"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.
BIA Asylum Panel cutting down the backlog by trampling asylum seekers and their legal rights! Guatemalans are a favorite target for Garland’s “Band of Bullies” at EOIR. Albrecht Dürer, Public domain, via Wikimedia Commons
Dan Kowalski reports for LexisNexis Immigration Community:
CA3 on Guatemala, Law, Facts and Standard of Review: Saban-Cach v. Atty. Gen.
Saban-Cach v. Atty. Gen.
“Based on past experiences, if returned to Guatemala, Selvin Heraldo Saban-Cach fears being persecuted by a local gang because of his identity as an indigenous person. Accordingly, he seeks withholding of removal under the Immigration and Nationality Act and protection from removal under the Convention Against Torture. The Immigration Judge denied his applications and ordered his removal, and the Board of Immigration Appeals affirmed. This petition for review followed. For the reasons that follow, we will grant the petition, vacate the BIA’s decision, and remand for further proceedings consistent with this opinion. … Although the BIA need not write an overly detailed explanation of its review of an IJ’s decision, it must provide an adequate explanation of its ruling and afford us an opportunity to review it. Here, the BIA did neither. At times, the IJ’s decision completely conflicts with the record. Yet, for reasons that are not at all apparent, the BIA affirmed the IJ’s decision in its entirety. … The BIA must review the first, factual question for clear error and the second, legal question de novo. In affirming the IJ’s decision of the second question regarding acquiescence, the BIA concluded that it found “no clear error in the [IJ]’s predictive fact-finding.” Accordingly, in addition to not bifurcating the Myrie step-two inquiry, the BIA also erred by applying this heightened standard of review to a legal question. Because of these errors, “we have little insight into the basis for [the BIA’s] determination that the IJ’s opinion ‘clearly reflects that [s]he used the proper “willful blindness” standard in relation to the issue of acquiescence.’” Accordingly, on remand the BIA needs to reassess each question.”
[Hats way off to Stephanie Norton, CSJ Practitioner-in-Residence, Detained Immigrant Project Education, Seton Hall!]
Stephanie Norton CSJ Practitioner-in-Residence, Detained Immigrant Project Education, Seton Hall Law PHOTO: Seton Hall Law website
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Congratulations to NDPA star Stephanie Norton! This is yet another example of the great talent “out here” who could replace mal-functioning EOIR judges. Human lives are at stake, this system is dysfunctional, crying out for bold reforms! Wonder how the Dems will try to “spin” their miserable performance at EOIR in 2024?
The IJ’s and BIA’s findings of “no past persecution” in this case rise to the level of absurd! Here’s what happened:
The BIA recognized that gang members had attacked Saban-Cach on multiple occasions and that the worst attack left him unconscious after he was stabbed with a broken glass bottle. However, the BIA agreed with the IJ that, in the aggregate, this abuse did not rise to the level of persecution. The BIA explained that, “because most of the incidents did not involve physical injuries, and because the worst attack did not require him to seek professional medical care for his physical injuries, the applicant did not establish harm rising to the level of past persecution.”
Come on man! No competent, fair minded judge would reach such a totally ridiculous conclusion based on such shallow, specious, and basically “made up reasoning!” Not incidentally, it also directly conflicted with Circuit precedent as well as with the realities of life in Guatemala!
The BIA also ran roughshod over its OWN binding precedent, Matter of O-Z- & I-Z-, 23 I&N Dec. 22 (BIA 1998) (cumulative harm is persecution), which should have made a finding of past persecution a “no brainer” for a panel of competent asylum adjudicators! The sloppy, biased, “any reason to deny” culture at EOIR is a major cause of their out of control backlog. Efforts to deny easily grantable cases, and failure to direct wayward asylum-denying IJs to get it right in the first place, is a drag on our entire justice system — all the way up to the Courts of Appeals!
That’s because EOIR’s “any reason to deny” approach to asylum encourages, and often rewards, frivolous litigating positions by ICE, discourages stipulations and settlements in cases that should easily be granted, and results in OIL taking ethically and legally flawed positions in the Courts of Appeals. For example, in this case the 3rd Circuit characterized parts of OIL’s position as “disingenuous,” “puzzling and disappointing,” and pointedly stated that “[r]egrettably, the government’s response brief doubles down on this inaccuracy.”
So, these are the legal quality and ethical standards set at DOJ by AG Merrick Garland, a former Circuit Judge himself who certainly should be expected to “know better.” Apparently, in his view, due process, fundamental fairness, impartial adjudication, adherence to the law, judicial and legal ethics don’t apply when it’s “only migrants” whose lives are at stake! While this is a common approach from White Nationalist GOP politicos, don’t we deserve better from a Dem Administration that claims to care about racial justice, but whose actions with respect to migrants say otherwise?
The court also blasted EOIR for “ethnocentric” judging and failure to fairly evaluate cases.
We have previously cautioned IJs and the BIA against ethnocentric evaluations of petitioners’ resources. Petitioners primarily come from countries in the poorest and most dangerous regions of the world. Any presumption that they enjoy the same kinds of resources as their adjudicators is shortsighted and unfair. Unless the record supports it, IJs and the BIA should not assume that their own views of appropriate medical care and its ready accessibility make up a universal reality.
Petitioners for relief under the asylum system must be afforded the just hearing that due process and basic fairness demands. The immigration system can only provide a fair and neutral determination of the claims of people from different cultural and economic circumstances if adjudicators diligently avoid unrealistic assumptions about petitioners’ circumstances.
Any competent asylum practitioner would understand what the court is getting at. But, EOIR IJs at both the trial and appellate level make these basic mistakes time after time.
The 3rd Circuit and other courts might claim to find the BIA’s “entire” affirmance of a decision often in “complete conflict” with the record to be inexplicable. But, WE know that it’s because the “deportation assembly line” works on the “principle” of “any reason to deny” and “keep cranking out those final orders of removal.” To Hell with justice, quality, fairness, and the human lives involved!
This disasterous, backlogged, “star chamber system” is neither appropriately staffed nor competently operated to afford individuals “the just hearing that due process and basic fairness demands.” How is this due process and fundamental fairness required by our Constitution?
“Justice” Star Chamber Style. — AG Merrick Garland appears to be blissfully unconcerned about the methods applied by too many of his EOIR “judges,” and his DOJ attorneys who “run interference” for them, to achieve “removal for any reason, at any cost!”
Until a court has the guts to “pull the plug” on EOIR’s ongoing, deadly clown show 🤡, declare it unconstitutional, and require at least minimal due process reforms, these outrages will continue! “Puzzling” about recurring miscarriages of justice at EOIR, as the 3rd Circuit did here, is one thing; acting decisively to enforce the Constitution by stopping the abuse, once and for all, is quite different. Requiring EOIR judges with demonstrated expertise in asylum law, willing to professionally review records, and decide cases of asylum seekers correctly, without “ethnocentrism” or bias, would be a logical starting point! It should be a “no brainer!”
“When you walk into your EOIR ‘courtroom’ and this guy takes the bench, you’re probably in for a BAD day! Isn’t it time to finally END the ‘Clown Show’ in our dystopian Immigration ‘Courts?'” PHOTO: Clown Civertan.jpg, Creative Commons License
Professor Kate Shaw Cardozo Law PHOTO: Cardozo Law WebsiteProfessor Leah Litman University of Michigan Law PHOTO: Michigan Law Website
Kate and Leah were live from the University of Pennsylvania in Strict Scrutiny’s first live show of 2023! Penn Law Professor Jasmine E. Harris joined the hosts to recap arguments in a case that could impact disability rights. Kate and Leah recap two other arguments, in a case about immigration law and another about the ability to criminally prosecute corporations owned by foreign states. Plus, a major update about the Supreme Court’s “investigation” into who leaked the draft opinion of Dobbs last spring. And Temple University Law School Dean Rachel Rebouche joined the hosts to talk about some concerning updates in abortion access– an unfortunately commemoration of the 50th anniversary of Roe v. Wade.
• Here’s the report summarizing the Supreme Court’s investigation into who leaked the Dobbs opinion. (TLDR: they still don’t know who did it, but they tried their best? Former United States Secretary of Homeland Security Michael Chertoff said so.)
To hear the comments on our amicus brief “tune in” at 14:00 (lots of other “interesting commentary” on other cases if you listen to the entire program):
“With the highest possible human stakes,” amen, Kate!I get that, you get that, those stuck in the “purgatory of EOIR” get that! But, sadly, Biden, Harris, Garland, Mayorkas, their too often bumbling bureaucrats, and a whole bunch of Federal Judges at all levels DON’T “get” the dire human consequences and the practical impact of many of their decisions. That’s particularly true of those that give EOIR a “pass” on bad interpretations, opaque procedures, and a “super-user-unfriendly” forum that all too often defies logic and common sense! If they did “get it,” EOIR wouldn’t be the dystopian, likely unconstitutional, and life-threatening mess that it is today!
All you have to do is imagine yourself to be an unrepresented individual, who doesn’t speak English, on trial for your life in this messed up and unaccountable “court” system that holds millions of lives in its fumbling hands! Seems like a “modest ask” for those who have risen to the Federal Bench. But, for many, it’s a “bridge too far!” Let’s just hope that the Court does the “right thing” here!
Thanks to Round Table Maven Judge “Sir Jeffrey” Chase for spotting this!
Immigration Courts across the U.S. have been randomly rescheduling and advancing cases without regard to attorney availability or whether we have the capacity to complete our cases. The very predictable result of this fiasco is that lawyers are stressed and overworked, our ability to adequately prepare cases has been reduced, and–worst of all–asylum seekers are being deprived of their right to a fair hearing. Besides these obvious consequences, the policy of reshuffling court cases is having other insidious effects that are less visible, but no less damaging. Here, I want to talk about some of the ongoing collateral damage caused by EOIR’s decision to toss aside due process of law in favor of reducing the Immigration Court backlog.
As an initial matter, it’s important to acknowledge that the Immigration Court backlog is huge. There are currently more than 2 million pending cases, which is more than at any time in the history of the Immigration Court system. To address this situation, EOIR (the Executive Office for Immigration Review – the office that oversees our nation’s Immigration Courts) has been working with DHS (the prosecutor) to dismiss low-priority cases, where the non-citizen does not have criminal issues or pose a national security threat. Also, the U.S. government has been doing its best to turn away asylum seekers at the Southern border, which has perhaps slowed the growth of the backlog, but has also (probably) violated our obligations under U.S. and international law.
In addition, EOIR has been hiring new Immigration Judges (“IJs”) at a break neck pace. In the past few years, there has been a dramatic increase in the number of IJs nationwide, though some parts of the country have received more judges than others. In those localities with lots of new IJs, EOIR has been advancing thousands of cases. The goal is to complete cases and reduce the backlog. Why EOIR has failed to coordinate its new schedule with stakeholders, such as respondents and immigration attorneys, I do not know.
What I do know is that EOIR’s efforts have created great hardships for attorneys and respondents (respondents are the non-citizens in Immigration Court). Also, I expect that this whole rescheduling debacle will have long-term effects on the Immigration Courts, as well as on the immigration bar.
The most obvious effect is that lawyers and respondents simply do not have enough time to properly prepare their cases. When a hearing was set for 2025 and then suddenly advanced to a date a few months in the future, it may not be enough time to gather evidence and prepare the case. Also, this is not occurring in a vacuum. Lawyers (like me) are seeing dozens of cases advanced without warning, and so we have to manage all of those, plus our regular case load. So the most immediate consequence of EOIR’s policy is that asylum seekers and other respondents often do not have an opportunity to present their best case.
Perhaps less obviously, lawyers are being forced to turn work away. We can only competently handle so many matters, and when we are being assaulted day-by-day with newly rescheduled cases, we cannot predict our ability to take on a new case. In my office, we have been saying “no” more and more frequently to potential clients. Of course, this also affects existing clients who need additional work. Want to expedite your asylum case? Need a travel document to see a sick relative? I can’t give you a time frame for when we can complete the work, because I do not know what EOIR will throw at me tomorrow.
One option for lawyers is to raise prices. We have not yet done that in my office, but it is under consideration. What we have done is increase the amount of the down payment we require. Why? Because as soon as we enter our name as the lawyer, we take on certain obligations. And since cases now often move very quickly, we need to be sure we get paid. If not, we go out of business. The problem is that many people cannot afford a large down payment or cannot pay the total fee over a shortened (and unpredictable) period of time. The result is that fewer non-citizens will be able to hire lawyers.
Well, there is one caveat–crummy lawyers will continue to take more and more cases, rake in more and more money, and do very little to help their clients. Such lawyers are not concerned about the quality of their work or doing a good job for their clients. They simply want to make money. EOIR’s policy will certainly benefit them, as responsible attorneys will be forced to turn away business, those without scruples will be waiting to take up the slack.
Finally, since EOIR is increasing attorney stress and burnout to untenable levels, I expect we will see lawyers start to leave the profession. I have talked to many colleagues who are ready to go. Some are suffering physical and mental health difficulties due to the impossible work load. Most immigration lawyers are very committed to their clients and have a sense of mission, but it is extremely difficult to work in an environment where you cannot control your own schedule, you cannot do your best for your clients, you cannot fulfill your obligations to your family and friends, and where you are regularly abused and treated with contempt. Long before EOIR started re-arranging our schedules, burnout among immigration lawyers was a serious problem. Today, that problem is exponentially worse, thanks to EOIR’s utter disrespect for the immigration bar. I have little doubt that the long term effect will be to drive good attorneys away from the profession.
For me, the saddest part of this whole mess is that it did not have to be this way. EOIR could have worked with attorneys to advance cases in an orderly manner and to ensure that respondents and their lawyers were protected. But that is not what happened. Instead, EOIR has betrayed its stated mission, “to adjudicate immigration cases by fairly, expeditiously, and uniformly interpreting and administering the Nation’s immigration laws.” Respondents, their attorneys, and the immigration system are all worse off because of it.
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Jason Dzubow The Asylumist
“For me, the saddest part of this whole mess is that it did not have to be this way.” Amen, Jason! Me too! And, I think I speak for most, if not all, of my esteemed colleagues on the Round Table of Former Immigration Judges and BIA Members.”⚔️🛡
In addition to betraying its mission “to adjudicate immigration cases by fairly, expeditiously, and uniformly interpreting and administering the Nation’s immigration laws,” EOIR has trashed its noble once-vision: “Through teamwork and innovation be the world’s best administrative tribunals guaranteeing fairness and due process for all!”
The use of the word “uniformity” in EOIR’s “mission” is an absurdity given the “range” of asylum denials fostered and tolerated by Garland’s dysfunctional system: 0-100%! It’s also understandable, if unforgivable, that EOIR no longer features words like “due process,” “fundamental fairness,” “teamwork,” and “innovation” prominently on its website!
A Dem AG is attacking our American justice system and the legal profession at the “retail level” and causing real, perhaps “irreparable,” damage! What’s wrong with this picture? Everything! What are we going to do about it? Or, more appropriately, what are YOU going to do about it, as my time on the stage, and that of my contemporaries, is winding down?
All of these particularities matter, because once all available options have been exhausted, cases generally end up inside an immigration court before an immigration judge. The administrative snarls that predate a case before it arrives in immigration court are thus a result of policy from the top, for better or worse.
On paper, courts are supposed to be independent bodies. They are supposed to be immune from the political agendas of other government operatives or serve as independent mediators that can rectify previous errors.
But immigration courts are not. As a part of the Justice Department, at the end of the day, they work under the attorney general. While other courts function under a de jure practice of independence, immigration courts are held to the same standard despite not possessing the same protections that allow other judges to carry out their basic job functions. This creates an impossible work environment for immigration judges to fairly adjudicate every case with the attention it deserves. Instead, their measurements of success are based on accomplishing the president’s goals, which are translated into quotas for immigration courts. For example, Biden administration officials touted removing 1.3 million migrants last year.
As the Prospect has previously reported, immigration judges have long pointed out the tenuous environment they must work in.
But later this month, the Federal Labor Relations Authority (FLRA) will be hearing from the National Association of Immigration Judges (NAIJ) over whether or not their union will be reinstated. The FLRA will now have a majority of Biden appointees.
A dysfunctional immigration system can only start to work with independent courts. But that change can only happen through congressional action. In the meantime, a never-ending crisis at the border can be exploited by one party, as the other expands the needlessly punitive immigration practices of the previous administration.
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Many thanks to prodigious immigration commentator Nolan Rappaport for passing this along to me.
There is consensus among experts that an independent Article I Immigration Court is urgently needed and long overdue. There is also a consensus that the chance of achieving this critical legislative change with a GOP-controlled House is zero. At the same time, we must remember that Dems didn’t exactly give any priority to this essential and far-reaching reform when they had “unified control” over the political branches.
There is also consensus that in the absence of Article I there are things that Garland and the Biden Administration could and should have done administratively that would have drastically improved the due process, expertise, quality, efficiency, “customer service,” and professionalism of EOIR.
Gee whiz, a Harvard Law student figured it out! They haveconstructive suggestions for administrative reforms to change culture, improve training, place docket control in the hands of judges not politicos and bureaucrats, increase independence, improve quality, and insulate IJs from the political whims and enforcement agendas of each Administration. Seehttps://wp.me/p8eeJm-8hE?
But, a Harvard Law grad, long-time Federal Judge, and Supremes’ nominee, and his band of supposedly smart and high-powered political lieutenants couldn’t or wouldn’t get it done for a Dem Administration? Gimmie a break!
A Dem Administration that was supposed to get us beyond the cruelty, White Nationalism, xenophobia, and “malicious incompetence” of the Trump Administration falls flat on its face on a critical and achievable part of immigration reform and racial justice in America! Go figure!
Meanwhile, the cries of pain keep coming from those subjected to Garland’s dystopian “courts!”
Had an “interesting” IH today with this IJ. [IJ] denied my motion to continue the case by email the evening before the 8:30 am hearing, even though I had four IHs scheduled in the same time slot and had filed a motion to continue a month before the hearing. [IJ] refused to grant me a few minutes to speak with OPLA counsel before the hearing to narrow issues, saying that discussion should have already taken place. [IJ] spent an inordinate amount of time on housekeeping issues. [IJ] read a list of “rules.” [IJ] would insist that counsel stand when they spoke. [IJ] would routinely deny motions for webex hearings. [IJ] went through the biographical information excruciatingly slowly, including having the respondent spell the names of all the riders, provide their birth dates, etc.
It was a case where DHS had stipulated to 42b and the only issue would’ve been discretion but the IJ didn’t care. [IJ] told me to let everyone know that [IJ] reads each and every single document submitted in . . . court from back to front and . . . has a lot of questions . . . . [IJ] went on to conduct a full hearing, chastised DHS for stipulating, made a big deal of every little thing, asked irrelevant questions about medicaid forms that [client] may have filled for her children (not included as part of evidence), insinuated that she committed medicaid fraud, and made the ACC change position on each and every issue.
[The IJ] denied the asylum application of a young gay man from El Salvador. This is a first for me, in my 20+ years of asylum practice. We’ve never lost such a case that I can recall.
The facts are pretty typical – the kid lived a life of humiliation and abuse in El Salvador due to his sexual orientation; tried to commit suicide several times; and ultimately left the country when the Mara 18 tried to get him to deliver marijuana for them. Arguably, not a strong case for past persecution, but such cases typically prevail where a judge fairly evaluates a claim of well-founded fear of future persecution and considers the country condition reports and articles about the horrendous human rights abuses against the LGBT community in El Salvador. This didn’t fly with IJ. [IJ] simply said “there is no meaningful evidence in the record to demonstrate that the Respondent would experience harm amounting to persecution in El Salvador” and then went on to say that the client would likely experience more bullying and discrimination, but that doesn’t mean it would be persecution. [IJ] did not mention any country conditions report or article from the record to support his ruling.
[T]he DHS attorney called me directly after the hearing to empathize and tell me that it’s well-known even on their side that this judge is a piece of work and it’s always a good idea to take PD if offered.
[T]his judge is a menace. I don’t know what to do to protect my clients from [IJ] other than prepare strong BIA appeals.
This is the third email I have received to schedule MORE cases. No one will tell me what the goal is. I’ve put them on notice of the health issues this is/has been causing me.
Please tell the higher ups that this practice of overscheduling the private bar is taking a serious toll on practitioners’ health. Medical documentation is below and attached. I’m really not sure why the court has felt the need to overschedule practitioners to this level, but it is really taking a serious toll on everyone. Can someone please shed light on this urgent need to overwhelm the limited number of defense attorneys we have in the area?
Another outstanding Immigration Court practitioner told me that they had left courtroom practice and taken a “research and writing” position because the EOIR courtroom “experience” under Garland was so dehumanizing, demoralizing, stressful, and life consuming!
A different attorney called me with concerns that an IJ’s “over the top” abuse of pro bono counsel would discourage others from taking cases in Immigration Court.
IJ’s wasting time; discouraging negation and stipulation by parties; taking over hearings; abusing continuance discretion; failing to abide by Cardoza & Mogharrabi; showing bias; producing wildly inconsistent anti-immigrant results; showing thin knowledge of law; rudely treating counsel and clients; over-scheduling; abusing power; endangering the health of those appearing before them; driving practitioners to leave the EOIR courtrooms; discouraging pro bono!
Everything that is NOT what a fair, independent, court of law should be is present and allowed, perhaps even encouraged, in Garland’s broken EOIR! Why is this type of grotesque mismanagement, bad judging, unprofessional conduct, and disregard of fundamental due process “business as usual” under a Dem Administration?
This “star chamber” system needs new, expert, progressive, due-process-focused, free from political hackery and inane gimmicks, “kick-ass” management! Garland isn’t getting the job done!
These younger progressives are exactly the “core support” that Dems will need to win future elections! How does “dissing” them with inept leadership and ineffective nativist-derived immigration policies help the cause?
Honestly, what a mess! Garland’s dystopian EOIR is the Democratic Party’s shame!
“This appeal arises from the Board of Immigration Appeals’ (BIA) denial of Karla Yadira Lara Canales’s motion to reopen her removal proceedings. The BIA denied her motion to reopen as untimely, leaving the order of removal in place. We now VACATE the BIA’s denial of Lara Canales’s motion to reopen and REMAND so that the BIA may properly consider whether Lara Canales is entitled to equitable tolling. … [E]ach of the BIA’s bases for determining that Lara Canales had not accrued the continuous physical presence required for eligibility of cancellation of removal was legal error. We now hold that Lara Canales is statutorily eligible to seek cancellation of removal. However, this holding does not automatically entitle Lara Canales to have her motion to reopen heard on the merits. The BIA must, upon remand, engage in the fact-intensive determination of whether the 90-day deadline on motions to reopen should be tolled because of the extraordinary circumstance presented by Pereira. If the BIA determines Lara Canales satisfies the requirements for equitable tolling, she may then present her motion for a determination on its merits. We therefore VACATE the BIA’s denial of Lara Canales’s motion to reopen and REMAND this case for further consideration not inconsistent with this opinion.”
[Hats off once again to superlitigator Raed Gonzalez!]
Thanks Raed for continuing to lead the fight for justice in “America’s worst ‘court’ system” in America’s most right-wing Circuit!
THIS “any reason to deny mentality” at EOIR, still being promoted by Garland’s BIA, combined with incredibly inept and unprofessional “administration” of EOIR by DOJ, is why the Immigration Court is broken and being crushed by unending backlogs, daily chaos, and a travesties of justice and sound government!
The Biden Administration pretends like the problem doesn’t exist and/or isn’t important enough to fix. But, I can assure you that they are WRONG! “Dead wrong” in some cases!
In addition to the public manifestations of dysfunction and unprofessionalism like this case, I get regular e-mails from NDPA members relating their own EOIR horror stories and venting their frustrations with the arrogant “above the fray/what me worry about humanity and those defending it” attitude of Garland and the rest of the Biden Administration responsible for the ongoing EOIR catastrophe!
I strongly doubt that Garland, Monaco, Gupta, Prelogar, and the rest of the DOJ “clueless crew” responsible for this indelible blot on American justice would last 60 days if required to practice exclusively before EOIR under the unfathomably horrible, due-process-denying conditions they have promoted and enabled over their past two years of horrible legal “leadership!” As aptly stated by one practitioner who recently contacted me:
“Things in Immigration Court will never be the same, but I at least expected attention to due process. Nope, IJ’s are more interested in getting the cases done.”
How is this appropriate conduct from a Dem Administration that claims to value human lives, racial justice, and the rule of law, but whose actions at EOIR (and elsewhere in immigration and human rights) say the exact opposite? Poorly functioning as EOIR was when I retired in 2016, the “anecdotal consensus” from practitioners seems to be that it’s measurably worse now under Garland’s inept leadership! “Come on man,” this just isn’t right!
After all this time (17 years since the BIA’s supposedly “final” order), this case is still not complete! It’s back at the BIA for yet another chance for them to deny on specious, legally incorrect grounds. One possibility is to misapply the “equitable tolling” concept mentioned by the 5th Circuit. The BIA has a long, disgraceful record of resisting and mis-applying equitable tolling.
Or, perhaps they will attempt to invoke their recent precedent in Matter of Chen, 28 I&N Dec. 676 (BIA 2023) https://www.justice.gov/eoir/page/file/1561876/download to deny reopening for “failing to make out a prima facie case for relief on the merits.”
Chen is a case where the the respondent moved to reopen to apply for NLP cancellation having attained the required 10 years of physical presence by reason of the BIA’s two wrong-headed precedents overruled by the Supremes in Pereira v. Sessions and Niz-Chavez v. Garland. Having twice screwed up in a way that created tens of thousands of potential remands and reopenings, someone not familiar with the BIA might have expected them to set forth clear, practical, generous criteria that would encourage IJ’s to consistently reopen cases where the respondent now had the qualifying time and relative(s) in light of the problems caused by the BIA itself. After all, that’s basically the direction in the BIA’s long-standing precedent Matter of L-O-G-, 21 I&N Dec. 413 (BIA 1996) (reopening where the record“indicate[s] a reasonable likelihood of success on the merits, so as to make it worthwhile to develop the issues at a hearing”). https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwjWzY36pdn8AhVgF1kFHTcxChEQFnoECBkQAQ&url=https://www.justice.gov/sites/default/files/eoir/legacy/2014/07/25/3281.pdf&usg=AOvVaw2Ntzlp4MuxfupmjaDIn7i6
Since “exceptional and extremely unusual hardship” is inherently a fact-bound issue requiring a hearing to develop those facts, one might expect most cases to be routinely reopened.
But, the BIA took a different tack in Chen. While acknowledging that the hardship asserted by the respondent fell within the zone of those “recognized” by the BIA, they found “she has not identified and documented heightened hardship beyond that which would normally be expected to occur in such circumstances.”
While the BIA claimed to be “following” Matter of L-O-G-, they actually appear to have violated the teaching of that case that: “In considering a motion to reopen, the Board should not prejudge the merits of a case before the [respondent] has had an opportunity to prove the case.”(21 I&N Dec. at 419). That should particularly be true when the BIA itself has had a major role in creating the situation where reopening is sought.
By providing only a negative precedent (they didn’t even botherto “bookend” this with a precedential example of a grantable motion) to a system already suffering from a “culture of denial,” the BIA aggravated an long-festering problem. One can expect many IJ’s to view Chen as an “invitation to deny” the many Pereira/Niz Chavez motions to reopen in the offing for specious reasons or indeed for “any reason at all.” I expect talented NDPA warriors like Raed to make mincemeat out of the BIA’s wrong-headed attempt to minimize the “Pereira-induced damage” they have generated.
Like most of the misguided efforts of the 21st Century BIA, this attempt to cut corners, summarily deny, and NOT provide full due process and real hearings is likely to take more time and waste more resources than simply giving respondents the fair merits hearings to which they are legally entitled in the first place.But, that’s exactly what this Dem Administration has wrought at EOIR. “More of the same, instead of the promised change!”
Apparently, due process, fundamental fairness, and racial justice for all persons in the U.S., even those who happen to be non-citizens, weren’t part of A.G. Merrick Garland’s Harvard Law education. PHOTO: Wikipedia Commons
The esteemed Harvard Law Review does not publish much immigration scholarship. A student note on the immigration court system may be of interest to blog readers. The system long has been criticized and, last year, a bill was introduced in Congress that would have brought reform.
Courts in Name Only: Repairing America’s Immigration Adjudication System
By the Harvard Law Review
Noncitizens in the United States face innumerable obstacles, many of which have now become well known. But even the supposedly neutral court system in which noncitizens’ cases are adjudicated currently functions as an executive tool for removal. This Note argues that the current structure of the immigration adjudication system — and the resulting executive control over it — subjects Immigration Judges to a variety of conditions that, taken together, bias the entire system towards removal. It then surveys existing proposals for structural reform and proposes numerous possible intermediate reforms.
KJ
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Key recommendation from HLR article:
While waiting for Congress to act, however, the executive branch has the authority to implement several crucial reforms that would allow for noncitizens to have their cases heard in fairer proceedings overseen by IJs with true, independent adjudicatory power.
Good News for Harvard Law: Some bright, unidentified, Harvard Law students can cut through the BS and clearly state achievable reforms that could and should have been implemented by the Biden Administration without legislation.
Bad News for Harvard Law: Prominent graduate and Law Review “alum” AG Merrick Garland (‘77), once a step away from a seat on the Supremes, doesn’t “get” it and, in fact, his poor leadership and mis-management are key parts of the problems at EOIR that threaten the stability and credibility of the entire U.S. justice system.
Note to HLR: Follow your own advice to “cut through the noise” and reform yourself. Lose the “historical BS,” move into the 21st century, show some intellectual integrity, and set a better example by clearly identifying and crediting the authorship of this and other student articles, whether by individual(s) or a team. See, e,g., Authorship: Giving Credit Where It’s Due,https://www.apa.org/pubs/journals/resources/publishing-tips/giving-credit
It’s not “rocket science!” 🚀 It’s just “Legal & Intellectual Ethics 101” (not to mention standard professional courtesy). As a former judge, albeit only one in the CINOs, I gave little weight to quotations and citations to anonymous or unidentified sources.
Don’t just complain about the awful mess @ EOIR! Get on the bench and do something about it! Public Domain
Excerpts:
Now, those of you who read my blog immigrationcourtside.com or have heard me speak before, or both, know that I am an outspoken critic of the last four Administrations’ gross mismanagement and misdirection of our Immigration Courts. So, you might well ask why I am here recruiting YOU to become part of a court system that I have consistently lampooned and characterized as dysfunctional, FUBAR, and badly in need of long-overdue reforms.
A better question might be why AG Garland, VP Harris, Deputy AG Lisa Monaco, and Associate AG Vanita Gupta AREN’T here today actively recruiting you to apply to become Immigration Judges in their system. It’s a hugely important court, perhaps the largest in the Federal Government, that cries out for excellence, practical immigration scholarship, and badly needs a much more diverse, representative, and expert judiciary to achieve equal justice for all in America.
The short answer is because I CARE, and THEY DON’T! I have a vision of a model court system unswervingly dedicated to due process, fundamental fairness, great practical scholarship, best judicial practices, fantastic public service, and equal justice for all! THEY DON’T!
After two largely fruitiness and frustrating years of the Biden Administration’s bungling immigration and social justice mis-steps, it’s painfully clear that the needed management, personnel, operational, and expertise reforms needed at EOIR AREN’T going to come from above.
But, if you have been in Immigration Court and thought “Hey, there is a better, more informed, more efficient, more just way to run this railroad, why isn’t it happening,” THIS is YOUR chance to get on board and change the direction of EOIR and the millions of lives and livelihoods that depend on it! See that the next generations of dedicated immigration lawyers won’t face some of the unnecessary and counterproductive roadblocks and bad experiences that you have had to deal with in seeking justice for your clients before EOIR!
. . . .
Not surprisingly, asylum grant rates dropped precipitously during the Trump years. Although they have rebounded some under Biden, they still remain below the 2012 levels. It’s certainly not that conditions have substantially “improved” in major “sending countries.” If anything, conditions are worse in most of those countries than in the years preceding 2012.
So, if the law hasn’t changed substantially and country conditions haven’t improved, what has caused regression in asylum grant rates at EOIR? It comes down to poor judging, accompanied by inadequate training, too much emphasis on “churning the numbers over quality and correctness,” and a BIA that really doesn’t believe much in asylum law and lacks the expertise and commitment to consistently set and apply favorable precedents and end disgraceful inconsistencies and “asylum free zones” that continue to exist.
Some of the most disgraceful, intentional asylum misinterpretations by Sessions and Barr now have been reversed by Garland. Unfortunately, he failed to follow-up to insure that the correct standards are actually applied, particularly to recurring circumstances. It’s one of many reasons that the Biden Administration struggles to re-establish a fair and efficient legal asylum system at the Southern Border — notwithstanding having two years to address the problems!
But, it doesn’t have to be this way! Recently, as I noted earlier, a number of notable “practical scholar experts” have been appointed to the Immigration Judiciary. When such well-qualified jurists reach a “critical mass” in the expanding EOIR, systemic changes and improvements in practices and results will happen.
The “dialogue” among Immigration Judges from government backgrounds and those from the private/NGO sector will improve. Lives will be saved. Life-threatening inconsistencies and wasteful litigation to correct basic mistakes at all levels of EOIR will diminish. The EOIR system will resume movement toward the former noble, but now long abandoned, vision of “through teamwork and innovation, being the world’s best administrative tribunals, guaranteeing fairness and due process for all!”
. . . .
So, warriors of the NDPA, check out USA Jobs, make those applications for EOIR judgeships! Storm the tower from below! Make a difference in the lives of others, stand up for due process and fundamental fairness for all persons, and help save our democracy! Become better judges for a better America! If not YOU, then who?
You can watch my full webinar here:
AILA Webinars shared the following meeting recording with you.
Topic: How to become an EOIR judge
Date: Jan 11, 2023 11:42 AM Eastern Time (US and Canada)
Senator William Proxmire (D-WI) 1915-2005 Years served: 1957-89 PHOTO: Milwaukee JournalGolden Fleece Award IMAGE: Taxpayers for Common Sense
The late Senator Bill Proxmire (D-WI) was a ”good government activist,” famous for his monthly “Golden Fleece Awards!” 🏆🐑 The latter were presented to recognize, or more accurately expose, “the biggest, most ridiculous or most ironic example of government spending.”
Proxmire was Wisconsin’s longest-serving U.S. Senator (1957-89), having been elected in a 1957 special election to replace the infamous Sen. Joe McCarthy (R-WI) who died in office. (1957 was the year the then Milwaukee Braves beat the mighty NY Yanks to bring Milwaukee what remains its only World Series Championship. We were allowed to listen on the PA system at Washington Grade School, in Wauwatosa, where I was a student!)
According to his Congressional bio, “Proxmire also set an attendance record not likely to be beaten. Over a period of more than 20 years, he did not miss a single roll-call vote, casting 10,252 consecutive votes before leaving the Senate in 1989.” https://www.senate.gov/senators/FeaturedBios/Featured_Bio_ProxmireWilliam.htm. (Actually, the record was recently broken by Sen. Chuck Grassley (R-IA), sort of, as Grassley eclipsed Proxmire’s years of service, but cast thousands fewer votes, thanks to Congress’s lackadaisical approach to governing in recent years.)
He also famously won contested re-election in 1976 spending under an inflation adjusted $1,000! “He relied upon retail politics — selling himself to Wisconsinites by shaking hands and listening to their stories — to fuel his reelection bid.” https://captimes.com/content/tncms/live/. Proxmire was a rare pol who “walked the walk!”
Sen. Proxmire left the Senate well before the creation of DHS. But, he would have had a field day with entrenched bureaucracy, lack of creativity, and spendthrift ways that have become ingrained in DHS’s poor to pathetic delivery of public services. USCIS lost its way under the malicious incompetence of the Trump Administration and such stunningly unqualified “leaders” as Ken “Cooch Cooch” Cuccinelli. But, it has continued to “wander in the wilderness” under Biden.
David J. Bier Associate Director of Immigration Studies Cato Institute PHOTO: Cato Institute
David “hits the nail on the head”: with these two paragraphs:
USCIS is charging more money for less efficient work. It is not surprising that it is taking adjudicators much longer to process forms because the length of the forms keeps growing. The average form length has increased from about 3 pages in 2003—when the agency started—to about 10 pages in 2022.
USCIS should be eliminating the number of required applications and streamlining the process through electronic filing. The “discounts” for online filing that it plans on introducing hardly compensate applicants who must spend much more time using USCIS’s difficult online application portals, and regardless, online filing will remain unavailable for many types of forms. USCIS is moving too slowly to create a modern immigration system.
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I’ll bet that with his brilliant mind and work ethic, Eric Holder could actually substantially improve on the alleged 13.2 minute average “adjudication” time for Form I-765.
Eric Holder, Jr. Former U.S. Attorney General, now Partner @ Covington & Burling. He could actually save Biden’s USCIS a few bucks on hourly cost of adjudicating EADs!
The EAD is probably the most egregious example of an out of control bureaucracy that charges more for less service and complicates, rather than simplifies, a routine “no-brainer/low risk” function. Even the current $410 fee for an EAD is a ripoff that should be generating tons of excess cash for USCIS. Given the incomprehensible EAD backlog, in fact, the public has paid for lots of “service” that has never been “delivered.”
In private industry, that would be a “red flag” for potential fraud, waste, and abuse. If there were a “Better Business Bureau” for the bureaucracy, USCIS be in hot — no boiling — water!
Actually, the DHS IG and the GAO are supposed to perform this function for the Government, but have been largely “MIA” on the rapid downward spiral of the immigration bureaucracy over the past decade! In any event, nobody appears to pay much attention to their reports. They are issued, covered initially by the media, the subject of a few “political sound bites,” and then buried and forgotten (except, perhaps, by historians and scholars).
DHS needs new creative management, an emphasis on public service, and some close oversight (something Dems conveniently ignored while they had “unified control” of Congress). Most of us “get” that Trump and his flunkies intentionally destroyed what passed for “service” at USCIS. But, that was a well-known fact going into the 2020 election.
After two years in office, whining about what the Trump kakistocracy did or didn’t do, and pointing to Congress’s undoubted dereliction of duty, is getting old. Very old!
The Biden Administration needs to get new leadership into the dysfunctional immigration bureaucracy at DHS, DOJ, DOL, DOS, & other agencies. That must be leadership with a vision, courage, expertise, and a determination to deliver great public services in a competent, timely manner without “breaking the bank” or further blaming, shaming, punishing, or burdening the public “victims” of failed government.
Additionally, the out of touch “Miller Lite Brew Crew” that passes for immigration, human rights, and security advisors at and to the Biden White House needs to be replaced with practical experts who can get the job done without breaking laws and resorting to “built to fail” gimmicks.
Perhaps Senate Dems need much more of “Sen. Bill Proxmire’s Ghost” 👻 and far less tolerance for “Miller Lite thinking” among Congressional Dems and the Biden Administration!
Undoubtedly, once they get rolling, the “GOP Clown Show” 🤡in the House will provide lots of unwanted “oversight” to Mayorkas and Garland. But, given the GOP’s toxic record on immigration, it’s highly unlikely to focus on solving any of the REAL problems in the immigration bureaucracy, nor will it promote better public service — something simply not in the GOP lexicon these days.
This is what we immigration lawyers have to deal with. A court notice for a case mailed 12/27/2022 telling me that the trial scheduled for 5/18/2021 has been cancelled.
“Late Notice”
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Notably the one thing this incredibly belated notice DOESN’T do: Provide an actual date and time for the “rescheduled” hearing! That will probably come only after an in absentia has been issued!
A great public research project: What are the backlog and fiscal consequences of DHS’s & EOIR’s joint intentional failure to comply with statutory notice requirements in Non-LPR cancellation cases? (a/k/a “The Pereira Debacle” — for which there has been absolutely NO official accountability).
NO MORE Attorneys General who lack actual experience representing individuals before EOIR!
One of America’s largest, most important, most backlogged, and completely FUBAR Federal “Court” Systems would likely run much better if the person in charge (U.S. Attorney General) had actually been subjected to the indignities and incredible stresses of attempting to get justice for a real-life person at EOIR! Enough of the “What Me Worry” approach of Garland and other tone-deaf, “above the fray” Dem politicos! PHOTO: Wikipedia Commons.
To paraphrase Forrest Gump, Immigration Court is like a box of chocolates; you never know what you’re going to get. Also, some of the chocolate is poison.
For many applicants in Immigration Court, the most important factor in determining success is not the person’s story or the evidence or the quality of their lawyer. It is the judge who is randomly assigned to the case. According to TRAC Immigration, a non-profit that tracks asylum approval rates in Immigration Court, Immigration Judge (“IJ”) approval rates vary widely. For the period 2017 to 2022, asylum approval rates ranged from 0% (a judge in Houston) to 99% (a judge in San Francisco). Of the 635 IJs listed on the TRAC web page, 125 granted asylum in less than 10% of their cases. At the other extreme, nine IJs granted asylum more than 90% of the time.
Based solely on these numbers, there is a 20% chance (1 in 5) that your IJ denies at least 90% of the asylum cases that he adjudicates. That’s pretty frightening. But there is much more to the story, which we will explore below.
If Santa were an IJ, it wouldn’t matter whether you were naughty or nice – he would deport you Ho-Ho-Home.
First, the raw TRAC data does not distinguish between represented and unrepresented applicants, and having a lawyer generally makes a difference. Overall, represented applicants were denied asylum in 64% of cases. Unrepresented applicants were denied asylum more frequently–in 83% of cases. So if your IJ sees many cases where the applicant does not have an attorney, her overall denial rate is likely to be higher than if most of her cases have lawyers. To find this information, go to the TRAC website, click on the judge’s name, and scroll almost to the bottom of the IJ’s individual web page. You will see the percentage of cases before that IJ where the asylum applicant had an attorney. If you see that your judge presides over many unrepresented cases, it probably means that her overall denial rate is higher than would be expected if that IJ saw more cases where the applicant had a lawyer. What does this mean? Basically, if you are before such a judge, and you have an attorney, your odds of success are probably better than the judge’s overall denial rate would suggest. Conversely, if you do not have an attorney, your odds of receiving asylum are probably lower than the judge’s overall denial rate would suggest.
A second big factor that is relevant to each IJ’s denial rate is country of origin. People from certain countries are more likely to be denied, and so if your judge sees many people from those countries, his overall denial rate will be pushed up. You can see country-of-origin information if you click on your judge’s name and scroll to the very bottom of his web page. The countries that have had the highest denial rates over the past two decades are: El Salvador, Guatemala, Haiti, Honduras, and Mexico. And so if your IJ has many cases from these countries, his overall denial rate will likely be higher. Meaning that if you are not from one of these countries, your odds of winning asylum are probably better than what your judge’s overall denial rate would suggest.
A third important factor in examining IJ approval rates is the distinction between detained and non-detained asylum applicants. Certain judges have “detained dockets,” meaning that they rule on cases where the applicants are detained. Such people have a much more difficult time winning asylum: Some are barred from asylum due to criminal history or the one-year asylum bar. Others just have a more difficult time preparing their cases because they cannot easily gather evidence while detained. For these reasons, judges who decide many detained cases will generally have a lower overall asylum approval rate. Unfortunately, the TRAC data does not distinguish between detained and non-detained cases, and it is not always easy to know whether an IJ’s record includes detained cases (EOIR has a website that gives some details about each court, including whether that court is located at a detention facility).
While the TRAC data is not perfect (and there is no data on the newest IJs), it is the best source of information we have on Immigration Judge grant rates. Do keep in mind that the numbers only tell part of the story, and it is important to consider the above factors, as well as any other information you can gather from immigration lawyers and asylum applicants about your IJ.
What if you’ve done your research and have concluded that your judge is one of those who denies almost every case she sees? There are a few options.
One: You can go forward with the case and hope for the best. Sometimes a strong case can overcome a judge’s tendency to deny, and after all, even the worst IJs grant cases now and again (except for the 0% guy in Houston).
Two: You can ask for prosecutorial discretion and try to get the case dismissed. Except for cases where the noncitizen has a criminal or security issue, DHS (the prosecutor) is often willing to dismiss. Assuming you can get the case dismissed, you can then re-file for asylum at the Asylum Office (yes, this is a ridiculous waste of resources, but people are now doing it all the time). If you pursue this option, make sure to read the Special Instructions for the form I-589, as you will most likely be required to file your form at the Asylum Vetting Center.
Third: You can move. If you move to a new state (or at least a new jurisdiction within the same state), you can ask the IJ to move your case. Typically, you file a Motion to Change Venue. If the judge agrees, your case will be moved to a different court where you will hopefully land on a better IJ. Judges (and DHS attorneys) do not always agree to allow you change venue, especially if you are close to the date of your Individual Hearing or if you have previously changed venue in the past. And so if you plan to move your case, the sooner you make the move, the better.
Most Immigration Judges will do their best to evaluate the evidence and reach a fair decision. But some IJs seem intent on denying no matter what, and these judges are best avoided, if at all possible. Thanks to TRAC, you can get an idea about whether your IJ is one of these “deniers,” and this will help you decide how best to proceed in your case.
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So, at roughly the “halfway point” of the Biden Administration, one of the “best minds in the business,” Jason Dzubow, is expending his awesome brain-power advising lawyers on “strategies” for avoiding unfair “any reason to deny” Immigration Judges who inhabit about one in five Immigration Courtrooms under Garland!In other words, what steps you have to take to get a “fair hearing” on asylum from an agency whose sole function is SUPPOSED to be providing said “fair hearings” to everyone! See something wrong here?
One of these “strategies:” Request the ICE prosecutor’s agreement to dismissal of the (probably already long-pending) case in Immigration Court and “refile” before the Asylum Office (which also is hugely backlogged). Jason admits “that this is a ridiculous waste of resources, but people are now doing it all the time.”
Wonder why we have huge asylum backlogs? Despite what Trump, Biden, and nativist GOP politicos would have you believe, it has less do with those vainly seeking legal justice at our borders and LOTS to do with inept decisions, dumb actions (some of them downright malicious), and inactions by Congress and Administrations of both parties in the 21st Century.
Garland’s job was to fix this broken, unfair, wasteful, and astoundingly inefficient system. That isn’t “rocket science.” But, it requires dynamic, progressive, due process committed new leadership at EOIR and a major “shakeup” among Immigration Judges, at both the trial and appellate levels, so that those who are “looking for any reason to deny” either are get different jobs or start treating asylum seekers fairly and humanely byfollowing Cardoza, Mogharrabi, Kasinga, and 8 CFR!
Garland hasn’t gotten the job done! And, the applicants and lawyers whose lives and livelihoods are tied up in his beyond dysfunctional system are the ones paying the price for his failure! Also taxpayers see their dollars and resources being poured down the drain at EOIR!
But, they aren’t Garland’s only victims! EOIR’s dysfunction and its failure to provide consistently correct, generous, positive guidance on how to efficiently grant asylum, particularly at the border, drives a whole other series of failures, illegalities, wastefulness, and mis-steps by the Administration.
Much of the nonsense and legally inappropriate gimmicks being rolled out by President Biden himself at the border this week is an insane attempt to avert the dysfunction at EOIR and USCIS by punishing not the inept politicos and bureaucrats responsible (nor political grandstanding GOP demagogues like Abbott & DeSantis), but the victims!
Improperly taking away the legal right to seek asylum at the border and creating more “jury-rigged” faux refugee programs by misusing parole are NOT the answer! Whatever their short-term impact is, in the long run they will fail just like all the other “deterrents” and “asylum work-arounds” unsuccessfully tried by Administrations of both parties over the past two decades.
Indeed, for those of us who have been around immigration law and policy for the last half-century, it bears an uncomfortable resemblance to the “ad hoc, highly politicized, unsatisfactory” approach to refugee situations that was superseded by enactment of the Refugee Act of 1980. How little we learn from the past!
What HASN’T been tried is the obvious:Recognizing and vigorously defending the right to asylum and building a fair and efficient adjudication system run and staffed by human rights experts under the existing authority provided by the Refugee Act of 1980, as amended. Why not build a fair, functional, generous legal asylum system under that Act that would encourage applicants to use it and reward those qualified for doing so with timely legal status (including, of course, authorization to work)?
Existing law already provides for “expedited removal,” without full Immigration Court hearings, of those who fail to establish to a trained USCIS Asylum Officer that they have a “credible fear” of persecution! Draconian as that measure is, and it undoubtedly has resulted in mistakes and injustices to asylum seekers, both the Trump and Biden Administrations have gone even further by wrongfully depriving those fleeing persecution of even this limited statutory right to present their claim to an Asylum Officer! To matters worse, both politicos and so-called “mainstream” media have “normalized” this disgraceful and harmful scofflaw behavior by ignoring the pretextual, racist roots of the Title 42 charade!
In the meantime, given the near total lack of leadership, competence, and courage from above to “do the right thing” and bring the “rule of law” to life, I do have a strong suggestion for NDPA members courageously “fighting in the trenches.” Apply for upcoming Immigration Judge vacancies at EOIR in massive numbers, over and over, until the roadblocks are removed and justice prevails!
As the relative proportion of “expert practical scholars” on the Immigration Bench grows and the “deniers’ club cohort” shrinks, change will emerge “from below” at EOIR, lives will be saved by the thousands, and justice will finally be realized in a system that now tries to resist and twist it! Functionality and “good government” will eventually win out over today’s inexcusable, and preventable, mess!
The Biden administration has long been saying that it wants to get rid of Title 42.
Why, then, has it been expanding use of this policy?
“Title 42” is shorthand for what is effectively an abuse of a public health authority to circumvent U.S. asylum laws. Beginning in March 2020, the Trump administration used an obscure public health statute to automatically expel migrants without allowing them to first apply for asylum, as is their right under U.S. law and international treaty;PresidentDonald Trump’s pretext was that these immigrants might spread covid-19.
Apparently, Trump considered covid a liberal media hoax except when useful for punishing foreigners.
Human rights advocates and public health experts alike criticized the policy as probably both illegal and lacking a credible epidemiological purpose. Whatever its intentions, it didn’t reduce stress at the border; instead, it increased attempted border crossings, as many people expelled without consequence or due process turned right around and tried again to enter the United States.
That is, if they weren’t kidnapped, tortured, raped or otherwise violently attacked first. This happened in more than 10,000 cases of expelled migrants, as documented by Human Rights First.
As a presidential candidate, Joe Biden pledged to restore the integrity of the asylum system. He promised that anyone qualifying for an asylum claim would “be admitted to the country through an orderly process.” As president, though, Biden dragged his feet in terminating Title 42. He finally agreed to end the program this past spring. But termination has since been delayed by complicated court rulings, which Biden officials seem to have fought only half-heartedly.
This week, the Supreme Court determined that Title 42 must remain in place at least until the court decides a related issue (probably in the coming months). Given the Biden administration’s claims of wanting to end Title 42, the president should theoretically be mad about the delay.
Instead, Biden officials seem to have seized the opportunity to make yet more immigrant groups subject to automatic expulsions. “The administration has taken the position in court that they can no longer justify keeping Title 42 in place, given the lack of any public health justification,” said Lee Gelernt of the American Civil Liberties Union, which is challenging the expulsion policy. “If you look at the administration’s actions, however, it’s clear they’re fine with Title 42 remaining in place.”
. . . .
Americans often complain that immigrants should come here “the right way,” but for many migrants, showing up at the border unannounced and turning themselves in is the only legal pathway available. If given options to come here that don’t require paying gangs and crossing deserts, people would gladly take them — which would in turn alleviate stress at the border.
To its credit, the Biden administration has taken baby steps on that last recommendation.
Its Uniting for Ukraine program, for instance, has vetted and “paroled in” more than 82,000 Ukrainians and their immediate relatives abroad, which has discouraged Ukrainians from showing up en masse at our southern border (as had been the case early in the war). A similar but much more restrictive program was created for Venezuelans, whose numbers are capped at 24,000; a parallel program is reportedly in the works for Cubans, Nicaraguans and Haitians.
But again, these additional legal pathways can be created while still upholding the ability to apply for asylum at our borders. That’s what U.S. law requires — and what Biden has, repeatedly, promised to do.
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Read Catherine’s full article at the link. “If you look at the administration’s actions, however, it’s clear they’re fine with Title 42 remaining in place.”So true! So outrageous!
Contrary to much of the blather from both parties, refugee and asylum laws are an integral part of our LEGAL immigration system — one that is now being grossly misapplied and under-utilized!
Creating additional legal avenues for immigration by legislation is by no means inconsistent with maintaining robust, well-functioning refugee and asylum programs!
There are lots and lots of improvements that the Biden Administration could and should have made to the legal refugee and asylum programs that already exist under the law! Indeed, I suggest that many of the bogus “gimmicks” and counterproductive, wasteful, unfair “deterrents” devised and implemented by the Biden Administration, including expanded use of Title 42, were in direct or indirect response to Garland’s failed Immigration Courts. Because they are backlogged, inefficient, and dysfunctional, bureaucrats and politicos dream up ways to evade them (as opposed to fixing them so they work)!
It’s all wrong! There are “tons” of cases rotting inGarland’s ever-expanding EOIR backlog that could be granted or otherwise disposed of with relative ease and without stomping on anyone’s due process rights! There are ways of providing proper notice, better scheduling, and a new system for initial adjudications of non-LPR cancellation cases that do NOT require legislation; just better leadership and personnel at DOJ, DHS, and the White House!
The lack of scholarly, progressive, due process oriented precedents and implementation of best judicial practices by the BIA cripples justice in both the Immigration Courts and the USCIS Asylum Offices, even extending to the Refugee Program and other forms of USCIS adjudication of benefits.
For example, the ridiculous, largely self-created, backlogs in USCIS work authorizations is at least partially fueled by never ending backlogs in Immigration Court. Also, bad judicial decisions at EOIR create large amounts of unnecessary litigation in the Article III Courts and promote inconsistencies by allowing too many important issues, including proper application of some of the BIA’s own precedents favorable to respondents, to be resolved by the Circuits.
The system is a godawful mess! Yet, Dems inCongress didn’t even consider pressing for long-overdue Article I legislation, already introduced by Chair Lofgren, as part of their “lame duck push.” Thus, a key part of the immigration and justice systems continues to flounder and fail in Garland’s DOJ!
The need for so-called “comprehensive immigration reform” does not in any way minimize the responsibility of the Biden Administration for failing to reform the leadership and bureaucracies at DOJ and DHS to produce fairer, more efficient, expert, professional results!
Some cowardly Dem politicos and many Biden officials “run” from the immigration issue; yet, addressing and fixing the parts they control, like EOIR, could well have given them success to tout during the mid-term campaign.
And, as many experts suggest, it might also have helped address labor shortages, inflation and improved the economy. Rather than just “holding off disaster,” by acting more boldly on immigration the Dems might even have maintained and expanded their political control by demonstrating both the competence to solve immigration problems, even without comprehensive legislation, and the benefits of a fair, efficient, functional immigration system to America as a whole.
With the GOP taking over the House, expect many Dems to continue bellyaching that “nothing can be done about immigration.” It’s not like they did much of anything when they controlled both Houses!
There are still things that can be done to make the system fairer, more efficient, and more responsive to the common needs of America. Progressives should not let Dem “naysayers” off the hook!
“Federal Reserve chief Jerome Powell showed last week that he’s thinking about how recent lower immigration has factored into the ongoing U.S. labor shortage, but he said it’s not appropriate for the Fed to call for increased legal immigration to help alleviate the shortage. Could his remarks, careful as they were, somehow move the needle on immigration policy? His comments came as one new bipartisan proposal for immigration reform flopped in Congress, and some analysts say they aren’t optimistic about progress on immigration next year in a divided Washington. Still, others see Powell’s remarks having a small effect. … Powell’s answer could be seen as part of a slow process that eventually results in long-awaited fixes to the U.S. immigration system, according to Stephen Yale-Loehr, a professor of immigration law at Cornell Law School. “To me, it’s like water dripping on a rock,” Yale-Loehr told MarketWatch in an interview. “A single drop of water, whether it’s from Fed Chairman Powell or somebody else, won’t make a difference by itself. But if enough drips of water from other people and other studies consistently show that immigration can help our labor shortages and improve our economy, then I hope that will move the needle so that Congress will seriously take up immigration reform in 2023.” … The Cornell professor also suggested that grassroots efforts eventually might end up spurring U.S. lawmakers to do more. “A lot of change happens from the ground up, rather than the top down — if you think about civil-rights legislation in the 60s, the Environmental Protection Act of 1970, the antiwar efforts,” he said. “It was because people really protested the existing framework that they forced Congress to make changes in those areas. And so too, I think that if more Americans stood up and said, ‘We need immigration reform,’ I think that that would help persuade Congress to actually put pen to paper and make some significant changes.””
What better place to start forcing some long overdue changes than by getting more NDPA “practical scholar/experts” onto the EOIR bench where lives are on the line every minute of every working day? There are lots of ways to do justice at the “retail level” despite, or perhaps because of, the indifference of those in charge!
Folks, approximately a decade ago, the asylum grant rate at EOIR exceeded 50%! When grants of withholding (many the result of the 1-year-bar on asylum) and CAT were added in, almost 2/3 of asylum applicants who got a merits determination received some form of legal protection!
The vast majority of these cases were not appealed to the BIA. Slowly, but steadily, the EOIR system “at the retail level” was committing to expertise, sound scholarship, due process, fundamental fairness, faithful application of the generous legal principles established in Cardoza, Mogharrabi, and the regulatory presumption of future future persecution based on past persecution.
For years, those precedents and that regulation were resisted by many EOIR judges who continued, in practice, to apply the higher “more likely than not” standard rejected in Cardoza. But, following a series of savagely critical reversals of EOIR asylum denials by the Courts of Appeals the ground started to shift toward a more generous, proper, and correct interpretation of asylum law. Notably, those Court of Appeals “roastings” came after AG John Ashcroft “purged” the BIA in 2003 of appellate judges who spoke out for a better legal interpretation of asylum laws — one that faithfully followed Cardoza, Mogharrabi, and international standards!
As I used to tell my Georgetown Law students, a quarter century after the Supremes’ landmark decision in INS v. Cardoza-Fonseca, establishing the generous “well-founded fear” standard for asylum (reasonable likelihood = 10% chance) and the BIA’s implementation of that standard in Matter of Mogharrabi (asylum can be granted even where it is significantly unlikely that persecution will occur) the more generous standard was actually achieving “traction” at EOIR!
The law hasn’t changed very much since 2012. But, the progress toward a “Cardoza/Mogharrabi compliant” interpretation and application of asylum law halted and regressed substantially during the last part of the Obama Administration and during the Trump era.
What did change, for the worse, was the attitude of politicos, who have seen the Immigration Courts as captive “tools” to deter asylum seekers and “send negative messages” rather than insuring that they function as due-process-oriented, independent, subject matter expert, courts of law. The qualifications of those selected as Immigration Judges were “watered down” to favor high-volume government prosecutorial experience over demonstrated expertise in immigration and asylum laws and “hands on” experience representing individuals before EOIR.
Not surprisingly, asylum grant rates dropped precipitously during the Trump years. Although they have rebounded some under Biden, they still remain below the 2012 levels. It’s certainly not that conditions have substantially “improved” in major “sending countries.” If anything, conditions are worse in most of those countries than in the years preceding 2012.
So, if the law hasn’t changed substantially and conditions haven’t improved, what has caused regression in asylum grant rates at EOIR? It comes down to poor judging, accompanied by inadequate training, too much emphasis on “churning the numbers over quality and correctness,” and a BIA that really doesn’t believe much in asylum law and lacks the expertise and commitment to consistently set and apply favorable precedents and end disgraceful inconsistencies and “asylum free zones” that continue to exist.
Some of the most disgraceful, intentional asylum misinterpretations by Sessions and Barr now have been reversed by Garland. Unfortunately, he failed to follow-up to insure that the correct standards are actually applied, particularly to recurring circumstances. It’s one of many reasons that the Biden Administration struggles to re-establish a fair and efficient legal asylum system at the Southern Border — notwithstanding having two years to address the problems!
But, it doesn’t have to be this way! Recently, a number of notable “practical scholar experts” have been appointed to the Immigration Judiciary. When such well-qualified jurists reach a “critical mass” in the expanding EOIR, systemic changes and improvements in practices and results will happen.
The “dialogue” among Immigration Judges from government backgrounds and those from the private/NGO sector will improve. Lives will be saved. Life-threatening inconsistencies and wasteful litigation to correct basic mistakes at all levels of EOIR will diminish. The EOIR system will resume movement toward the former noble, but now long abandoned, vision of “through teamwork and innovation, being the world’s best administrative tribunals, guaranteeing fairness and due process for all!”
So, warriors ⚔️🛡of the NDPA, make those applications for EOIR judgeships! Storm the tower from below! Make a difference in the lives of others and help save our democracy! If not YOU, then who?👩🏻⚖️👨🏽⚖️⚖️🗽🇺🇸
In addition to these five, two other recently appointed Immigration Judges had private practice experience in immigration before becoming Government attorneys.
Round Table maven (and VERY proud new grandfather 😎) “Sir Jeffrey” S. Chase gave a special “shout out” to Judge Gioia M. Maiellano, now of the NY Federal Plaza Immigration Court.
Gioia M. Maiellano, Immigration Judge, New York – Federal Plaza Immigration Court
Gioia M. Maiellano was appointed as an Immigration Judge to begin hearing cases in December 2022. Judge Maiellano earned a Bachelor of Science in 1994 from Fordham University and a Juris Doctor in 1998 from Brooklyn Law School. From 2021 to 2022, she was a solo practitioner handling immigration cases. From 2017 to 2021, she served as an Administrative Law Judge with the Department of Finance, City of New York. From 2015 to 2016, she served as an asylum officer with U.S. Citizenship and Immigration Services (USCIS), Department of Homeland Security (DHS). In 2015, prior to joining USCIS, she served as pro bono counsel for the Iraqi Refugee Assistance Project. From 2013 to 2015, she worked in private practice with the Law Office of Carmen DiAmore-Siah in Honolulu representing individuals before the immigration courts, the Board of Immigration Appeals, and USCIS. From 2003 to 2013, she served as an assistant chief counsel, U.S. Immigration and Customs Enforcement, DHS, in New York. In 2002, she worked with the Law Office of Amir Alishahi in New York. From 2000 to 2001, she served as a staff attorney with the European Roma Rights Center, in Budapest, Hungary. Prior to that, she served as a law clerk with the Office of the Prosecutor at the United Nations International Criminal Tribunal for the Former Yugoslavia in The Hague, The Netherlands. Judge Maiellano is a member of the New York State Bar.
As experts like my friends Judge Chase, Professor Debbie Anker, and LexisNexis Guru Dan Kowalski say, EOIR is an organization where positive change is more likely to “come from below than from above.” Unfortunately, that makes it a painfully slow process for those still suffering in the substandard conditions that Garland permits in his Immigration Courts.
Nevertheless, as more and more judges join the bench with recent experience actually working their way through this dysfunctional system to obtain justice for their clients, the resistance to mis-applying BIA and Circuit precedents favoring individuals will grow. Additionally, the legal standards will be correctly applied at the “first level,” unrealistic requirements on individuals and their lawyers will diminish, due process, fundamental fairness, and efficiency will advance, and the disgraceful anti-immigrant, anti-asylum, deny, deport, and deter “culture” at EOIR — actively promoted under Sessions and Barr — will diminish over time.
Moreover, when Article I eventually comes, a more diverse and better-qualified group of IJs likely will be initially “grandfathered.” That’s another reason why Garland’s “slow moving train” in improving the quality of EOIR Judges at all levels has been so totally frustrating.
Should have and could have happened over the past two years with better leadership and vision from Garland and his subordinates. But, given the dismal state of immigration institutions and policies over the past six years, I’ll treat anything that isn’t “bad news” as “good news!”
Michigan Stadium, America’s largest, holds 107,601. It would take approximately 20 Michigan Stadiums to hold all the 2,000,000 + folks waiting for hearings in Garland’s dysfunctional and backlogged Immigration Courts! And, that doesn’t include their families, communities, employers, co-workers and others affected by their fates! If Garland were the managing partner of a law firm or the CEO of a business, he would be “long gone.” Why aren’t competence and accountability “minimum requirements” for America’s chief lawyer? Michigan Stadium Photo by Andrew Horne, Creative Commons License
Even at this accelerated completion rate, on an annualized basis, I calculate thatEOIR will still be building backlog at a rate of nearly 300,000 annually, based on 800,000 new receipts from DHS.
At approximately 700 completions/year/judge (EOIR’s figure), EOIR would need approximately 400 additional, fully trained, fully productive IJs on the bench just to “break even” and stop creating more backlog.
Nearly 800,000 asylum cases are sitting in the backlog, many ready to try and pending for years. With a better BIA and better trained IJs who actually applied Cardoza-Fonseca, Mogharrabi, and the regulatory presumptions of well-founded fear properly (instead of being “programmed to deny”) the vast majority of these old asylum cases could be prioritized and granted in short hearings.
Even with today’s broken, biased, and unconstitutionally inconsistent Immigration Courts, migrants prevail against deportation in approximately 60% of cases! This suggests that the majority of the Immigration Court’s cases could be prioritized and resolved in the migrant’s favor without lengthy hearings IF the system had a better BIA, better IJs, better training, better practices, and a better working relationship with the private bar and DHS.
Far too few bonds are being granted, and insufficient attention is being paid to inconsistencies in the bond process.
Only an infinitesimally small percentage, .56%, of new cases filed by ICE involve allegations of criminal conduct. This suggests continuing problems with the way ICE allocates enforcement resources and chooses to use Immigration Court time.
Earlier this year, I had predicted that Garland would top the 2 million backlog mark by the end of August 2022.https://wp.me/p8eeJm-7dT
I was off by 3 months, as it actually took him until the end of November 2022 to achieve this negative landmark.
Nevertheless, some things are clear: This system is “beyond FUBAR!” It needs professional leadership, a new appellate board, better judges, better training, better utilization of the private bar, smarter, more creative and innovative practices, and authority to “rein in” in out of control ICE Enforcement. All the same things experts said were needed back at the time of Biden’s election! Ignoring expert advice has resulted in just the continuing, mushrooming disaster at EOIR and in our legal system that experts predicted!
Over two years, Garland has shown that he is not the person for the job. Nor have his political subordinates shown any aptitude for addressing the festering management, legal, and quality control problems @ EOIR!
Experts and advocates should be pushing the Administration and Dems in Congress for a change in leadership at the DOJ! Every day of failure means more backlog, more injustice, more frustration, more lives endangered, and a growing threat to American democracy — from those sworn to protect and uphold it, but aren’t getting the job done!
Dalia Castillo-Granados and Yasmin Yavar. So far this year, the Children’s Immigration Law Academy has responded to more than 300 legal technical assistance questions. It has coordinated five in-depth virtual trainings and hosted eight webinars that attracted more than 1,600 attendees.
Dalia Castillo-Granados had just begun her fellowship with the St. Frances Cabrini Center for Immigrant Legal Assistance, a program of Catholic Charities of the Archdiocese of Galveston-Houston, when she met Yasmin Yavar in 2008.
Like Castillo-Granados, Yavar focused a lot of her attention on special immigrant juvenile status cases as the pro bono coordinator of Kids in Need of Defense’s new office in Houston. Despite changes in the law that allowed more children to apply for this form of immigration relief—which gives those who have been abused, neglected or abandoned a pathway to lawful permanent residence in the United States—attorneys were just beginning to test the waters in this area.
After collaborating on a case, Castillo-Granados and Yavar stayed in touch and created their own support system.
“There was a very small community of attorneys, even nationwide, representing unaccompanied children,” says Castillo-Granados. “In Houston, Yasmin and I were trying to get into state court and educating judges about why we were there. We had each other on speed dial, calling to talk over strategy and get suggestions and push the cases forward.”
Several years later, as an increasing number of unaccompanied children crossed the United States-Mexico border, Castillo-Granados and Yavar wanted to support the legal service providers and volunteer attorneys who were taking their cases. They drafted a plan for a legal resource center focused on children’s immigration law, and Yavar, who had worked with the ABA’s South Texas Pro Bono Asylum Representation Project in Harlingen, Texas, shared it with Commission on Immigration Director Meredith Linsky.
At the time, Linsky met regularly with the ABA Working Group on Unaccompanied Minor Immigrants. Its members liked the idea, and in September 2015, Linsky helped Castillo-Granados and Yavar launch the Children’s Immigration Law Academy.
“We decided to do exactly what we did for each other back when we were starting, but for everyone else,” says Castillo-Granados, who serves as CILA’s director.
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Read Amanda’s full article at the link.
Here’s an interesting contrast in problem-solving, creative thinking, dynamic leadership, and effectively using resources. Between 2008, when they met, and 2021, Dalia and Yasmin experienced an approximately 15X growth in the number of unaccompanied children, from 8,000 to 120,000. Faced with this stressful situation and a U.S. Government that under Administrations of both parties has displayed a rather callous indifference to child welfare, it would have been easy to give up and take their talents to another area of law!
Because they worked for an NGO, the couldn’t demand more resources or claim that drastic reductions in children’s rights, harsher enforcement, or “deterrence” were the “only solutions.” Interestingly, these were exactly the type of “rote, alarmist, reactionary reactions” that the Obama Administration had and that the Trump Administration tried to “implement” without the benefit of legislation.
Dalia and Yasmin viewed the problem as challenging, yet solvable, came up with a plan, and sold it to other members of the legal community — on its merits, not its “scare value.” They were able to “leverage” their experience, skills, and dynamic leadership to pool resources, create teamwork, and “teach and inspire others to help those in need.”
They actually expanded, improved quality, and increased efficiency, thus multiplying rather than diluting their effectiveness. The also relied largely on existing tools and frameworks, but “leveraged” them in a creative and more efficient manner.
I submit that this is the exact opposite of how the broken bureaucracies at DHS, DOJ, and ORR have reacted to most immigration issues. Given lots of personnel, considerable resources, a workable, if not “perfect,” legal framework, and ample flexibility to redirect and repurpose wasted or misused resources, the last three Administrations have fallen “flat on their overstuffed and moribund bureaucratic faces.”
With billions in taxpayer dollars, thousands of employees, and a legal framework that actually provides plenty of useful options, the USG has underachieved, to put it charitably. It has fallen back on wasteful, disruptive, andinefficient “proven to fail” deterrence “gimmicks;” ludicrous rhetoric; mythical threats; aimless reshuffling and churning of existing workload; bolloxed priorities; victim shaming and blaming; cruelty; and most disturbingly, massive scofflaw actions, crackpot proposals, and blatant curtailment of important human and legal rights.
To make matters worse, at least the Biden Administration has had access to what is probably the greatest “talent pool” of human rights, immigration, and child welfare experts on the face of the earth — almost all of it in the private/NGO/advocacy/academic sectors! Yet, they have resisted sound expert advice and creative solutions, while largely passing over available dynamic and inspiring leadership to overstuff their bloated immigration bureaucracy largely with a mixture of Trump holdovers, Obama retreads, and lesser lights.
Obviously, talented NDPA superstars like Dalia and Yasmin are the wave of our future — not just in immigration and human rights, but in government, politics, our legal system, and American society! The issue is how we can force unwilling, “stuck in reverse” Dem Administrations to grow some backbone, enforce the values they espouse during elections, “clean house” in the bureaucracy and the ranks of ineffective, often clueless, politicos, and “repopulate and reform” the USG immigration bureaucracy and the beyond dysfunctional Immigration Courts with stars like Dalia and Yasmin. That is, courageous, visionary, experts who can actually solve problems rather than creating new ones and blaming the victims and those striving to hep them!
Many thanks to Roberto Blum, Esquire, of Houston Texas for sending this article my way. Roberto says “they are the real heroes!” I concur, my friend, 100%!
