor Karen Musalo, Beatriz Lopez, Professor Michele Pistone, Anna Gallagher, Camille Mackler, Professor Stephen Yale-Loehr, Heidi Altman, Alex Aleinikoff, Mary Meg McCarthy, Paula Fitzgerald, et al — any of these folks, or a combination, or other “battle tested experts” like them would be head and shoulders over the inept gang advising on and “implementing” (and I use this term loosely) immigration policy for the Administration and the campaign. Leadership counts! And, time’s a wasting to start fixing this asylum system before the election!
Acquiescence gets Dems the same place as activist racism. I “get” that the nativist border agenda now being shoved down our throats by both campaigns is driven by GOP fear-mongering and Dem acquiescence. That’s classic Jim Crow! I doubt that every White person south of the Mason-Dixon Line during my youth was overtly racist. Yet, a whole bunch of them were happy to acquiesce in segregation (and worse) because it served their political, social, or business purposes. For example, ”I’ve personally got nothing against Blacks, but if I hired one at my store all my business would go elsewhere.” In calling for “bipartisan” joining with the Trump-generated racist proposal to “close theborder,” Biden and many of his supporters are basically endorsing a lawless, cruel, anti-humanitarian program that couldn’t succeed if enacted. Does that he might be doing it as an act of “political strategy,” “shifting the blame,” or “one-upmanship,” rather than “genuine” racism, xenophobia, and hate, like Trump and MAGA nation, somehow make it more palatable? Not to me!
Stop the candidate’s negative campaigning. If Joe can’t think of anything better to say about human rights and the border than to point fingers at the GOP and try and match Trump’s cruelty, lawlessness, and stupidity on the issue, better he say nothing at all.
Don’t get suckered by “whataboutism.” Undoubtedly, there are those in our community genuinely concerned that helping asylum seekers resettle and succeed will deflect resources and attention from existing problems like homelessness and poverty. Nevertheless, few, if any, of my friends and acquaintances who have actually spent their lives, or substantial portions thereof, helping the less fortunate in our communities express this fear. They believe that that if we treat all of our fellow humans as humans, we can expand opportunities and economic activities across the board so that there will be enough for everyone. It’s aderivation of something we say every Sunday at the community church we attend: “All are welcome at Christ’s table.” Also, asylum seekers and other migrants disproportionately give back to communities, particularly low income communities, rural communities, or others in need. By contrast, many of those raising these fears are the same GOP folks who steadfastly want to cut meals for kids, slash after-school programs, defund proven-to-work programs that reduce poverty, and restrict or limit other existing aid programs. It’s not like these folks would “repurpose” any of the very limited funds spent on assisting migrants to helping the homeless or the less fortunate. No, they would almost certainly spend it on more deadly, yet ineffective walls, “civil” prisons, unnecessary tax cuts for the wealthy, and/or more counterproductive, wasteful, costly border militarization. Don’t get suckered by their “crocodile tears” for the poor and needy!
Contrary to the BS 💩 that is peddled every day by the presidential candidates, spineless politicos of both parties, and the mainstream media, the border is solvable with common sense, humane, innovative legal reforms. More cruel, wasteful, and essentially mindless enforcement and restriction is NOT the answer, nor will it ever be!
SAN DIEGO (AP) — A 53-year-old union of immigration judges has been ordered to get supervisor approval to speak publicly to anyone outside the Justice Department, potentially quieting a frequent critic of heavily backlogged immigration courts in an election year.
The National Association of Immigration Judges has spoken regularly at public forums, in interviews with reporters and with congressional staff, often to criticize how courts are run. It has advocated for more independence and free legal representation. The National Press Club invited its leaders to a news conference about “the pressures of the migrant crisis on the federal immigration court system.”
The Feb. 15 order requires Justice Department approval “to participate in writing engagements (e.g., articles; blogs) and speaking engagements (e.g., speeches; panel discussions; interviews).” Sheila McNulty, the chief immigration judge, referred to a 2020 decision by the Federal Labor Relations Authority to strip the union of collective bargaining power and said its earlier rights were “not valid at present.”
The order prohibits speaking to Congress, news media and professional forums without approval, said Matt Biggs, president of the International Federation of Professional & Technical Engineers, an umbrella organization that includes the judges’ union. He said the order contradicted President Joe Biden’s “union-friendly” position and vowed to fight it.
“It’s outrageous, it’s un-American,” said Biggs. “Why are they trying to silence these judges?”
. . . .
**************************
Read the complete article at the above link.
Ukase Public Domain
Courtesy of my friend Dan Kowalski over at LexisNexis, here’s the text of what is being called the “McNulty Ukase:”
From: Chief Immigration Judge, OCIJ (EOIR) Sent: Thursday, February 15, 2024 11:53 AM To: Tsankov, Mimi (EOIR) ; Cole, Samuel B. (EOIR) Cc: Weiss, Daniel H (EOIR) ; Luis, Lisa (EOIR) ; Young, Elizabeth L. (EOIR) ; Anderson, Jill (EOIR) <
Subject: Public Engagements and Speaking Requests
Dear Judges Cole and Tsankov:
From recent awareness of your public engagements, I understand you are of the impression that your positions in the group known as the National Association of Immigration Judges (NAIJ) permit you to participate in writing engagements (e.g., articles; blogs) and speaking engagements (e.g., speeches; panel discussions; interviews) without supervisory approval and any Speaking Engagement Team review your supervisor believes necessary. The agency understands this is a point of contention for you, but any bargaining agreement related to that point that may have existed previously is not valid at present. Please consider this email formal notice that you are subject to the same policies as every EOIR employee. To ensure consistency of application of agency policies—and prevent confusion among our staff—please review the SET policy and work with your supervisor to ensure your compliance with it, effective immediately.
Thank you,
Sheila McNulty
Chief Immigration Judge
Executive Office for Immigration Review • Department of Justice
*******************
It’s perhaps no surprise. EOIR is a badly failing agency with an incredible ever-growing backlog of over 3 million cases, no plan for reducing it, antiquated procedures, a disturbing number of questionably-qualified judges (many holdovers from the Trump era), grotesque decisional inconsistencies, poor leadership, a tragic record of ignoring experts’ recommendations for improvements, and that produces a steady stream of sloppy, poorly-reasoned, or clearly erroneous decisions on the “nuts and bolts” of asylum and immigration law that are regularly “roasted” by Circuit Judges across the political spectrum.
In this context, their desire to strangle criticism from those actually trying to provide justice and due process, against the odds — the sitting Immigration Judges who see the management and systemic problems on a daily basis — is perhaps understandable, if not defensible.
At least where immigration is involved, the Biden Administration’s rhetoric and promises on being “labor friendly” and supportive of Federal workers is unfortunately reminiscent of its pledge to treat asylum seekers and immigrants fairly and humanely and to distance themselves from the racially-driven xenophobic policies of the Trump Administration.
While the NAIJ may be “gagged,” the fight about working conditions and the unrelenting dysfunction at EOIR is far from over!
Sources close to the NAIJ’s parent union, the IFPTE, tell me that the “campaign to call out this atrocity” is “just getting started.”
In statement issued yesterday, IFPTE President Matt Biggs expressed outrage and raised the possibility that the Administration could face tough Congressional questioning on the gag order, which also applies to communications with legislators and legislative staff:
“Just because a highly partisan decision by the FLRA’s board, that is likely to be reversed, limited NAIJ’s ability to collectively bargain, doesn’t mean that NAIJ and its national union IFPTE can’t meet and confer with the DOJ, provide legal services to our members, have officers serve on professional committees, speak to the media, offer training and other services a union provides,” says Biggs. “In fact, for the past four years, NAIJ, with assistance from IFPTE, has provided all of that. We give judges a voice. Judge Tsankov regularly speaks to reporters and recently testified before Congress. This is an attempt to limit what the press and public know by placing a gag over the mouths of the judges on the front lines. The only thing that has changed in the past four years is an overreach by a federal bureaucrat.”
NAIJ has repeatedly sounded the alarm on the size of the backlog, the need for translators, raised courtroom security concerns and other issues related to immigration adjudication. It has been a strong advocate for judicial independence and questioned why the immigration courts are attached to the Department of Justice, rather than being placed in an independent agency. The National Press Club recently invited both Tsankov and Cole to speak at a news conference on “the pressures of the migrant crisis on the federal immigration court system.”
“We believe that this order and un-American, anti-union act of censorship by McNulty will lead to Congressional hearings,” said Biggs. “Until this matter is resolved, the judges’ national union, IFPTE, will act as the voice for the immigration judges. McNulty may try, but the nation’s immigration judges won’t be silenced.”
As noted by Biggs, over the years, NAIJ leadership has frequently been asked to testify before Congress and meet with staff as an independent counterpoint to the “party line, everything is under control” nonsense that has become a staple of DOJ politicos and EOIR bureaucrats in administrations of both parties in dealing with the Hill as the backlog continued to explode in plain view!
Although the Biden Administration has curiously shown little hesitation in throwing asylum seekers, human rights, and advocates who were a key support group in 2020 “under the bus” in an ill-advised attempt to “out-Trump-Trump” on stupidity and inhumanity at the border, the IFPTE could be a different animal. Representing more than 80,000 government professionals, the union endorsedBiden/Harris in 2020.
With a hotly-contested, close election underway, Biden can ill-afford to alienate more key support groups, particularly among organized labor. Why the “geniuses” in the White House and the Biden/HarrisCampaign think that going to war with your base is a great, “winning” strategy, is beyond me! Even Donald Trump recognizes the benefit of energizing behind him a loyal and committed (although horribly misguided) “base!”
*****************
Tellingly, and illustrating this issue’s cosmic importance, the Ohio Immigrant Alliance just released its blockbuster report documenting systemic racism at EOIR entitled “The System Works As Designed: Immigration Law, Courts, & Consequences” —
This report is based on the experiences of immigrants, lawyers, and immigration court observers, as well as external research. “The System Works as Designed” reveals how U.S. immigration laws, and the courts themselves, were planted on a foundation of white supremacy, power imbalance, and coercive control. For those reasons, they fail to protect human dignity and lives on a daily basis.
While the operations of the immigration courts have frequently been ignored, their outcomes could not be more consequential to immigrants and their loved ones. This report lifts the curtain.
Racism in Immigration Law and Policies
It is clear from the congressional record, and laws themselves, that the Chinese Exclusion Act, Undesirable Aliens Act, Immigration and Nationality Acts of 1924 and 1952, and other laws played on racial and ethnic stereotypes to limit mobility and long-term settlement of non-white immigrants.
The Immigration and Nationality Act of 1965 attempted to address some imbalances, but the Illegal Immigration Reform and Immigrant Responsibility Act basically broke the already contradictory set of laws, making them a landmine for immigrants attempting to seek safety or build new lives here. The REAL ID Act and other post-9/11 laws and policies tightened the vise.
Policy choices made by presidents from every modern administration have attempted to coerce, repress, and reject migration, a basic human survival act, instead of building safe paths people can use.
Death Penalty Consequences, Traffic Court Rules
The U.S. immigration courts were designed to offer the illusion of justice, while failing the people they purport to protect. Dysfunctional elements include:
A quasi-judicial structure that answers to the U.S. Attorney General in the Executive Branch and is not an independent judiciary; is blatantly influenced by ideology; and promotes quantity over quality decision making.
Power imbalances, such as the fact that the government is represented by attorneys 100% of the time, while immigrants often argue their cases without a legal guide. Detained immigrants are forced to “attend” their hearings via grainy video feed, while judges and counsel are together in courtrooms miles away. Yet immigration judges frequently deny requests for expert witnesses to appear remotely, citing challenges with communication and credibility. The deck is stacked.
4
Also, by detaining someone in jail for the duration of their civil immigration case, the government makes it harder for them to get a lawyer to help. The government is also using the psychological, financial, and physical toll of detention to try to break someone’s spirits and get them to give up.
Subjective “credibility determinations,” rife for bias and abuse. A case can be denied based on a judge’s feeling about the immigrant’s testimony, not facts. This is the barn door through which all manner of ignorance, bias, and ideology storm in.
Legal landmines make it harder for people who qualify for asylum to receive it, such as the one-year filing deadline; illogical definition of material support to terrorism; and the Biden asylum ban.
Differing standards of accuracy. Immigrants may be furnished interpreters who speak the wrong dialect. Judges and DHS attorneys may make inaccurate statements about an individual’s evidence or the political conditions of their country. The hearing transcripts can be riddled with gaps instead of key facts. Yet life-altering decisions are made based on this record, and an immigrant has little to no opportunity to object, correct, or explain.
Consider the experience of M.D. a Black Mauritanian man seeking asylum in the U.S. after the late 1980s/early 1990s genocide. An immigration judge questioned his credibility because M.D. did not provide “evidence” that he is Black and Fulani, a persecuted group in Mauritania. M.D. addressed the court, speaking in Fulani, and said, “I am the evidence. I speak Fulani and I am Black.”
The English transcript of M.D.’s hearing is riddled with “(unintelligible)” in place of the names of relatives and locations where important events, such as the murder of his father, took place. There was an interpreter in the room who could have spelled the words out to make the record more accurate and credible. Instead, the record shows big holes in place of material facts, while M.D. was accused of not providing “proof” that he is Black, deemed not credible, denied asylum.
In another case, a Black man seeking asylum was found “not credible” because his interpreter first used the word “canoe” when describing his method of escape, and later said “little boat.” But in his language and, one can argue, in common English, they are the same thing.
Situations like these, memorialized in the case record, are carried into the appeals process where rehearings typically do not take place, compounding the injustices of these mistakes.
Many of the report’s observations echo some aspects my own writings and public speeches over the years since I retired from the bench in June 2016. For example, here’s my speech “JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW“ from from an FBA Conference in Austin, Texas in May 2019:
While I was speaking during the Trump Administration, sadly, many of my observations remain equally true today, as the Biden Administration and AG Garland have quite inexcusably failed to rise to the occasion by instituting long-overdue due process and quality control reforms at EOIR. Yet, I am struck by how even then, as today, I found reasons to continue to be proud of the accomplishments of the “New Due Process Army” (“NDPA”) and to urge others to continue tobelieve that the “light of due process will eventually be relit” at EOIR and that history will deal harshly with the xenophobic urges and anti-asylum attitudes that too often drive policy in administrations of both parties:
Today, the Immigration Courts have become an openly hostile environment for asylum seekers and their representatives. Sadly, the Article III Courts aren’t much better, having largely “swallowed the whistle” on a system that every day blatantly mocks due process, the rule of law, and fair and unbiased treatment of asylum seekers. Many Article IIIs continue to “defer” to decisions produced not by “expert tribunals,” but by a fraudulent court system that has replaced due process with expediency and enforcement.
But, all is not lost. Even in this toxic environment, there are pockets of judges at both the administrative and Article III level who still care about their oaths of office and are continuing to grant asylum to battered women and other refugees from the Northern Triangle. Indeed, I have been told that more than 60 gender-based cases from Northern Triangle countries have been granted by Immigration Judges across the country even after Sessions’s blatant attempt to snuff out protection for battered women in Matter of A-B-. Along with dependent family members, that means hundreds of human lives of refugees saved, even in the current age.
Also significantly, by continuing to insist that asylum seekers from the Northern Triangle be treated fairly in accordance with due process and the applicable laws, we are making a record of the current legal and constitutional travesty for future generations. We are building a case for an independent Article I Immigration Court, for resisting nativist calls for further legislative restrictions on the rights of asylum seekers, and for eventually holding the modern day “Jim Crows” who have abused the rule of law and human values, at all levels of our system, accountable, before the “court of history” if nothing else!
Eventually, we will return to the evolving protection of asylum seekers in the pre-2014 era and eradicate the damage to our fundamental values and the rule of law being done by this Administration’s nativist, White Nationalist policies. That’s what the “New Due Process Army” is all about.
That brings me back to two of my “key takeaways” from the Ohio Immigrant Alliance Report.
First: “Withholding is a true limbo status, though better than being sent back to certain death.” Skillfully and aggressively using the system to save lives, in any way possible, is job one. A life saved is always a victory!
Second, as the report concludes:
Solutions exist, but they require policymakers and legislators to listen to the people with direct, personal experience. Ramata, cited earlier in this report, suggests quicker approval of cases found credible at the outset. Aliou wants judges to put more stock in migrants’ testimony, understanding that persecuting governments are not credible sources about their own abuse. Jennifer, one of the immigration lawyers we interviewed, suggested that Black immigrant organizations and the American Immigration Lawyers Association be involved in crafting a new direction, citing their extensive expertise with how the system works—and fails people.
Bill, another immigration lawyer interviewed for this report, suggests taking a page from the refugee resettlement program when it comes to verifying facts about a case. “Social workers and private investigators [could] interview people and research documents and try to … verify whether [they’re] telling the truth or not,” he said. Bill suggests employment counselors, ESL teachers, and others with specialized expertise could also assist in the processing of cases.
Most importantly, the asylum and immigration system must be reoriented toward prioritizing safety and resettlement, rather than deportation as the default outcome. The forthcoming report, “Behind Closed Doors: Black Migrants and the Hidden Injustices of US Immigration Courts,” will explore these and other solutions.
As I have observed many times, despite the “national BS” on asylum and immigration being traded by Trump and Biden, and the legislative gridlock, there are still plenty of readily available, non-legislative solutions out there that would dramatically improve due process, justice, and the life-saving capacity of the EOIR system. While no single one of them is a “silver bullet” that would solve all problems overnight, each is an important step in the right direction. Taken together, they would substantially improve the quality and quality of justice overall in our U.S. legal system and, perhaps, in the process, save our republic from demise.
🇺🇸 Due Process Forever!
PWS
03-06-24
This article has been revised to include an excerpt from the IFPTE press release.
FULL DISCLOSURE: I am a proud retired member of the NAIJ.
Piper French reports for Intelligencer via Apple News:
Nilu Chadwick recognizes some of the children’s names right away. Chadwick, a lawyer for Kids in Need of Defense, has spent the past five years poring over lists of families separated under the Trump administration’s “zero tolerance” policy whose cases have yet to be resolved. Some of the children’s names stand out because she crossed paths with them back in 2018, when she represented them at their immigration hearings after they were torn from their parents’ side at the southern border. Those names always remind her of what she witnessed that year. The eerie silence of the children’s shelters. The kids so young that they couldn’t even explain who they were or where they came from. The hearing she had to pause in order to soothe a client with a nursery rhyme. Then there are the names that have simply grown familiar through repetition: the children whose cases appeared on the lists years ago and remain open.
The process of reunifying families separated under “zero tolerance” began in June 2018, two months after the policy was officially implemented. The ACLU had filed a class-action lawsuit on behalf of separated families, Ms. L. v. U.S. Immigration and Customs Enforcement, and during the litigation, a federal judge halted Trump’s policy and ordered its victims reunified within 30 days. Some of these reunifications were relatively straightforward. The government had records of around 2,800 separated families, and most of those parents and children were still in the U.S. — maybe they’d been sent to separate ICE facilities or the parents were in detention while their children had been placed in the custody of the Office of Refugee Resettlement. But for about 470 families, the parents had already been deported. When the Trump administration declined to track them down, Lee Gelernt, the head lawyer for the plaintiffs, stood up in court and said the ACLU would do it. A steering committee was put together comprising a team from the New York law firm Paul, Weiss and representatives from three NGOs, including Kids in Need of Defense and the organization Justice in Motion. “Little did I know what we were taking responsibility for,” Gelernt told me.
The first hurdle the committee faced was the total disorganization with which “zero tolerance” had been implemented. “There was no intention of reuniting families, and so they didn’t design the system to be able to keep track,” Nan Schivone, Justice in Motion’s legal director, told me. The agencies involved — Customs and Border Protection, which took families into custody; ICE, which oversaw their detainment; the ORR, which was responsible for the separated children — didn’t have a comprehensive system to share data with one another, nor did they always keep records linking parents with their children. If children were released from ORR custody into the care of family or friends, the government did limited follow-up. “We give you a luggage tag for your luggage,” said Gisela Voss, a former board member of Together & Free, which supports families seeking asylum. “We separated parents from their kids and didn’t give them, like, a number.”
It took two months, until August 2018, for the administration to provide the steering committee with the phone numbers of the deported parents; a quarter of the numbers were missing. The committee began its search, making calls and performing social-media investigations. Then, in January 2019, the HHS Office of Inspector General revealed that more families had been separated than the Trump administration had previously disclosed. Nine months later, the Justice Department finally produced those names. There were 1,500 of them, and the vast majority of the parents had been deported.
. . . .
But the more that people who have dedicated their lives to this task continue to search, the more it becomes apparent that there will never be a clean resolution. There will always be another family. They know, too, that reunification solves only one problem. Families may be together again, but whether they will ever be whole is another question entirely.
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Read the complete article at the link.
No accountability whatsoever for Trump, Miller, Sessions and the other “human rights criminals” responsible for this. As is all too common in immigration and human rights “fails” by our immigration bureaucracy, the private, pro bono and NGO sectors are left to pick up the pieces after having to fight to uphold the rule of law.
The real story here is the blatant failure of our Government to uphold the rule of law for those seeking legal refugee and the irreparable effects of that failure. Somehow we have allowed politicos and the media to reverse that story line!
Multiple news sources report that President Biden is considering implementing executive action to try to close the U.S.-Mexico border, including to asylum seekers. It would be an extreme move, and a violation of the Refugee Act of 1980 and the country’s international obligation to protect those fleeing persecution. Only one other president — Donald Trump — has blatantly breached that obligation before. With the COVID-19 pandemic as a pretext, Trump invoked Title 42 of the U.S. Code, which allowed him to curb migration in the name of public health.
Biden, who came into office harshly criticizing his predecessor’s anti-immigrant policies, now seems poised to resurrect them. Administration sources concede that the president’s border plans are driven by politics, the belief that the immigration situation is “an election liability.”
This view is no surprise. We’ve been fed a narrative that the border is in crisis, overwhelmed by an unprecedented number of immigrants who pose a grave danger to the health and safety of the nation. But that narrative is false: The border is manageable, and rather than being a danger to Americans, immigrants are a net positive economically and socially.
. . . .
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Read the full op-ed at the link. Thanks for speaking out, Karen!
If only Biden & Harris would listen to migration experts rather than those who erroneously claim that violating asylum laws and stomping on human and civil rights is a “winning political strategy!”
This month, in case you missed it, there were several news headlines that once again proved that immigration is not just good for the U.S. economy, but freaking amazing. I’m not exaggerating – just take a look at the glorious reports revealed in February:
A Congressional Budget Office report found that, “The labor force in 2033 is larger by 5.2 million people, mostly because of higher net immigration. As a result of those changes in the labor force, we estimate that, from 2023 to 2034, GDP will be greater by about $7 trillion and revenues will be greater by about $1 trillion than they would have been otherwise.”
The most powerful economic rebound post-pandemic in the world is thanks to immigration in the U.S. The Washington Post reported, “About 50 percent of the labor market’s extraordinary recent growth came from foreign-born workers between January 2023 and January 2024, according to an Economic Policy Institute analysis of federal data.” Impressively, the surge in hires of immigrant workers filled “unprecedented gaps in the economy that threatened the country’s ability to recover from prolonged shutdowns.”
Even The New York Times piled on: “A resumption in visa processing in 2021 and 2022 jump-started employment, allowing foreign-born workers to fill some holes in the labor force that persisted across industries and locations after the pandemic shutdowns. Immigrants also address a longer-term need: replenishing the work force, a key to meeting labor demands as birthrates decline and older people retire.” The report also features a City Council president and member of the Plumbers and Steamfitters union in Indiana who says he would welcome migrants with open arms as his union is in desperate need of members.
Despite so many economists, industry and business leaders, and fellow Americans clamoring for immigrants to come to America and live and work in a small town in the middle of nowhere or somewhere, our politicians are stuck in the quicksand of deterrence, slowly sinking into policy and politics that muddle speeches and don’t make anyone want to save them.
Don’t get me wrong– I do want to save President Biden but, buddy, we need to work on those talking points. While I agree border communities and immigration officials are in dire need of resources and should be provided the proper funding and manpower, President Biden’s continual push for the Senate bipartisan bill was half futile. I get the political jab; use it, in fact, as it works against Republicans. But for the love of God stop trying to push the bill forward. It’s dead. Start planting the messaging seeds for better, more galvanizing solutions that address the border, resource welcoming communities, and deliver legal pathways. And above all center the economic and cultural contributions of Dreamers and immigrant families that Trump is eager to deport.
Humanizing the narrative is always a winning strategy. Recognizing the rewards of immigration and the hard work of immigrants, both in policies and messaging, speaks to those persuadable voters that Biden and Democrats must win over.
Where have you gone, John Fetterman? I roll my lonely eyes at you.
Now here’s someone who’s actually sinking. Yesterday, Senator John Fetterman (PA), on an apparent quest to prove he’s a tough border security hawk, said he would support H.R. 2 except for its aim to terminate DACA. He claims to have analyzed the bill, and if he did, then I am stupid for having ever thought he was a decent guy who understood the importance of immigration in America.
As a reminder, H.R. 2 is basically a Stephen Miller wet dream (I apologize for the imagery): it would (1) end legal representation for unaccompanied children and deport them faster, (2) shut down the asylum system, (3) give any DHS secretary the authority to deny every single migrant the right to seek asylum (in other words, permanent Title 42), (4) jail and detain immigrant families, (5) eliminate humanitarian parole, (6) punish and defund faith-based organizations and NGOs for supporting newly-arrived migrants, and (7) jail and penalize immigrants who overstay their visa. (Imagine if that last one were in place when Fetterman’s wife and mother-in-law had arrived in the U.S.)
Neither H.R. 2 nor the Senate bipartisan bill are “grand bargains” unless it’s a deal scored by a used car salesman hiding the 20% annual interest rate. When immigration is decidedly incredible for the economy, when immigrants are proudly working and thriving alongside their fellow American, when those seeking freedom and opportunity are willing to risk their lives for a leg up to work – work! – when businesses and communities are desperate for immigrants to fuel their future, our leaders should be grand-standing with a 21st century plan that embraces immigration and immigrants for all that they can do for America.
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Thanks for speaking truth to power, Beatriz!
While Trump and Biden trade barbs and disgracefully try to ”one up” each other as to who can be the most cruel, cowardly, and dumb on “bogus border security,” the real humanitarian and asylum processing crises go unaddressed; the most vulnerable continue to suffer at the hands of a country they want to help while saving their own lives. This is a potential “win-win” that our politicians refuse to embrace!
Texas will appeal to the too-often-lawless Fifth Circuit, so this saga is only beginning. But, at least this time the “good guys” struck first and won the opening round.
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