REPORT # 2 FROM FBA, AUSTIN: Read My Speech “APPELLATE LITIGATION IN TODAY’S BROKEN AND BIASED IMMIGRATION COURT SYSTEM: FOUR STEPS TO A WINNING COUNTERATTACK BY THE RELENTLESS ‘NEW DUE PROCESS ARMY’”

OUR DISTINGUISHED PANEL:

Judge Lory Diana Rosenberg, Ideas Consulting

Ofelia Calderon, Calderon & Seguin, PLC

Ben Winograd, Immigration & Refugee Appellate Center, LLP

FBA Austin — BIA Panel

APPELLATE LITIGATION IN TODAYS BROKEN AND BIASED IMMIGRATION COURT SYSTEM: FOUR STEPS TO A WINNING COUNTERATTACK BY THE RELENTLESS NEW DUE PROCESS ARMY

By

Paul Wickham Schmidt

U.S. Immigration Judge (Retired)

Member of the Roundtable Of Retired Immigration Judges

FBA Immigration Conference

Austin, Texas

May 18, 2019

I. INTRODUCTION

Once upon a time, there was a court system with a vision: Through teamwork and innovation be the worlds best administrative tribunals guaranteeing fairness and due process for all. Two decades later, that vision has become a nightmare.

Would a system with even the faintest respect for Due Process, the rule of law, and human life open so-called courtsin places where no legal services are available, using a variety of largely untrained judges,themselves operating on moronic and unethical production quotas,many appearing by poorly functioning and inadequate televideo? Would a real court system put out a fact sheetof blatant lies and nativist false narratives designed to denigrate the very individuals who seek justice before them and to discredit their dedicated, and often pro bono or low bono, attorneys? This system is as disgraceful as it is dysfunctional.

Today, the U.S. Immigration Court betrays due process, mockscompetent administration, and slaps a false veneer of justice on a deportation railroaddesigned to evade our solemn Constitutional responsibilities to guarantee due process and equal protection. It seeks to snuff out every existing legal right of migrants. Indeed, it is designed specifically to demean, dehumanize, and mistreat the very individuals whose rights and lives it is charged with protecting.

It cruelly betrays everything our country claims to stand for and baldly perverts our international obligations to protect refugees. In plain terms, the Immigration Court has become an intentionally hostile environmentfor migrants and their attorneys.

This hostility particularly targets the most vulnerable among us asylum applicants, mostly families, women, and children fleeing targeted violence and systematic femicidal actions in failed states; places where gangs, cartels, and corrupt officials have replaced any semblance of honest competent government willing and able to make reasonable efforts to protect its citizenry from persecution and torture. All of these states have long, largely unhappy histories with the United States. In my view and that of many others, their current sad condition is in no small measure intertwined with our failed policies over the years failed policies that we now are mindlessly doubling downupon.

My friends have given you the law.  Now, Im going to give you the facts.Lets go over to the seamy underside of reality,where the war for due process and the survival of democracy is being fought out every day. Because we cant really view the travesty taking place at the BIA as an isolated incident. Its part of an overall attack on Due Process,fundamental fairness, human decency and particularly asylum seekers, women, and children in todays weaponized”  Immigration Courts.

I, of course, hold harmless the FBA, the Burmanator,my fellow panelists, all of you, and anyone else of any importance whatsoever for the views I express this morning. They are mine, and mine alone, for which I take full responsibility. No party line, no sugar coating, no bureaucratic BS just the truth, the whole truth, and nothing but the truth, as I see it based on more than four- and one-half decades in the fray at all levels. In the words of country music superstar Toby Keith, Its me baby, with your wake-up call.

So here are my four tips for taking the fight to the forces of darkness through appellate litigation.

II. FOUR STEPS

First, If you lose before the Immigration Court, which is fairly likely under the current aggressively xenophobic dumbed downregime, take your appeals to the BIA and the Circuit Courts of Appeals. There are three good reasons for appealing: 1) in most cases it gives your client an automatic stay of removal pending appeal to the BIA; 2) appealing to the BIA ultimately gives you access to the realArticle III Courts that still operate more or less independently from the President and his Attorney General; and 3) who knows, even in the crapshoot worldof todays BIA, you might win.

After the Ashcroft Purge of 03,’’ which incidentally claimed both Judge Rosenberg and me among its casualties, the BIA became, in the words of my friend, gentleman, and scholar Peter Levinson, a facade of quasi-judicial independence.But, amazingly, it has gotten even worse since then. The facadehas now become a farce” – “judicial dark comedyif you will.

And, as I speak, incredibly, Barr is working hard to change the regulations to further dumb downthe BIA and extinguish any last remaining semblance of a fair and deliberative quasi-judicial process. If he gets his way, which is likely, the BIA will be packed with more restrictionist judges,decentralized so it ceases to function as even a ghost of a single deliberative body, and the system will be gamedso that any two hard lineBoard judges,acting as a fake panelwill be able to designate anti-asylum, anti-immigrant, and pro-DHS precedentswithout even consulting their colleagues.

Even more outrageously, Barr and his do-beesover at the Office of Immigration Litigation (OIL) intend to present this disingenuous mockery as the work of an expert tribunaldeserving so-called Chevron deference.Your job is to expose this fraud to the Article IIIs in all of its ugliness and malicious incompetence.

Yes, I know, many realFederal Judges dont like immigraton cases. Tough noogies” — thats their job!

I always tell my law students about the advantages of helping judges and opposing counsel operate within their comfort zonesso that they can get to yesfor your client. But, this assumes a system operating professionally and in basic good faith. In the end, its not about fulfilling the judges or opposing counsels career fantasies or self-images. Its about getting Due Process and justice for your client under law.

And, if Article III judges dont start living up to their oaths of office, enforcing fair and impartial asylum adjudication, and upholding Due Process and Equal Protection under our Constitution they will soon have nothing but immigration cases on their dockets. They will, in effect, become full time Immigration Judges whether they like it or not. Your job is not to let them off the hook.

Second, challenge the use of Attorney General precedents such as Matter of A-B- or Matter of M-S- on ethical grounds. The U.S. Court of Appeals for the D.C. Circuit, in a recent decision written by Judge Tatel invalidating the rulings of a military judge on ethical grounds said: This much is clear: whenever and however military judges are assigned, rehired, and reviewed, they must always maintain the appearance of impartiality.

Like military judges, Immigration Judges and BIA Judges sit on life or death matters. The same is true of the Attorney General when he or she chooses to intervene in an individual case purporting to act in a quasi-judicial capacity.

Yet, Attorney General Barr has very clearly lined himself up with the interests of the President and his partisan policies, as shown by his recent actions in connection with the Mueller report. And, previous Attorney General Jeff Sessions was a constant unapologetic cheerleader for DHS enforcement who publicly touted a White Nationalist restrictionist immigration agenda. In Sessionss case, that included references to dirty attorneysrepresenting asylum seekers, use of lies and demonstrably false narratives attempting to connect migrants with crimes, and urging Immigration Judges adjudicating asylum cases not to be moved by the compelling humanitarian facts of such cases.

Clearly, Barr and Sessions acted unethically and improperly in engaging in quasi-judicial decision making where they were so closely identified in public with the government party to the litigation. My gosh, in what justice systemis the chief prosecutorallowed to reach in and change results he doesnt like to favor the prosecution? Its like something out of Franz Kafka or the Stalinist justice system.

Their unethical participation should be a basis for invalidating their precedents.  In addition, individuals harmed by that unethical behavior should be entitled to new proceedings before fair and unbiased quasi-judicial officials in other words, they deserve a decision from a real judge, not a biased DOJ immigration enforcement politico.

Third, make a clear record of how due process is being intentionally undermined, bias institutionalized, and the rule of law mocked in todays Immigration Courts.  This record can be used before the Article III Courts, Congress, and future Presidents to insure that the system is changed, that an independent Article I U.S. Immigration Court free of Executive overreach and political control is created, and that guaranteeing due process and fundamental fairness to all is restored as that courts one and only mission.

Additionally, we are making an historical record of how those in charge and many of their underlings are intentionally abusing our constitutional system of justice or looking the other way and thus enabling such abuses. And, while many Article III judges have stood tall for the rule of law against such abuses, others have enabled those seeking to destroy equal justice in America. They must be confrontedwith their derelictions of duty. Their intransigence in the face of dire emergency and unrelenting human tragedy and injustice in our immigration system must be recorded for future generations. They must be held accountable.

Fourth, and finally, we must fight what some have referred to as the Dred Scottificationof foreign nationals in our legal system. The absolute mess at the BIA and in the Immigration Courts is a result of a policy of malicious incompetencealong with a concerted effort to make foreign nationals non-personsunder the Fifth Amendment.

And, while foreign nationals might be the most visible, they are by no means the only targets of this effort to de-personizeand effectively de-humanizeminority groups under the law and in our society. LGBTQ individuals, minority voters, immigrants, Hispanic Americans, African Americans, women, the poor, lawyers, journalists, Muslims, liberals, civil servants, and Democrats are also on the due process hit list.

III. CONCLUSION & CHARGE

In conclusion, the failure of Due Process at the BIA is part of a larger assault on Due Process in our justice system. I have told you that to thwart                                                                                                                                                                                                                                                                                                                                                                                                                                                                            it and to restore our precious Constitutional protections we must: 1) take appeals; 2) challenge the  precedents resulting from Sessionss and Barrs unethical participation in the quasi-judicial process;  3) make the historical record; and 4)  fight Dred Scottification.”  

I also encourage all of you to read and subscribe (its free) to my blog, immigrationcourtside.com, The Voice of the New Due Process Army.If you like what you have just heard, you can find the longer, 12-step version, that I recently gave to the Louisiana State Bar on Courtside.

Folks, the antidote to malicious incompetenceis righteous competence. The U.S Immigration Court system is on the verge of collapse. And, there is every reason to believe that the misguided enforce and detain to the maxpolicies, with resulting Aimless Docket Reshuffling,intentionally jacked upand uncontrollable court backlogs, and dumbed downjudicial facades being pursued by this Administration and furthered by the spineless sycophants in EOIR management will drive the Immigration Courts over the edge.  

When that happens, a large chunk of the entire American justice system and the due process guarantees that make America great and different from most of the rest of the world will go down with it. As the late Dr. Martin Luther King, Jr., said in his Letter from a Birmingham Jail, injustice anywhere is a threat to justice everywhere.

The Immigration Courts once-noble due process vision is being mocked and trashed before our very eyes by arrogant folks who think that they can get away with destroying our legal system to further their selfish political interests.

Now is the time to take a stand for fundamental fairness and equal justice under law! Join the New Due Process Army and fight for a just future for everyone in America! Due process forever! Malicious incompetencenever!

(05-17-19)

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PWS

05-20-19