"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt and Dr. Alicia Triche, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
“Little Shop of Horrors:” Another human life devoured by the “due process eating plant” hidden away in the bowels of the BIA! PHOTO: Little Shop of Horrors at Grafton High School 14.jpg, Creative Commons License
Faiza Sayed Assistant Professor of Law and Director of the Safe Harbor Project Brooklyn Law School PHOTO: Brooklyn Law Website
ABSTRACT—Each year, the Board of Immigration Appeals (BIA)—the Justice Department’s appellate immigration agency that reviews decisions of immigration judges and decides the fate of thousands of noncitizens—issues about thirty published, precedential decisions. At present, these are the only decisions out of approximately 30,000 each year, that are readily available to the public and provide detailed reasoning for their conclusions. This is because most of the BIA’s decision-making happens on what this Article terms the “immigration shadow docket”—the tens of thousands of other decisions the BIA issues each year that are unpublished and nonprecedential. These shadow docket decisions are generally authored by a single BIA member and consist overwhelmingly of brief orders and summary affirmances. This Article demonstrates the harms of shadow docket decision- making, including the creation of “secret law” that is accessible to the government but largely inaccessible to the public. Moreover, this shadow docket produces inconsistent outcomes where one noncitizen’s removal order is affirmed while another noncitizen’s removal order is reversed—even though the deciding legal issues were identical. A 2022 settlement provides the public greater access to some unpublished BIA decisions, but it ultimately falls far short of remedying the transparency and accessibility concerns raised by the immigration shadow docket.
The BIA’s use of nonprecedential, unpublished decisions to dispose of virtually all cases also presents serious concerns for the development of immigration law. Because the BIA is the final arbiter of most immigration cases, it has a responsibility to provide guidance as to the meaning of our complicated immigration laws and to ensure uniformity in the application of immigration law across the nation. By publishing only 0.001% of its decisions each year, the BIA has all but abandoned that duty. This dereliction likely contributes to well-documented disparities in the application of immigration law by immigration adjudicators and the inefficiency of the immigration system that leaves noncitizens in protracted states of limbo and prolonged detention. This Article advances principles for reforms to increase transparency and fairness at the BIA, improve the quality, accuracy and
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political accountability of its decisions, and ensure justice for the nearly two million noncitizens currently in our immigration court system.
AUTHOR—Assistant Professor of Law, Brooklyn Law School. I am thankful to Matthew Boaz, Richard Boswell, Jason Cade, Stacy Caplow, Pooja Dadhania, Elizabeth Isaacs, Kit Johnson, Anil Kalhan, Elizabeth Keyes, Catherine Kim, Shirley Lin, Medha Makhlouf, Hiroshi Motomura, Prianka Nair, Vijay Raghavan, Philip Schrag, Andrew Schoenholtz, Sarah Sherman- Stokes, Maria Termini, Irene Ten-Cate, and S. Lisa Washington for thoughtful conversations and comments on drafts. This Article benefitted from feedback at the New Voices in Immigration Law Panel at the 2022 AALS Annual Meeting, the 2021 Clinical Law Review Writers’ Workshop at NYU, and the junior faculty workshop at Brooklyn Law School. I am grateful to Benjamin Winograd and Bryan Johnson for helpful conversations about the Board, unpublished decisions, and FOIA, and to David A. Schnitzer and Visuvanathan Rudrakumaran for discussions about the Andrews and Uddin cases. Thank you to Emily Ingraham for outstanding research assistance and to the editors of the Northwestern University Law Review for excellent editorial assistance. Financial support for this Article was provided by the Brooklyn Law School Dean’s Summer Research Stipend Program.
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Professor Sayed has written an “instant classic” that should be a staple for future historians assessing the legal career and impact of Merrick Garland and how the Democratic Party has failed humanity time again on immigrant justice when the stakes were high and the solutions achievable!
Here’s my “favorite” part:
In 1999, Attorney General Janet Reno attempted to deal with the BIA’s rapidly increasing backlog of appeals by implementing “streamlining rules” that made several changes to the way the Board operated.41 Most importantly, certain single permanent Board members were now permitted to affirm an IJ’s decision on their own and without issuing an opinion.42 The Chairman of the BIA was authorized both to designate certain Board members with the authority to grant such affirmances and to designate certain categories of cases as appropriate for such affirmances.43 Finally, Attorney General Reno increased the size of the Board to twenty-three members.44 Evaluations of the reforms found that they “appear to have been successful in reducing much of the BIA’s backlog” and “there was no indication of ‘an adverse effect on non-citizens.’”45
Despite the documented success of Attorney General Reno’s reforms, in 2002, Attorney General John Ashcroft announced controversial plans to further streamline the BIA’s decision-making.46 These rules “fundamentally changed the nature of the BIA’s review function and radically changed the composition of the Board.”47 To support the reforms, Ashcroft cited not only the backlog but also “heightened national security concerns stemming from September 11.”48 The reforms included making single-member decisions the norm for the overwhelming majority of cases and three-member panel decisions rare, making summary affirmances common, and reducing the size of the Board from twenty-three members to eleven.49 A subsequent study found that Attorney General Ashcroft removed those Board members with the highest percentages of rulings in favor of noncitizens.50 As a result of the reforms, outcomes at the BIA became significantly less favorable to noncitizens,51 and the federal circuit courts received an unprecedented surge of immigration appeals.52
In the wake of harsh criticism of immigration adjudications by federal circuit courts, Attorney General Alberto Gonzales directed the DOJ to conduct a comprehensive review of the immigration courts and the Board in 2006. Based on this review, Attorney General Gonzalez announced additional reforms “to improve the performance and quality of work” of IJs and Board members.53 The most significant change was the introduction of performance evaluations, which include an assessment of whether the Board member adjudicates appeals within a certain time frame after assignment.54 Scholars have explained that “the performance evaluations give an incentive to affirm rather than reverse IJs by emphasizing productivity, and because immigrants file the overwhelming number of appeals with the BIA . . . the incentive to affirm means outcomes that favor the government.”55
The Trump Administration once again transformed Board membership. Board members whose appointments predated the Trump Administration were reassigned after refusing buyout offers,56 and the Administration expanded the Board to add new members.57 Most of the new Board members appointed under the Trump Administration had previously served as IJs,
where they had some of the highest asylum denial rates in the country.58
Garland has failed to replace the asylum denying judges who were “packed” onto the BIA during the Trump era with qualified real judges who are experts in asylum law, unswervingly committed to due process, and able to set proper precedents and enforce best judicial practices. That’s a key reason for the “prima facie arbitrary and capricious inconsistencies’ in EOIR asylum grant rates — 0% to 100% — a rather large range!
The latter read like a compendium of legally and factually questionable “how to deny asylum and get away with it” instructions. Absent is any hint of the properly fair and generous treatment of asylum seekers required by the Supremes in Cardoza-Fonseca and once echoed in BIA precedents like Mogharrabi, Kasinga, Chen, Toboso-Alfonso, A-R-C-G-, and O-Z- & I-Z- .
Some well-reasoned grants that could be widely applied to recurring situations are also buried on the “shadow docket.” At the same time, as cogently described by Professor Sayed, cases with almost identical facts that resulted in denial are also hidden there. This system is simply NOT functioning in a fair, reasonable, and legally sound manner. Not even close! Yet, Garland has not brought in competent expert judicial administrators and managers at EOIR who recognize the problems and would make solving them, rather than aggravating them, “priority one!” Why?
Contrast that with the enlightened movement among American Law Schools to promote immigration “practical scholars” and clinicians to administrative positions in recognition of their inspirational leadership and superior “real life” problem-solving skills! It’s as if Garland and the rest of Biden’s inept immigration bureaucracy operate in a “parallel universe” where immigration, human rights, and racial justice don’t exist!
Not surprisingly, some of the BIA’s best and most useful guidance on asylum came before the “Ashcroft purge.” But, they still remain “good law” that Immigration Judges can use, despite the “any reason to deny” culture reflected by today’s “Trump holdover” BIA. Curiously, this negative asylum “culture” is tolerated and enabled by Garland, even though it directly contradicts promises made by Biden and other Dem politicos during the 2020 campaign! Why?
The Obama Administration also did not act to undo the damaging changes made during the Bush Administration. Thus, the ambivalent attitude of Dem Administrations toward justice for immigrants and building a fair, functional BIA has much to do with the current dysfunctional, unfair, and horribly administered mess at EOIR!
I was one of those BIA judges removed during the “Ashcroft purge,” essentially for “doing my job,” ruling fairly, and upholding the rule of law.Notably, many of the views of the “purged” judges were eventually reflected in Court of Appeals, and even a Supreme Court, reversals of the BIA.
Once “exiled” to the Arlington Immigration Court, except where bound by contrary BIA precedent, I ruled the same way that I had in many of the cases coming before me at the BIA. Guess what? I was seldom reversed by my former colleagues! I used to quip that “I finally got the ‘deference’ that I never got as Chair or a BIA judge.”
ICE appealed relatively few asylum and/or withholding grants; surprisingly often, their “closing summary” actually echoed what likely would have been in my final oral opinion, had it been been necessary to issue one. A number of BIA reversals by the Fourth Circuit Court of Appeals during my Arlington tenure made points that I, and/or my ”purged colleagues,” had raised in vain during my time on the BIA. A few even involved poorly-reasoned attempts by the BIA to reverse some of my decisions granting relief!
And, oh yes, there were the gross inconsistencies in unpublished “panel” decisions. Once, an Arlington colleague and I came down with opposite conclusions on whether a particular Virginia crime, on which there was then no BIA precedent, involved “moral turpitude.” Within a week of each other, we both received an answer from different BIA panels. We BOTH were reversed! As we joked at lunch, the only consistent rationale from the BIA was that “the IJ was wrong!”
The current BIA is a continuing blot on American justice, The same information and resources available to Professor Sayed in writing this article were available to Garland. How come she “gets” it and he (and his lieutenants) don’t? Why didn’t Garland hire Professor Sayed and a team of other experts like her to straighten out and rejuvenate EOIR?
And, let’s not forget that the increased public access to the “shadow docket,” even if still inadequate, is NOT the result of EOIR wanting to provide more transparency or any enlightened reforms stemming from Garland. No, it required aggressive litigation by the New York Legal Assistance Group (“NYLAG”) against EOIR to force even these improvements!
Does the public REALLY have to sue to get basic services and information that a properly functioning USG agency should already be providing? Merrick Garland seems to think so! How is this the “good government,” promised but not delivered by Biden in the critical areas of immigration, human rights, and racial justice?
Vulnerable asylum seekers and others whose lives depend on a just, professional, expert EOIR deserve better! Much, much better! The inexplicable and disastrous failure and refusal of Garland and the Biden Administration to deliver on the promise of due process and equal justice at EOIR will likely haunt the Democratic Party and our nation well into the future. As my friend Jason “The Asylumist” Dzubow would say, “It didn’t have to be this way!”
Kathleen Guthrie Woods American Journalist & Writer San Francisco, CA PHOTO: GoodreadsHon. Dana Leigh (“NanaDana”) Marks U.S. Immigration Judge (Ret.) San Francisco Immigration Court Past President, National Association of Immigration Judges; “Founding Mother of U.S. Asylum Law”
By the time she retired from San Francisco’s Immigration Court on December 31, 2021, Judge Dana Leigh Marks* had built an inspiring reputation as a leader, mentor, and advocate. She is known for her fierce advocacy for the court. She is known for her compassion and fairmindedness. She is known for her intelligence and wit, having coined oft-repeated, appropriate zingers that help people better understand the challenges of immigration court, including “Immigration judges do death penalty cases in a traffic court setting” and “Immigration is more complicated than tax law. How do I know this? Because there is no TurboTax for immigration law.”
Talking with her former colleagues—many of whom are now also her friends—is an uplifting experience. They speak of a woman who broke through barriers, applied the law fairly and compassionately, fought hard fights, and inspired others to join her. “She’s the GOAT of immigration judges!” declares Francisco Ugarte, Manager of the Immigration Defense Unit of San Francisco’s Public Defender’s Office.
Who is Judge Marks, and how did she positively influence and impact so many lives?
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Judge Marks also thrived in this arena because she saw beyond the expectation that her role was solely to facilitate deportations; she saw the humanity inherent in the proceedings. “Every story is individual,” she says, and every person deserves to be heard.
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“She showed us all how to be fierce advocates for justice—for what is true and right and just—without crossing over lines,” says Judge King. Jamil adds Judge Marks’s “tireless” work for the union and “giving a professional, female voice to immigration judges” to her list of accomplishments. “When she started, she was one of few women. After her, all these really amazing women came to the bench,” says Shugall, women Judge Marks mentored and encouraged to apply for the bench. That roster includes Judges Jamil, King, Miriam Hayward, Stockton, Webber, and Laura Ramirez. “She helped start that trajectory,” says Shugall.
“She helped create an inspiring model for how courts can be,” says Ugarte, and Judge Webber states, simply, “She inspires people all the time.”
“While she has had some limelight in her career, the vast majority of her work has been thankless,” says Judge King. “She perseveres solely because she believes it is important to make a difference wherever you can.”
*Today Judge Marks is known as “NanaDana,” a title that celebrates her role as caretaker for her granddaughter and helps people correctly pronounce her name (“dan-uh,” not “day-nuh”).
Kathleen Guthrie Woods is a long-time contributor to San Francisco Attorney magazine. She first interviewed Judge Marks, then-president of NAIJ, for “Understanding the Crisis in Our Immigration Courts” (Spring 2015).
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Every judge, lawyer, and law student in America, and particularly AG Garland and his lieutenants, should read Kathleen’s interview with Judge Marks (full version at link) about what “American judging” should, and could, be — all the way up to the Supremes!
Dana, my friend and colleague, your inspiring career is yet more evidence of the “then-available” talent who could have led long-overdue change at EOIR and the BIA. Like you, much of that talent has moved on to our Round Table, and we’re stuck with the dysfunctional mess at EOIR. But, others are arising in your image to fight for justice, sanity, and humanity from “the retail level on up” in our Federal Courts.
I will always think of you as the “Founding Mother of US Asylum Law” because of your stellar advocacy in Cardoza-Fonseca and your unending, unapologetic, and highly vocal commitment to due process, independent thinking, and judicial excellence.
As you probably remember, I was in Court for your OA in Cardoza-Fonseca, sitting at the SG’s table as you won the day for your client. My “client,” INS, “lost” that day. But, American justice, due process, and human rights won!
As it was for you and those many you inspired, “realizing the promise of Cardoza-Fonseca” became the “guiding light” of my subsequent judicial career at EOIR, on both the appellate and trial benches. Despite the more than quarter-century since Cardoza, the battle to make judges at all levels actually follow its dictates, and perhaps more importantly, its generous humanitarian spirit, is far from won!
Congrats on your new position as “NanaDana.” 😎 I always look forward to working with you and our amazing Round Table colleagues to give due process and fundamental fairness an unyielding voice before courts throughout America, and to continue the unending fight for best judicial practices in a life-determining system that has “lost its way” as millions needlessly suffer!”
We “Knightesses and Knights of our Round Table” 🛡⚔️ will “never let the bastards grind us down!” You continue to inspire all of us in our never ending quest for justice for the most vulnerable individuals among us!
“NanaDana’s” fierce fighting spirit continues to inspire our Round Table of Former Immigration Judges to new heights in the never-ending pursuit of “due process and fundamental fairness for all!” (Ironically, the latter was actually EOIR’s long-abandoned “vision!” )
Torture? What torture? It’s merely “enhanced fact-finding!”
Public realm“They all want to voluntarily waive further hearings and take final orders!” Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons
The phrase appears in multiple 9/11 volumes, usually uttered by top officials adamant that they were going to get things done, laws and rules be damned. Anti-terrorism efforts were always “lawyered to death” during the Clinton administration, Tenet complains in “Bush at War,” Bob Woodward’s 2002 book on the debates among the president and his national security team. In an interview with Woodward, Bush drops the phrase amid the machospeak — “dead or alive,” “bring ’em on” and the like — that became typical of his anti-terrorism rhetoric. “I had to show the American people the resolve of a commander in chief that was going to do whatever it took to win,” Bush explains. “No yielding. No equivocation. No, you know, lawyering this thing to death.” In “Against All Enemies,” Clarke recalls the evening of Sept. 11, 2001, when Bush snapped at an official who suggested that international law looked askance at military force as a tool of revenge. “I don’t care what the international lawyers say, we are going to kick some ass,” the president retorted.
The message was unmistakable: The law is an obstacle to effective counterterrorism. Worrying about procedural niceties is passe in a 9/11 world, an annoying impediment to the essential work of ass-kicking.
Except, they did lawyer this thing to death. Instead of disregarding the law, the Bush administration enlisted it. “Beginning almost immediately after September 11, 2001, [Vice President Dick] Cheney saw to it that some of the sharpest and best-trained lawyers in the country, working in secret in the White House and the United States Department of Justice, came up with legal justifications for a vast expansion of the government’s power in waging war on terror,” Jane Mayer writes in “The Dark Side,” her relentless 2008 compilation of the arguments and machinations of government lawyers after the attacks. Through public declarations and secret memos, the administration sought to remove limits on the president’s conduct of warfare and to deny terrorism suspects the protections of the Geneva Conventions by redefining them as unlawful enemy combatants. Nothing, Mayer argues of the latter effort, “more directly cleared the way for torture than this.”
To comprehend what our government can justify in the name of national security, consider the torture memos themselves, authored by the Justice Department’s Office of Legal Counsel between 2002 and 2005 to green-light CIA interrogation methods for terrorism suspects. Tactics such as cramped confinement, sleep deprivation and waterboarding were rebranded as “enhanced interrogation techniques,” legally and linguistically contorted to avoid the label of torture. Though the techniques could be cruel and inhuman, the OLC acknowledged in an August 2002 memo, they would constitute torture only if they produced pain equivalent to organ failure or death, and if the individual inflicting such pain really really meant to do so: “Even if the defendant knows that severe pain will result from his actions, if causing such harm is not his objective, he lacks the requisite specific intent.” It’s quite the sleight of hand, with torture moving from the body of the interrogated to the mind of the interrogator.
After devoting dozens of pages to the metaphysics of specific intent, the true meaning of “prolonged” mental harm or “imminent” death, and the elasticity of the Convention Against Torture, the memo concludes that none of it actually matters. Even if a particular interrogation method would cross some legal line, the relevant statute would be considered unconstitutional because it “impermissibly encroached” on the commander in chief’s authority to conduct warfare. Almost nowhere in these memos does the Justice Department curtail the power of the CIA to do as it pleases.
In fact, the OLC lawyers rely on assurances from the CIA itself to endorse such powers. In a second memo from August 2002, the lawyers ruminate on the use of cramped confinement boxes. “We have no information from the medical experts you have consulted that the limited duration for which the individual is kept in the boxes causes any substantial physical pain,” the memo states. Waterboarding likewise gets a pass. “You have informed us that this procedure does not inflict actual physical harm,” the memo states. “Based on your research . . . you do not anticipate that any prolonged mental harm would result from the use of the waterboard.”
You have informed us. Experts you have consulted. Based on your research. You do not anticipate. Such hand-washing words appear throughout the memos. The Justice Department relies on information provided by the CIA to reach its conclusions; the CIA then has the cover of the Justice Department to proceed with its interrogations. It’s a perfect circle of trust.
Yet the logic is itself tortured. In a May 2005 memo, the lawyers conclude that because no single technique inflicts “severe” pain amounting to torture, their combined use “would not be expected” to reach that level, either. As though embarrassed at such illogic, the memo attaches a triple-negative footnote: “We are not suggesting that combinations or repetitions of acts that do not individually cause severe physical pain could not result in severe physical pain.” Well, then, what exactly are you suggesting? Even when the OLC in 2004 officially withdrew its August 2002 memo following a public outcry and declared torture “abhorrent,” the lawyers added a footnote to the new memo assuring that they had reviewed the prior opinions on the treatment of detainees and “do not believe that any of their conclusions would be different under the standards set forth in this memorandum.”
In these documents, lawyers enable lawlessness. Another May 2005 memo concludes that, because the Convention Against Torture applies only to actions occurring under U.S. jurisdiction, the CIA’s creation of detention sites in other countries renders the convention “inapplicable.” Similarly, because the Eighth Amendment’s prohibition on cruel and unusual punishment is meant to protect people convicted of crimes, it should not apply to terrorism detainees — because they have not been officially convicted of anything. The lack of due process conveniently eliminates constitutional protections. In his introduction to “The Torture Memos: Rationalizing the Unthinkable,” David Cole describes the documents as “bad-faith lawyering,” which might be generous. It is another kind of lawyering to death, one in which the rule of law that the 9/11 Commission urged us to abide by becomes the victim.
Years later, the Senate Intelligence Committee would investigate the CIA’s post-9/11 interrogation program. Its massive report — the executive summary of which appeared as a 549-page book in 2014 — found that torture did not produce useful intelligence, that the interrogations were more brutal than the CIA let on, that the Justice Department did not independently verify the CIA’s information, and that the spy agency impeded oversight by Congress and the CIA inspector general. It explains that the CIA purported to oversee itself and, no surprise, that it deemed its interrogations effective and necessary, no matter the results. (If a detainee provided information, it meant the program worked; if he did not, it meant stricter applications of the techniques were needed; if still no information was forthcoming, the program had succeeded in proving he had none to give.)
“The CIA’s effectiveness representations were almost entirely inaccurate,” the Senate report concluded. It is one of the few lies of the war on terror unmasked by an official government investigation and public report, but just one of the many documented in the 9/11 literature.
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Sound painfully familiar? It should, to those of us “DOJ vets” who lived through this period. The use of the “third person,” “double and triple negatives,” “weasel words” like “you have given us to understand that,” “decision by committee” where a memo is routed through so many layers of bureaucracy that the original author or authors don’t even appear on its face — are all “devices” to diffuse and obscure responsibility and avoid clear accountability for controversial(and too often wrong) decisions!
During our time at the BIA, my fellow U.W. Badger, Judge Mike Heilman and I were often at odds on the law, particularly when it came to asylum. Anybody who doubts this should read Mike’s remarkable and famous (or infamous) “rabbi dissent” in Matter of H-, 21 I&N Dec. 337, 349 (BIA 1996) (Heilman, Board Member, dissenting). Nevertheless, one thing we agreed upon was requiring any decisions written for us to use the first person to reflect whose decision it actually was!
“Lawyers enable lawlessness.” How true! In 2002, DOJ lawyers (hand-chosen by the politicos) “tanked” and enabled, even encouraged, gross law violations by the CIA.
Fast forward to 2018. Then, White Nationalist AG Jeff Sessions exhorted his wholly-owned “judges” at EOIR not to treat DHS enforcement as a party before the court, but rather as a worthy “partner” in combatting the largely-fabricated “scourge” of illegal immigration (that actually, as we can now see, was propping up Trump’s economy). Is it surprising that precedent decisions by Sessions, Whitaker, and Barr favored DHS nearly 100% of the time and the BIA thereafter issued almost no precedents where the individual prevailed (not that there were many of those following “the Ashcroft purge,” even before Sessions)?
Asylum grant rates in Immigration Court tumbled precipitously, while both the trial, and particularly appellate, levels at EOIR were “packed” with judges whose main qualification appeared to be an expectation that they would churn out large numbers of removal orders without much analysis or consideration of the factors favoring the individual. Misogyny and anti-asylum, anti-private-lawyer attitudes (those “dirty lawyers”) were encouraged by Sessions as part the “culture” at EOIR, sometimes visibly rewarded by “elevation” to the BIA.
Interestingly, at the same time in 2002 that the group of DOJ attorneys was furiously working in secret to justify torture, in clear violation of the Convention Against Torture (“CAT”), another group in the DOJ, the BIA, was struggling to make the CAT work in “real world” litigated cases. A number of us dissented from the majority of our BIA colleagues’ wrong-headed and rather transparent attempt to “neuter” CAT protection from the outset. Unlike the “secret lawyers” at the DOJ, our work was public and had consequences not only for the humans involved, but for those of us who had the audacity to stand up for their rights under domestic and international law!
Here’s an excerpt from my long-forgotten dissenting opinion in Matter of J-E-, 22 I&N Dec. 291, 314-15 (BIA 2002) (Schmidt, Board Member, dissenting):
The majority concludes that the extreme mistreatment likely to befall this respondent in Haiti is not “torture,” but merely “cruel, inhuman or degrading treatment.” The majority further concludes that conduct defined as “torture” occurs in the Haitian detention system, but is not “likely” for this respondent. In short, the majority goes to great lengths to avoid applying the Convention Against Torture to this respondent.
We are in the early stages of the very difficult and thankless task of construing the Convention. Only time will tell whether the majority’s narrow reading of the torture definition and its highly technical approach to the standard of proof will be the long-term benchmarks for our country’s implementation of this international treaty.
Although I am certainly bound to follow and apply the majority’s constructions in all future cases, I do not believe that the majority adequately carries out the language or the purposes of the Convention and the implementing regulations. Therefore, I fear that we are failing to comply with our international obligations.
I conclude that the respondent is more likely than not to face officially sanctioned torture if returned to Haiti. Therefore, I would grant his application for deferral of removal under the Convention Against Torture and the implementing regulations. Consequently, I respectfully dissent.
Within a year of that decision, my dissenting colleagues and I were among those “purged” from the BIA by Ashcroft because of our views. I’d argue that EOIR has continued to go straight downhill since then, and is now in total free fall! Surely, any “facade” of quasi-judicial independence at the BIA has long-since crumbled. Yet, AG Garland pretends there is no problem. Garland’s apparent belief that this is still Judge Bell’s or Ben Civiletti’s or even Ed Levi’s DOJ is simply, demonstrably, wrong.
Today’s DOJ has been part and parcel of a highly inappropriate “weaponization” of the law and “Dred Scottification” directed against individual civil rights, migrants, voters, women, people of color, and a host of “others” who were on the far right “hit list” of the Trump kakistocracy. Nowhere has that been more evident than at the dysfunctional and institutionally biased EOIR. The problems plaguing American justice today have increased since 9-11. They will continue to fester and grow unless and until Garland faces reality and makes progressive leadership and judicial changes at EOIR to addresses the toxic culture of complicity and abusive use of the law to degrade individual and human rights. And, some real accountability at the rest of the badly-damaged DOJ should not be far behind.
Patrick Marley reports for the Milwaukee Journal-Sentinel:
MADISON — Shirley Abrahamson, the first woman to serve on the Wisconsin Supreme Court and its long-time chief justice, died Saturday after being diagnosed with pancreatic cancer, her son said Sunday. She was 87.
During her four decades on the court, Abrahamson developed a national reputation as a leader in liberal judicial thought.
“Among jurists I have encountered in the United States and abroad, Shirley Abrahamson is the very best,” U.S. Supreme Court Justice Ruth Bader Ginsburg said in a 2019 video message played at a ceremony for Abrahamson.
“As lawyer, law teacher and judge, she has inspired legions to follow in her way, to strive constantly to make the legal system genuinely equal and accessible to all who dwell in our fair land,” said Ginsburg, who died this September, just three months before Abrahamson.
Democratic Gov. Patrick Lucey appointed Abrahamson to the state Supreme Court in 1976 after Chief Justice Horace Wilkie died. Abrahamson stayed on the court for 43 years, longer than anyone else in state history.
“When I joined the court, I was given a voice — a voice that I have not hesitated to use,” Abrahamson said in a 2018 statement announcing she would not seek another term the following year. “The best expression of appreciation I can give the people who have elected and repeatedly re-elected me is to continue to speak with the clarity, forthrightness and compassion that come from a life I have tried to devote to service and to justice for all.”
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Read the rest of the compelling story of Chief Justice Abrahamson at the link.
I had then Professor Abrahamson for Tax Law at Wisconsin Law back around 1972.While she didn’t inspire me to become a tax lawyer, I remember her as a brilliant intellect and a formidable presence in class. A Professor whose every word you wanted to record. She also made a very complex subject understandable. That’s something I’ve always tried to do in the field of immigration.
I last saw her at a UW Law Reunion a few years ago. She was reminiscing to our group on her career and related to us how although she graduated at the top of her law school class, she had no job offers because of her gender. While I found her rise to the very top of our profession inspirational, I also felt outraged by the bias and stupidity of those who passed over such a brilliant intellect, who also had great leadership qualities, based solely on her gender.
R.I.P. ChiefJustice. You inspired generations of us to continue the fight for social justice and equal justice for all.
I feel privileged to have had you for a teacher and role model.
Sam Bernsen 1919 – 2020 Immigration Official, Law Partner, Educator, Mentor
A LEGAL GIANT PASSES: SAM BERNSEN (1919 – 2020) — Public Servant, Law Partner, Teacher, Scholar, Mentor, Humanitarian, Advocate For Due Process — He Helped Change The Face Of America For The Better!
By Paul Wickham Schmidt
Courtside Exclusive
July 30, 2020.I’d seen his name on briefs and old court cases (See, e.g., Vaccaro v. Bernsen, 267 F.2d 265 (5th Cir. 1959)). But, the first time I met Sam Bernsen was in January 1976, when I reported for work at the “Legacy” Immigration & Naturalization (“INS”) Office of General Counsel at the Chester Arthur Building in a rather run-down neighborhood within walking distance of the U.S. Capitol.
That building was perhaps a suitably shabby tribute to the “stepchild” status of INS within the hierarchy of the U.S. Department of Justice (“DOJ”). The carpet was shopworn, elevators slow, and the corridors dim as a result of the Ford Administration’s “Whip Inflation Now” (“WIN”) austerity program that had removed every other fluorescent lightbulb from the fixtures.
The office was a far cry from today’s Department of Homeland Security (“DHS”) massive legal operations: Just Sam, then the General Counsel, his Deputy, Ralph Farb, and two other “General Attorneys,” Stuart Shelby and Janice Podolny. Stu, Janice, and I actually shared an office with three desks (but only two telephones).
And it was always “Sam” not “Samuel.” Sam was his legal name, and he was very proud of it. Perhaps he connected it with “Uncle Sam.”
In any event, one of his “pet peeves” was when unknowing folks addressed him as “Samuel” in memos or on legal documents. I remember him vigorously “blacking out” the offending “uel” with his pen. His other pet peeve was when the server put parmesan cheese on his daily lunchtime bowl of minestrone soup at theGAO cafeteria!
Remarkably, I had gotten the job without personal interview by Sam. I attributed this to recommendations by Sam’s good friend and my first mentor Maury Roberts, then Chairman of the Board of Immigration Appeals (“BIA”), and another friend of Sam’s, Leon Ullman, then Deputy Assistant Attorney General at the DOJ Office of Legal Counsel.
Working for Sam was like having a personal daily seminar in American immigration law from a really great professor. Sam had done it all. And, he took the time to explain everything to those working with him.
During his teens, Sam started at the very bottom of the Civil Service system as an “assistant messenger” with the U.S. Attorney in New York and then the INS on Ellis Island. According to Sam, he never he never made “full messenger.” But, he did rise to the top of the ranks of Civil Servants as General Counsel.
In between, Sam was an immigration inspector, chair of a board of special inquiry (the predecessor to today’s Immigration Courts), chief adjudicator, Assistant Commissioner for Adjudications, and District Director in New Orleans as well as serving in the Army during World War II and later as a Major in the Air Force Reserve. He knew the policies and the stories behind every regulation and operating instruction, as well as the history of all the immigration statutes from the 1924 Act on.
America’s immigrant heritage that Sam observed at Ellis Island and in his childhood neighborhood in Brooklyn greatly influenced his life. The 1975 movie “Hester Street,” about Jewish immigrants in New York in the early 20th century, was one Sam’s and his wife Betty’s favorites.
Sam loved providing clear, concise, practical, understandable legal advice to the INS Commissioner (then General Leonard Chapman, Jr., former Commandant of the Marine Corps) andvarious “operating divisions” of the INS in what was then known as the Central Office (“CO”). It likely came from his experience as a field officer who had to make decisions based on what came out of the CO. Gen. Chapman had Sam on “constant call” for legal advice.
Although Sam’s background was “old school up through the ranks,” he had a “new school” attitude and vision about the future of immigration law. Like his friend Maury Roberts at the BIA, Sam pioneered the use of the “Attorney General’s Honors Program” (of which I was a product) to bring a “new generation” of younger attorneys into the INS. That was later expanded by his immediate successors as General Counsel, David Crosland (Carter Administration) and Maurice C. “Mike” Inman, Jr. (Reagan Administration).
Sam had progressive views on using court decisions and common sense to make the immigration laws function better and easier to administer for everyone, at least in some small ways. One of the things we worked on was the “INS Efficiency Act,” originally introduced by Senator Ted Kennedy (D-MA) in 1979 and eventually incorporated into the “Immigration & Nationality Act Amendments of 1981,” enacted into law by P.L. 97-116 (Dec. 29, 1981).
This made a number of “common sense” fixes that Sam had noted over the years both by studying appellate court decisions and from answering recurring questions from INS operating divisions and DOJ litigation divisions handling our cases. It harkens back to a bygone time when public service in immigration was about “doing the right thing” and “promoting the common good” rather than advancing restrictionist ideological agendas.
My all-time favorite project with Sam was the July 1976 legal opinion approving and recommending the use of “prosecutorial discretion” by INS enforcement officials. This provided a sound legal basis for the INS’s “deferred action” program. Later, it formed part of the basis for the Deferred Action for Childhood Arrivals (“DACA”) program that has so greatly benefitted both America and deserving young people while, at least for a short time, helping to bring some badly needed rationality, humanity, uniformity, and proper prioritization of resources to an all too often scattershot and out of control DHS enforcement program.
Although written by me, that opinion reflects the “essence of Sam” — enforcement with rationality, humanity, prudence, fairness, attention to the views of courts, and standards to prevent arbitrariness. A full copy of that 1976 memorandum is linked below. My initials are at the bottom of the last page.
In light of all the nonsense making the rounds today, our conclusion is worth keeping in mind:
The power of various officers of the Executive Branch to exercise prosecutorial discretion is inherent and does not depend on express statutory authorization. . . . [T]he Service’s attempts to set forth some standards for the exercise of prosecutorial discretion are particularly appropriate.
My time in the General Counsel’s Office with Sam was all too short. He retired in 1977. At the time, he had 38 years of Federal service, but was only 57-years-old, with several more distinguished careers in front of him.
Sam went on to become one of the “founding partners” and managing partner of the Washington, D.C. Office of the powerhouse national immigration firm Fragomen, Del Rey, & Bernsen, now the international law firm known as “Fragomen.” He also became a noted educator in the field, lecturing and writing for the American Immigration Lawyers Association (“AILA”) and serving as an Adjunct Professor of Law at Catholic University and American University. I hired some of his former students in various capacities in some of my “future incarnations.”
Along the way, Sam tried to “recruit” me for his firm. But, I wasn’t quite ready to make the jump. Later, however, we did “reunite” for a short “transition period” when I succeeded him as the managing partner of Fragomen DC in 1993.
What I remember most about Sam from our stint in private practice was how loyal his clients were and how much they trusted him with their fate and future. One of his greatest joys was working with students, young professionals, and student advisors on issues relating to F-1, J-1, and H-1 non-immigrant visas. We also did some projects relating to the interpretation of statutes and regulations that we had a role in drafting and enacting back in the General Counsel days. His clients and the Government officials he dealt with regarded Sam with reverence, as both the “ultimate authority” and the “total straight shooter,” a somewhat unusual combination for a lawyer in private practice.
Sam and I kept in touch for many years at AILA Conferences and other educational events, even after I rejoined Government in 1995 as Chair of the BIA. Sam was an avid tennis player, and from time to time I would run into folks who had met him in courts of both the tennis and legal variety. Indeed, Sam kindly served as the “featured speaker,” at my investiture as an Immigration Judge at the Arlington Immigration Court in June 2003.
Along with folks like Maury Roberts, Ralph Farb, Charlie Gordon, Irv Applemen, and Louisa Wilson, Sam was one of my mentors and one of the all-time greats of American law. He represented a constructive, scholarly, and humane view of public service that has all but disappeared from the scene. Yet, he also saw into the future and was able to “reinvent himself” in new and dynamic ways after leaving public service. I had to do some of the sameand always looked to Sam as a role model.
Sam’s decisions, opinions, scholarship, and humanity helped shape generations of American immigration law. His work both in and out of Government changed the lives of thousands of immigrants for the better and helped build our nation into the diverse country it is today. His many students and those he mentored over the years, like me, continued his legacy and formed the forerunner of the “New Due Process Army.”
America and the world are richer and better because of Sam’s life and contributions. Sam knew the law, perhaps better than any other, and he used it to further humane goals whenever possible. Would that we had more role models like Sam in positions of responsibility and authority today! Sam, thanks for everything, and may you rest in peace after a “life very well lived!”
Here is a link to our 1976 legal opinion on prosecutorial discretion:
