"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.
“Gerardo A. Portillo petitions for review of a decision of the Board of Immigration Appeals (“BIA”) affirming his order of removal and denying his application for adjustment of status. Because we find that a conviction under Massachusetts General Laws (“MGL”) ch. 269, § 11C is not categorically a firearm offense as defined by 8 U.S.C. § 1227(a)(2)(C), we grant the petition for review, vacate the decision below, and remand for further proceedings. … Accordingly, without resorting to “legal imagination,” we conclude that MGL ch. 269, § 11C sweeps more broadly than the federal offense, and Portillo need not produce an actual case to demonstrate that overbreadth. … For the reasons stated above, we grant the petition for review, vacate the BIA’s opinion, and remand for further proceedings consistent with this decision.”
Congrats to the NDPA “litigation team” of Klein, Church, & Gillespie!
Notably, the unanimous 1st Circuit did a detailed 24-page analysis to get this one right. This is the type of scholarship and effort one might expect, but doesn’t consistently get, from the BIA.
Remarkably, this case has now been pending for more than six years at EOIR.Now, largely as a consequence of EOIR’s, toxic “how can we get to no” bias, present over the past several Administrations, it’s back to “square one” with no end in sight.
THAT’S how a system builds uncontrollable backlog! Maybe pruning out the “deadwood” and bringing in “practical scholar-experts” as judges at the appellate and trial levels wouldn’t solve all the problems that have been building up for decades at EOIR. But, it sure would be a great start on a better future!
Hon. Ilyce Shugall U.S Immigration Judge (Ret) Managing Attorney at ILD and Senior Counsel in the Immigration Program at Community Legal Services in East Palo Alto, CA Adjunct Professor, VIISTA Villanova Member, Round Table of Former Immigration Judges PHOTO: VIISTA Villanova
I started my post-law school immigration law career at ProBAR in Harlingen, Texas, as an Equal Justice Works Fellow from September 1999 to September 2001. In May, 2023, I had the privilege of returning to ProBAR as a volunteer with the ABA Commission on Immigration (COI) to engage in a week of pro bono service. I have been a Commission member for almost three years. My return, over twenty years after I left the Rio Grande Valley, provided me perspective, and caused me to reflect on the many changes as well as the constants in the South Texas border region, where I learned how to be a fierce immigration advocate. I was privileged to spend the week with welcoming ProBAR staff, COI colleagues, and the COI director, Meredith Linsky, who was my boss and mentor at ProBAR, a hero to the immigrants’ rights movement, and is someone I am proud to call a colleague and friend.
Our first day of our pro bono week began at the new ProBAR office. When I walked into the office, I felt like I was in a different world! ProBAR’s new office space is large, spacious, beautiful, and inviting. It is clear that much thought went into the design and structure of the office, considering the need for private office space, open collaborative space, large quiet spaces, conference rooms, outdoor space, and a gym and yoga room to ensure staff can decompress and energize before, during, or after long, challenging, and emotionally draining days. The office is a sharp contrast to the ProBAR office where I worked—two rooms on the second floor of an old, pest-infested house. The new office is equipped with state-of-the-art technology, another contrast from my experience, where we used dial up internet and unplugged the fax machine before we could access the internet. We learned that ProBAR now has a staff of 270 people. In 1999 when I started, we were a staff of three—the ProBAR director, the volunteer paralegal, and me. I am thrilled to see the investment in the staff through hiring and creating a livable workspace. Comfortable, functional, supportive workspace is crucial to the sustainability of the demanding work.
Our schedule for the week included meeting with partner organizations in Brownsville and Matamoros, meeting with individuals detained at the Port Isabel Detention Center (PIDC), touring children’s shelters, and visiting La Posada Providencia, a welcoming shelter for many immigrants and refugees. I was impressed by the resiliency and responsiveness of organizations in the region. The increase in resources for noncitizens in the Rio Grande Valley was striking and is unquestionably due to necessity. The humanitarian crisis at the border is unlike anything I saw between 1999 and 2001 and the need has increased exponentially. I was impressed by the partnerships established by the ProBAR team. The increased staffing has allowed ProBAR to form and maintain crucial partnerships throughout the Rio Grande Valley. During my time at ProBAR, we relied on trusted partnerships; however, due to our limited staffing, we were unable to engage in outreach or foster relationships with many organizations. The current partnerships with shelters and other social services organizations are crucial to ProBAR’s ability to meet the needs to the community they serve.
ProBAR’s presence in Brownsville is remarkable. We utilized ProBAR’s small office close to the border. This space was crucial when the Migrant Protection Protocols (MPP) program was still in place, as ProBAR staff served clients facing removal proceedings in the tent courts. The office space on the border continues to provide essential access to clients and the social services agencies that serve them. It allows the ProBAR staff to do outreach, education, and intake at the non-legal organizations that serve mutual clients. For example, while in Brownsville, we provided legal consultations to numerous individuals staying at a Brownsville shelter. We also visited one of the unaccompanied children’s shelters in Brownsville, where ProBAR staff provide services.
During our pro bono week, we had the opportunity to travel to PIDC twice to provide consultations to recently arrived asylum seekers. It was bittersweet to return to the detention center I frequented from 1999 to 2001, when I traveled daily to what was then called Port Isabel Service Processing Center (PISPC) – PIDC is a more appropriate name. PIDC has not changed much. The entrance, lobby, attorney visitation area, and court space have been remodeled. I recall a dingy dirty lobby with a pay phone I used regularly to call the ProBAR office after long afternoons of presentations and consultations. The lobby is now clean, spacious, and the pay phone is gone. However, the interior of the detention center remains the same- a jail with razor wire, barbed wire, and no freedom of movement. Also similar was ProBAR’s access to the facility due to the reputation the agency has built over the years. When I went to PISPC daily, I felt respected by guards and government officials. I learned the importance of building those relationships to ensure access to those who needed the services. ProBAR’s reputation endures, and the relationships remain strong. ProBAR’s continued ability to provide Know Your Rights presentations and consultations in the facility is crucial to serving the needs of thousands of individuals every year.
In the two days I conducted consultations with noncitizens at PIDC, I met men from Venezuela, Honduras, and Guatemala. The nationalities of individuals detained have shifted over the years, but the reasons they have fled their homes remains constant. They are fleeing political violence and oppression, gang violence, cartel violence, and government instability. The men detained at PIDC endured exceptional hardship, danger, and suffering to arrive at the United States border to seek refuge. While United States detention policies and conditions were cruel when I worked at ProBAR, they are exponentially worse today. Currently, noncitizens are forced to stay in unsanitary and unsafe refugee camps in Matamoros often for months while trying to request protection in the United States. They face disease, kidnapping, rape, and torture in Matamoros while the United States and Mexican governments turn a blind eye and collaborate to keep them from crossing the bridge into Brownsville. When those lucky enough to find a way into the United States arrive, many are forced to remain detained in Customs and Border Protection custody for weeks, sleeping on the floor with limited to no access to showers and in freezing rooms or cells. They then must navigate the new confusing and complex asylum rule without counsel. While we were unable to provide representation, the men we met with were grateful for our explanation of the legal process, as well as the pro bono legal consultations we provided.
As part of our trip, we also had the opportunity to go to Matamoros and meet with partners at the Sidewalk School. The plan to walk over the bridge, meet with Sidewalk School staff, and tour one of the refugee shelters took much time and coordination on the part of ProBAR and ABA staff. Unlike when I lived and worked in Harlingen, when going to Matamoros was often a spur of the moment decision to have dinner or go shopping, today, numerous considerations must be assessed. Matamoros was a safe city when I crossed regularly. However, today, due to the United States’ and Mexico’s war on drugs, Matamoros is often dangerous, particularly for refugees hoping to reach the United States. I appreciate the care, planning, and coordination that went into our day in Matamoros. Witnessing the situation at the base of the bridge as well as the refugee camp was crucial to gaining a true understanding of the consequences of United States immigration law and policy changes over the last several years. Photos of the bridge and the camp provide a glimpse into the reality that refugees are living. However, the photos did not prepare me for what I saw and experienced. Walking into and around the shelter full of makeshift tents, no sanitation, no services, in 90+ degree temperatures with soaring humidity was horrifying. People approached us for information and help, desperate to access medical care and safety. I fought back tears the entire time we were in the camp. No one should live in these conditions, and no one who lives in the camps is there by choice. Refugees tolerate the dangerous, unsanitary conditions that are making them sick because they were forced to leave their homes. Their flight was not voluntary. Seeing the camp provided me even greater perspective on the situations they fled. I left feeling sad, horrified, and angry at the United States government policies that created the humanitarian crisis in Matamoros. It is avoidable. It can be changed for the better. Instead, the United States government recently finalized a rule to make it harder for those seeking protection to access the United States asylum system. This rule will exacerbate the problems in Matamoros and has caused and will continue to cause greater human suffering on both sides of the border.
I am thankful for my week with ProBAR. I appreciated starting my days as I started many days when I lived in Harlingen decades ago, running on the path along the Arroyo Colorado in the heat and humidity, among the beautiful lush green plants, chirping birds, and adorable bunnies. I found peace and energy running on the path, which carried me through the days of the harsh realities of human suffering and unfair laws and policies. My time at ProBAR reminded me why I continue to work as an immigration attorney, why I work at another amazing nonprofit, Immigrant Legal Defense, to provide free legal services to underserved communities, including noncitizens in ICE detention.
Author
Ilyce Shugall
Managing Attorney at Immigrant Legal Defense
Ilyce is currently a Managing Attorney at ILD and Senior Counsel in the Immigration Program at Community Legal Services in East Palo Alto (CLSEPA). She was an adjunct professor in the Villanova Interdisciplinary Immigration Studies Training for Advocates from January 2021 to December 2021. She was previously the Director of the Immigrant Legal Defense Program at the Justice and Diversity Center of the Bar Association of San Francisco. Prior to joining JDC, Ilyce served for 18 months as an immigration judge in the San Francisco Immigration Court. Prior to serving as an immigration judge, Ilyce was the Directing Attorney of the Immigration Program at CLSEPA from 2012-2017. Under Ilyce’s leadership, CLSEPA’s immigration staff grew from four to twenty. Ilyce also served temporarily as the first legal director for the San Francisco Immigrant Legal Defense Collaborative at the Bar Association of San Francisco in 2015. For 10 years, Ilyce was an attorney at Van Der Hout, LLP. Three of those years she spent as a partner. Before joining the private sector, she worked at the South Texas Pro Bono Asylum Representation Project (ProBAR) as a National Association of Public Interest Law/Equal Justice Fellow. Ilyce received the 2016 National Pro Bono Services Award from the American Immigration Lawyers Association; and was a 2015 Silicon Valley Business Journal’s “Women of Influence” awardee. Ilyce is a commissioner on the American Bar Association’s Commission on Immigration and previously served as a commissioner on the State Bar of California Commission on Immigration and Nationality Law. She was NIPNLG’s update editor for Immigration Law and the Family from 2012-2017, and has published numerous articles on immigration law. Ilyce is an active member of the Round Table of Former Immigration Judges. Ilyce holds a JD from DePaul University College of Law, and a BA from the University of Wisconsin, Madison.
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Talk about a professional career spent on the “front lines” of fighting for due process and humanity! Thanks for all you do and for being such an inspiring role model, my friend (and fellow Badger). It’s an honor to be your colleague on the Round Table and the VIISTA Villanova Program!
I was detailed to the Port Isabel Detention Center shortly before my retirement. I remember it pretty much as Ilyce describes it today.
The facility and court personnel were nice and helpful. But, there was an aura of grimness, despair, and wastefulness hanging over everything that just couldn’t be dispelled. Leaving the facility every night have me a sense of relief.
I think that all so-called policy makers in the Biden Administration should be required to experience a week in one of their immigration prisons as a prerequisite for obtaining or retaining their jobs. Sadly, and inexcusably, we now have folks making life or death decisions about immigration and human rights policy and the future of our nation who know less and have less perspective than Ilyce and others had after completing their one-year EJW Fellowships! The lack of expertise, compassion, creativity, and common sense in the Biden Administration’s immigration hierarchy/bureaucracy shows!
To quote Ilyce, about the largely self-created “humanitarian crisis” at the border: “It is avoidable. It can be changed for the better.” My question is why isn’t a Democratic Administration that many voted for to solve problems and make things better at the border getting the job done?
PROSECUTORIAL HISTORY: In 897, at the “Cadaver Synod,” Pope Stephen VI appointed himself to prosecute the corpse of his dead predecessor, Pope Formosus. (Spoiler alert: He got a conviction.) In 2023, DHS has decreed that prosecuting cases in person before EOIR is no longer worth their valuable time. PAINTING: Jean-Paul Laurens (1870) —Public Realm
Provided by a veteran immigration practitioner:
DHS No Appear 1DHS No Appear 2
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Notably, the four categories of “mandatory appearance” described by the Deputy Chief Counsel apply to only an infinitesimally small percentage of the roughly 2 million cases currently pending before the Immigration Courts.
Compare this with the treatment of the private bar who experience:
* Aimless reshuffling and rescheduling of their already-prepared cases, often without notice or with inadequate notice of the new hearing date;
* Arbitrary and capricious denials by some Immigration Judges of reasonable motions to continue;
* Possible disciplinary referrals for failure to appear at a scheduled hearing when listed as counsel of record.
Would the DOJ submit a similar missive to U.S. District Court Judges unilaterally announcing that they would only “selectively appear” in criminal and civil cases where the U.S. Government is a party? I doubt it!
So, what’s an Immigration Judge who does not want to perform DHS’s job for them to do? Contempt of court, you say? After all, the IJ’s authority to hold any party or counsel in Immigration Court proceeding in contempt is right there in plain language in the INA. See, INA section 240(b)(1).
Ah, but there is a catch! A big one! Although the contempt provision was added by Congress more than a quarter of century ago, AGs of both parties have steadfastly refused to promulgate the necessary implementing regulations.
Evidently, the theory is that while IJs might be qualified to issue potential death sentences to migrants in Immigration Court, they can’t be trusted to fairly and reasonably use their contempt authority on lawyers who, after all, are mostly U.S. citizens and whose livelihood might be adversely affected. Essentially, the life of a migrant is worth less than a monetary fine for contempt to a U.S. lawyer.
Additionally, there apparently was a special concern about giving IJ’s authority to regulate the conduct of their “fellow Government attorneys” at INS, and later DHS. After all, that would be interfering with another Government agency’s “sacrosanct” authority to regulate and discipline (or not) its own employees.
In many ways, under Garland, the Immigration Courts are losing what limited public respect the might still have possessed and accelerating the move backwards to an “inquisitorial model” to replace the “adversary model” for decison-making. Ironically, this reverses over a half century of efforts by Congress, reformers, and sometimes the Executive itself to make Immigration Courts function as part of the adversary system — in other words, like “real” courts of law.
As one informed expert commenter stated upon learning of this latest development:
As we have all been saying, (1) EOIR doesn’t view itself as part of an ecosystem which also includes ICE, the private bar, non-profits, law school clinics, interpreters, USCIS, etc.; and (2) EOIR is run at it’s upper level by mindless, gutless people suffering from a complete lack of imagination existing in a bubble.
As a practical matter, I assume ICE is strategically choosing not to appear in hearings before IJs who deny everything? If not, it could actually work in your favor. In truth, the UNHCR model doesn’t envision asylum being heard in adversarial hearings; as Paul has articulately stated, it sees asylum as a collaborative effort between adjudicator and asylum seeker.
For a “practical application” of the “collaborative effort” model promoted by the UNHCR, see Matter of S-M-J-, 21 I&N Dec. 722 (BIAS 1997).
Donald M. Kerwin, Senior Research Associate, University of Notre Dame
In forwarding this article, Don says: “The report makes the case that the backlog has nothing to do with the immigration courts and everything to do with systemic, unresolved problems in the broader US immigration system.”
The US immigration court system seeks to “fairly, expeditiously, and uniformly administer and interpret US immigration laws” (DOJ 2022a). It represents the first exposure of many immigrants to due process and the rule of law in the United States, and occupies an integral role in the larger US immigration system. Yet it labors under a massive backlog of pending cases that undermines its core goals and objectives. The backlog reached 1.87 million cases in the first quarter of FY 2023 (Straut-Eppsteiner 2023, 6). This paper attributes the backlog to systemic failures in the broader immigration system that negatively affect the immigration courts, such as:
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Visa backlogs, United States Citizen and Immigration Services (USCIS) application processing delays, and other bottlenecks in legal immigration processes.
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The immense disparity in funding between the court system and the Department of Homeland Security (DHS) agencies that feed cases into the courts.
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The failure of Congress to pass broad immigration reform legislation that could ease pressure on the enforcement and court systems.
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The lack of standard judicial authorities vested in Immigration Judges (IJs), limiting their ability to close cases; pressure parties to “settle” cases; and manage their dockets.
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The absence of a statute of limitations for civil immigration offenses.
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Past DHS failures to establish and adhere to enforcement priorities and to exercise prosecutorial discretion (PD) throughout the removal adjudication process, including in initial decisions to prosecute.
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The location of the Executive Office for Immigration Review (EOIR), which oversees US immigration courts, within the nation’s preeminent law enforcement agency, the Department of Justice (DOJ).
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The misconception of many policymakers that the court system should primarily serve as an adjunct to DHS.
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A past record of temporary judge reassignments and government shutdowns.
The paper supports a well-resourced and independent immigration court system devoted to producing the right decisions under the law. Following a short introduction, a long section on “Causes and Solutions to the Backlog” examines the multi-faceted causes of the backlog, and offers an integrated, wide-ranging set of recommendations to reverse and ultimately eliminate the backlog. The “Conclusion” summarizes the paper’s topline findings and policy proposals.
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This is a “treasure trove” of information about systemic failure of our Immigration Courts, for which I am deeply grateful to Don & Evin.
So, is EOIR a symptom or a cause of immigration dysfunction, or a mixture of both?
I’m inclined to believe that notwithstanding the evidence described in the article that EOIR is largely a “victim” of deeper problems in our immigration system, there is a strong case to be made that more principled Attorneys General, more courageous and talented EOIR personnel, and a Democratic Party with democratic values and a spine could have thrust EOIR into a due process and legal expertise leadership role, thereby making the current immigration system operate more fairly, efficiently, and in the public interest.
It’s a shame that we’ll never know the truth. That just leaves commentators and scholars to analyze the carnage and to speculate on “what might have been” or “what could be” in a different political atmosphere.
This is perhaps interesting, even significant, from an historical standpoint. But, the practical effect remains to be seen.
If I could have just one immigration “reform, it would be an Article I EOIR! Without due process, all other reforms and improvements are doomed to failure!
“Dagoberto Luna petitions for review of the Board of Immigration Appeals’ dismissal of his appeal of an immigration judge’s denial of his motion to rescind an in absentia removal order. Luna contends he received a defective Notice to Appear that renders the in absentia removal order invalid. We agree. We GRANT Luna’s petition, VACATE, and REMAND for further proceedings.”
[Hats off yet again to superlitigator Raed Gonzalez!]
When will they learn, when will they ever learn? The ultra-conservative 5th Circuit pays attention when Raed litigates in behalf of individuals seeking due process and fundamental fairness at EOIR. Why doesn’t Garland?
Women find “trial by ordeal” can be the order of the day at Garland’s BIA:
Woman Being “Tried By Ordeal” 17th Century Woodcut Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160Woman Being “Tried By Ordeal” 17th Century Woodcut Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160
Dan Kowalski reports for LexisNexis Immigration Community:
CA11 on VAWA, “Extreme Cruelty,” Chevron: Ruiz v. Atty Gen.
“Esmelda Ruiz, a native and citizen of Peru, appeals the Board of Immigration Appeals’ determination that she is ineligible for relief under 8 U.S.C. § 1229b(b)(2), a provision whose language was originally adopted as part of the Violence Against Women Act of 1994 and that outlines the conditions under which certain “battered spouse[s] or child[ren]” qualify for discretionary cancellation of removal. As relevant here, it requires a petitioning alien to show that she “has been battered or subjected to extreme cruelty” by her spouse or parent. 8 U.S.C. § 1229b(b)(2)(A)(i). Ruiz contends that the Immigration Judge and the BIA made two errors in refusing her cancellation request. First, she maintains that, as a matter of law, they misinterpreted the statutory term “extreme cruelty” to require proof of physical—as distinguished from mental or emotional—abuse. And second, she asserts that, having misread the law, the IJ and the BIA wrongly concluded that she doesn’t qualify for discretionary relief. We agree with Ruiz that the IJ and the BIA misinterpreted § 1229b(b)(2) and thereby applied an erroneous legal standard in evaluating her request for cancellation of removal. Accordingly, we grant her petition for review and remand to the BIA for further consideration. … For the foregoing reasons, we agree with Ruiz—and hold— that the BIA misinterpreted 8 U.S.C. § 1229b(b)(2). The term “extreme cruelty” does not require a petitioning alien to prove that she suffered physical abuse in order to qualify for discretionary cancellation of removal; proof of mental or emotional abuse is sufficient to satisfy the “extreme cruelty” prong of § 1229b(b)(2)’s five-prong standard. We therefore GRANT the petition in part and REMAND to the BIA for further proceedings consistent with this opinion.”
Not only did the supposedly “expert” BIA get the standard completely wrong, but Garland’s OIL continued to throw up specious arguments defending the BIA’s abusive treatment of women!
When you start with “No,” and then “reason” backwards to get there, bad things happen. Frankly, the Biden Administration was elected to “clean house” 🧹 at EOIR and to bring systemic due process, expertise, best practices, and impartiality to our nation’s dysfunctional immigration tribunals — with literally millions of lives and the future of democracy at stake! Why haven’t they done it? How do they continue to get away with it?
Lindsay Toczylowski Executive Director, Immigrant Defenders “ I always tell the new immigration attorneys at Immigrant Defenders Law Center to never forget just how stacked against our clients the odds are in immigration court.“
Lindsay writes on Linkedin:
Barometer of whether an asylum system is functioning is not “keeping the numbers low” at the border. We expected as T42 ended to see a temporary uptick due to pent up demand, but seeing the opposite indicates new deterrence measures are making asylum inaccessible to those who need protection the most.
It is obvious to those of us on-the-ground that despite no “lines” at the ports of entry there are many people here in Tijuana desperate to seek protection in the US, as evidenced by crowd at our Immigrant Defenders Law Center legal clinic today. People want to avail themselves of a safe, fair and orderly system.
This is currently impossible.
There were more than 200 people at the shelter, mostly families with small kids. When we asked whether or not people had been able to register with CBPone, most raised their hands that they had. When we asked whether they had an appt, only four had successfully made one. 4 out of 200.
We encountered excruciating cases like this asylum seeking mom & her daughter w/ severe autism. She asked if there is a special process for ppl like her, given her daughter needs medical attn, but we have to tell her to just keep trying the app. She has been waiting for months.
We continue to encounter cases where asylum seekers are unable to register with CBPone app at all. We finally registered a mom traveling alone w/ 2 babies via one of our atty’s phones, and now she can try for an appt. She has family in Los Angeles area who are waiting for her.
For people suffering from PTSD & other mental health conditions related to the horrors they fled, the constant state of anxiety waiting for an appointment is hell. One of the moms told me that every night she & her daughter cry and pray that it will be the day they can finally get help.
I am immensely proud of our San Diego based cross border team for continuing to show up and keep fighting despite the odds.
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Well said, Lindsay! Thanks for all you and your colleagues do for due process in America!
Eliza C. Klein, a retired immigration judge, said the asylum case backlog “creates a second class of citizens.”Credit…Taylor Glascock for The New York Times
Eliza C. Klein, who left her position as an immigration judge in Chicago in April, said the latest increase in illegal border crossings will strain the understaffed work force as they prioritize migrants who crossed recently.
That will leave some older cases to languish even longer, she said.
“This is a great tragedy because it creates a second class of citizens,” Ms. Klein, who started working as an immigration judge in the Clinton administration, said of those immigrants who have been waiting years for an answer to their case. The oldest case Ms. Klein ever adjudicated had been pending in the court for 35 years, she said.
“It’s a disgrace,” Ms. Klein said. “My perspective, my thought, is that we’re not committed in this country to having a just system.”
While crowds of migrants continued to seek refuge in the United States after the lifting of Title 42, U.S. officials said the border remained relatively orderly. About 10,000 people crossed the border on Thursday, a historically large number, but that dropped significantly to about 6,200 on Friday.
Tens of thousands of migrants continued to wait in makeshift camps on both sides of the border for a chance to request sanctuary in the United States. The administration remained concerned about overcrowding; Border Patrol held more than 24,000 migrants in custody on Friday, well over the agency’s maximum capacity of roughly 20,000 in its detention facilities.
. . . .
Mimi Tsankov, the president of the National Association of Immigration Judges, said that to truly address the backlog, the Biden administration would need to do more than simply hire more judges. She said that the government should increase funding for better technology and bigger legal teams, and that Congress should reform the nation’s immigration laws.
“The immigration courts are failing,” said Samuel B. Cole, the judge association’s executive vice president. “There needs to be broad systemic change.”
. . . . .
Judge Charles Honeyman, who spent 24 years as an immigration judge and retired in 2020, said he came away from his job believing the United States would need to do a better job of deterring fraud while protecting those who would be harmed in their home country.
When handling an asylum case, Mr. Honeyman said he would assess the person’s application and examine the state of their home country by reading reports from the State Department and nonprofits. Many of the applicants lacked attorneys; he believes some cases that he denied might have turned out differently if the migrants had had legal representation.
In trying to root out fraud, he would compare a person’s testimony with the answers they had given to an asylum officer or Border Patrol agent.
. . . .
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Read the full article at the link.
EOIR ABUSES ASYLUM SEEKERS — The Problem Goes Deeper Than The Number Of Judges: Quality & Culture Matter!
By Paul Wickham Schmidt
U.S. Immigration Judge (Retired)
Courtside Exclusive
May 16, 2023
While the NYT article notes that the majority of asylum cases are eventually denied on the merits, this data is often presented in a misleading way by the Government, and unfortunately, sometimes the media. According to TRAC Immigration, during the period Oct 2000 to April 2023, approximately 43% of asylum seekers who received a merits decision were granted asylum or some other type of relief. Approximately 57% were denied. https://trac.syr.edu/phptools/immigration/asylum/
Even in an overall hostile system, where individuals are often required to proceed without lawyers, and grant/denial rates among Immigration Judges vary by astounding levels (so great as to present prima facie due process issues), asylum seekers succeed on the merits of their claims at a very respectable rate. In a properly staffed and administered system where the focus was on due process and fundamental fairness for individuals, that number would almost certainly be substantially higher.
Moreover, the data suggests that toward the end of the Obama Administration and during the entire Trump Administration, the asylum system was improperly manipulated to increase denials.
I think there are three reasons for the precipitous decline in asylum grant rates, largely unrelated to the merits of the claims. First, Attorneys General Jeff Sessions and Bill Barr overruled some of the leading administrative precedents supporting grants of asylum. In the process, they made it crystal clear that they considered Immigration Judges to be their subordinate employees within the political branch of Government and that denial, deportation, and assistance to their “partners” at DHS Enforcement (actually DHS is a party before EOIR, not a “partner”) were the preferred results at EOIR.
Second, in greatly expanding the number of Immigration Judges, Sessions and Barr appointed almost exclusively from the ranks of prosecutors and government attorneys, even elevating an inordinate number of individuals with no immigration and human rights experience whatsoever. Not only were well-qualified individuals with experience representing individuals in Immigration Court largely passed over and discouraged from applying, but some of the best Immigration Judges quit or retired prematurely as a matter of conscience because of the nakedly anti-immigrant pro enforcement “culture” promoted at EOIR.
Additionally, the nationwide appellate court and precedent setter, the BIA, was expanded and “packed” with some Immigration Judges who denied virtually all of the asylum cases coming before them and had reputations of hostility to the private bar and asylum seekers. Remarkably, Attorney General Garland has done little to address this debilitating situation at the BIA.
Third, since the latter years of the Obama Administration, when a vastly overhyped “border surge” took place, political officials of both parties have improperly “weaponized” EOIR as a “deterrent” to asylum seekers, focusing on expeditious denials of asylum rather than the due process and expert tribunal functions the agency was supposed to serve. The result has been a “culture of denial and deportation” with particular emphasis on finding ways to “say no” to women and individuals of color seeking asylum.
The NYT Article also mentions that asylum merits decisions require a higher standard of proof than “credible fear determinations.” That’s true. But the suggestion that the standards are much higher is misleading. In fact, the standards governing merits grants of asylum before the Asylum Office and EOIR are supposed to be extremely generous.
In the seminal case, INS v. Cardoza-Fonseca, the Court said that “well-founded fear” is a generous standard, one that could be satisfied by a 10% chance of persecution. In implementing this holding, the BIA found in Matter of Mogharrabi that asylum could be granted even where the chances of persecution were substantially less than probable.
There is as also a regulation, 8 C.F.R. 208.13, issued under the Bush I Administration, that creates a rebuttable presumption of future persecution based on past persecution.
The problem is that none of these generous and remedial provisions relating to asylum has ever been properly, consistently, and uniformly applied within EOIR. As someone who during my time on the bench took these standards to heart, I found that a substantial majority of merits asylum cases coming before me could and should be granted under a proper application of asylum law.
Consequently, I am skeptical of judges who deny virtually all asylum claims. Likewise, I question the claims by political officials of both parties who pretend, without actual knowledge, that almost all asylum applicants at the border are “mere economic migrants” who deserve to be quickly and summarily removed.
Actually, under some circumstances, severe economic hardships can amount to persecution. Moreover, under the legally required “mixed motive” analysis for asylum, an economic aspect does not automatically obviate other qualifying grounds.
So, at its root, “credible fear” is actually an even more generous application of what is already supposed to be (but often isn’t in reality) a very generous standard for asylum. The alleged “disconnect” between the number of individuals found to have credible fear and the number actually granted asylum on the merits appears to be more a function of defective and overly restrictive decision-making at EOIR than it is of unjustified generosity of Asylum Officers screening for credible fear. It’s also important to remember that at the credible fear stage, individuals haven’t had time to marshal the substantial corroborating evidence eventually required (some would say unrealistically and unreasonably) in formal merits asylum hearings before EOIR.
Finally, just aimlessly increasing the number of Immigration Judges, without solving the systemic legal, logistical, management, quality control, training, and “cultural” problems infecting EOIR creates its own set of new problems.
Recently, a veteran practitioner before EOIR wrote the following:
In about eleven years, our local DMV went from twelve (12) judges in Baltimore and Arlington in 2012 to a hundred (100) judges in 2023 (8 BAL, 18 HYA, 30 WAS, 9 FCIAC, 14 RIAC, 21 STE). That’s an increase of 733.33%. This seismic expansion has resulted in many attorneys being overscheduled for individual hearings, which has an adverse effect on our clients, our ethical obligations, due process, and mental health.
Well-prepared attorneys, many serving pro bono or “low bono,” are absolutely essential to due process and fundamental fairness in Immigration Court, particularly in cases involving asylum and other forms of protection. For EOIR to schedule cases in a manner that does not take into consideration the legitimate needs and capacities of those practicing before their courts is nothing short of malpractice on the part of DOJ leadership.
There is a silver lining here. The EOIR judicial hiring program gives NDPA stars a chance to get on the bench at the retail level level, bring much needed balance and perspective, and to develop the credentials for future Article III judicial appointments. Since change isn’t coming “from the top,” we need to make it happen at the “grass roots level!” Keep those applications coming!
For my colleague Judge “Sir Jeffrey” Chase, Judge Maria Baldini-Potermin is the name that jumps out:
Maria T. Baldini-Potermin, Immigration Judge, Chicago Immigration Court
Maria T. Baldini-Potermin was appointed as an immigration judge to begin hearing cases in May 2023. Judge Baldini-Potermin earned a Bachelor of Arts in 1990 from the University of Dayton and a Juris Doctor in 1997 from the University of Minnesota Law School. From 2008 to 2023, she was the owner and managing attorney at Maria Baldini- Potermin and Associates PC in Chicago. During this time, from 2009 to 2023, she served as the author of “Immigration Trial Handbook,” a book she co-authored from 2008 to 2009. Also, from 2009 to 2021, she served as the update editor for “Immigration Law and Crimes” . From 2009 to 2021, she also served as a member of the board of directors of the National Immigration Project of the National Lawyers Guild, where she served as board chair and interim executive director in 2019. From 2007 to 2008, she was an associate immigration attorney at Gostynska Frakt Ltd., and from 2001 to 2007, at Scott D. Pollock and Associates PC in Chicago. From 1999 to 2001, she served as a National Association of Public Interest Law (NAPIL) Equal Justice Fellow with the Midwest Immigrant Rights Center (now National Immigrant Justice Center) in Chicago. From 1997 to 1999, she served as a NAPIL Equal Justice Fellow with the Immigrant Law Center of Minnesota (Oficina Legal) in Saint Paul, Minnesota. From 1996 to 1997, she served as an immigration law clerk at Guyton Law Office in Saint Paul, Minnesota. From 1994 to 1997, she trained law students at the Asylum Law Project in Minneapolis. From 1992 to 1994, she served as an accredited representative, and from 1991 to 1992, as a paralegal, with the South Texas Pro Bono Asylum Representation Project (ProBAR) in Harlingen, Texas. From 1990 to 1991, she served as a paralegal with the Brownsville Catholic Charities Canada Asylum Project in Brownsville, Texas. Judge Baldini-Potermin is a member of the Illinois State Bar and the Minnesota State Bar. She is admitted to practice before the U.S. Courts of Appeals for the Second, Fifth, Sixth, and Seventh Circuits, and the Supreme Court of the United States.
For me, it’s Judge Angela Munro whom I worked with on training for the Annual Conference during my time at EOIR:
Angela Munro, Immigration Judge, Boston Immigration Court
Angela Munro was appointed as an immigration judge to begin hearing cases in May 2023. Judge Munro earned a Bachelor of Arts in 2000 from Brown University, a Master of Arts in 2004 from the Fletcher School at Tufts University, and a Juris Doctor in 2008 from Northeastern University School of Law. From 2010 to 2023, she served as an attorney advisor at the Board of Immigration Appeals, EOIR. From 2008 to 2010, she served as a judicial law clerk at the Boston Immigration Court entering on duty through the Attorney General’s Honors Program. Judge Munro is a member of the Massachusetts Bar and the New York State Bar.
Another bio that caught my eye is Judge Hannah B. Kubica who once practiced at Joyce & Associates in Boston with my long-time friend and Round Table colleague Judge Bill Joyce.
Hannah B. Kubica, Immigration Judge, Boston Immigration Court
Hannah B. Kubica was appointed as an immigration judge to begin hearing cases in May 2023. Judge Kubica earned a Bachelor of Arts in 2005 from Vanderbilt University and a Juris Doctor in 2008 from the Villanova University Charles Widger School of Law. From 2016 to 2023, she was in private practice as an associate, and later as a senior associate, at McHaffey & Nice LLC in Boston where she represented noncitizens before EOIR and U.S. Citizenship and Immigration Services, Department of Homeland Security. During her time in private practice, she provided pro bono services at Rian Immigrant Center, formerly the Irish International Immigrant Center. From 2016 to 2011, she was in private practice as an associate at Joyce & Associates PC in Boston. From 2011 to 2008, Judge Kubica was in private practice at GNP Law Firm in the greater Boston area, and at Weir & Partners LLC in Philadelphia. Judge Kubica is a member of the Massachusetts Bar and the Pennsylvania Bar.
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Congrats and good luck to all of the new Judges. Remember: The job is about due process, fundamental fairness, practical scholarship, and best practices, NOT “pleasing your handlers” or making DHS Enforcement happy!
We’re “making progress” in getting more NDPA practical scholars on the ImmigrationBench! But, we need even more to fundamentally change the culture at EOIR and to make due process the overriding mission, as it was supposed to be! So, NDPA’ers, keep those judicial applications coming!
Dems control the composition of one of the most consequential Federal Appellate Tribunals, the BIA. Is THIS really the look that they want to project? https://www.flickr.com/photos/rasputin243/ Creative Commons License
Dan Kowalski reports for Lexis Nexis Immigration Community:
CA1 on Changed Country Conditions (Guatemala) – Mendez Esteban v. Garland
“[T]he 2017 report and the testimony from Mendez do not — together or independently — establish that changes in Guatemala have fundamentally altered the specific conditions that gave rise to Mendez’s substantiated claim of political persecution. Accordingly, the BIA’s conclusion that DHS rebutted Mendez’s presumption of well-founded fear is not supported by substantial evidence. We therefore find Mendez statutorily eligible for asylum. … [W]e grant the petition for review as to Mendez’s claims for asylum and withholding of removal. We deny the petition as to Mendez’s claim for CAT protection. We accordingly affirm the denial of Mendez’s CAT claim, vacate the denials of Mendez’s political opinion-based asylum and withholding of removal claims, and remand to the IJ for further proceedings consistent with this opinion.”
“Appellant Ishmael Kosh petitions us to review the order from the Board of Immigration Appeals (“BIA”) that terminated his asylum status and denied his applications for withholding of removal and protection under the Convention Against Torture. He maintains that the Department of Homeland Security (“DHS”) improperly sought to terminate his asylum status in asylum-only proceedings because he first entered the United States under the Visa Waiver Program. Per Kosh, that limiting program no longer applies to him, so he is entitled to complete-jurisdiction removal proceedings instead. In such unlimited proceedings, asylees can raise an adjustment-of-status claim as a defense to removal. We conclude that, if Kosh re-entered the country as an asylee without signing a new Visa Waiver Program form limiting his defenses, he is entitled to complete-jurisdiction proceedings. We thus grant his petition for review, vacate the BIA’s decision, and remand for further proceedings consistent with this opinion.”
As many practitioners know, the BIA’s continual bogus “fundamentally changed circumstances” findings for countries where the human rights conditions have remained abysmal for decades, certainly NOT materially improving, and in most cases in the Northern Triangle getting worse, are an endemic problem. Following a finding of past persecution, ICE, not the respondent, bears the burden of proof!
If that burden were honestly and expertly applied, considering individualized fear of harm, ICE would rebut the presumption by a preponderance of the evidence in only a minuscule percentage of cases. Certainly, that was my experience over 21 years on both the trial and appellate benches at EOIR.
Moreover, in this and most other cases of past persecution, even if ICE were able to satisfy its burden of rebutting the presumption of future persecution by a preponderance of the credible evidence, the respondent would be a “slam dunk” for a grant of discretionary asylum on the basis of “other serious harm.” It’s not clear that any of the three judicial entities that considered this case understood and properly applied the “other serious harm” concept.
The BIA’s chronic failure to fulfill its proper role of insuring a fair application of asylum and other protection laws and to provide guidance “shutting down” IJs who routinely manufacture bogus reasons to deny is a systemic denial of due process and failure of judicial professionalism. That it continues to happen under a Dem Administration pledged to restore the rule of law and due process for asylum seekers is astounding, deplorable, and a cause for concern about what today’s Dems really stand for!
This case should have been granted by the IJ years ago. An appeal by ICE on this feeble showing should have been subject to summary dismissal.
That cases like Mendez Esteban are still aimlessly kicking around Garland’s dysfunctional system in an elusive search for justice is a serious indictment of the Biden Administration’s approach to asylum and to achieving long overdue, life-changing, and readily achievable reforms that are within their power without legislative action. It also helps explain why Garland has neither reduced backlogs nor sufficiently improved professionalism, even with many more IJs on the bench.
Practical tips for fighting against bogus “presumption rebuttals” by IJs under 8 CFR 208.13:
Insist that the IJ actually shift the burden to ICE to rebut the presumption of future persecution based on past persecution.
Use the regulatory definition of “reasonably available” internal relocation to fight bogus IJ findings. For example, countries in the Northern Triangle are “postage stamp sized” and plagued by nationwide violence and corruption. The idea of “reasonably available internal location” under all the factors is prima facie absurd! (A “better BIA” would have already pointed this out in a precedent.)
Argue for a discretionary grant of asylum even in the absence of a current well founded fear based on 1) “compelling circumstances” arising out of the past persecution (“Chen grant”), and/or “other serious harm” under the regulations — a much broader concept than persecution that does NOT require nexus to a protected ground.
Knowing and using the law aggressively to assert your client’s rights, making the record, and exhausting all appellate options are the best defenses to biased, anti-asylum, often disconnected from reality denials of life-saving relief to your clients!
Knightess of the Round Table — Somebody’s listening to our message! Too bad the Biden Administration doesn’t! It would save lots of time, resources, and lives if they did!
JUSTICE JACKSON delivered the opinion of the Court.
Under 8 U. S. C. §1252(d)(1), a noncitizen who seeks to challenge an order of removal in court must first exhaust certain administrative remedies. This case presents two questions regarding that statutory provision. For the rea- sons explained below, we hold that §1252(d)(1) is not juris- dictional. We hold further that a noncitizen need not re- quest discretionary forms of administrative review, like reconsideration of an unfavorable Board of Immigration Appeals determination, in order to satisfy §1252(d)(1)’s exhaustion requirement.1
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Read the full opinion at the link.
So, why is a Dem Administration under AG Garland taking anti-immigrant positions that can’t even garner a single vote on the most far-right Supremes in recent history?
Incredibly, the DOJ made the absurdist argument that, in violation of the statute, an additional unnecessary layer of procedural BS should be inflicted on individuals already dealing with the trauma of a dysfunctional system running a 2 million plus backlog and a BIA with more than 80,000 un-adjudicated appeals at last count! Where’s the common sense? Where’s the competence? Where’s the “better government” that the Biden Administration promised?
Meanwhile, our Round Table continues to put our centuries of collective experience in due process, fundamental fairness, and practical problem solving to use! The Biden Administration might not be paying attention. But, many others, including Article III Judges, are taking advantage and listening.
BIA Asylum Panel In Action. Garland’s largely “holdover” BIA continues to align itself with Trump’s extreme right, nativist judges, as the progressives and advocates who actually supported Dems in the last two elections are left to stew, along with their dehumanized asylum seeking clients. Albrecht Dürer, Public domain, via Wikimedia Commons
Dan Kowalski reports for LexisNexis Immigration Community:
“Under the correct analysis, the record here compels a conclusion that Honduran rural landownership in this case is a common fundamental characteristic because Turcios-Flores should not be required to change this aspect of her identity to avoid persecution given the demonstrated importance of landownership to her. Therefore, we remand to the Board for further explanation of whether this group meets the social distinction and particularity requirements as well as the remaining asylum considerations.”
To reach their wrongconclusion that “rural landowners” are not a “particular social group,” the BIA ignored its own precedent. See, e.g., Matter of Acosta, 19 I&N Dec. 211, 233 (BIA 1985), modified on other grounds.
Class warfare and persecution of property owners was at the heart of most Marxist-Leninist Communist dictatorships.
Remarkably, under Garland, the BIA continues to parrot the same biased, restrictionist nonsense spouted by the Trumpist dissenter in this case, Judge Chad A. Readler. He was roundly criticized as unqualified by Democrats and advocates at the time of his nomination. This opposition had lots to do with his biased, anti-immigrant views flowing from his then “boss,” nativist/racist former AG Jeff “Gonzo Apocalypto” Sessions!
For example, it’s worth reviewing the comments of the Alliance for Justice on Reacher’s nomination:
On June 7, 2018, President Trump announced his intention to nominate a Justice Department official, Chad Readler, to the Sixth Circuit Court of Appeals. This announcement was particularly striking for one notable reason: on that very day, Readler had become a leader in the Trump Administration’s fight to destroy the Affordable Care Act and the protections it offers to millions of Americans. Readler, as acting head of the Civil Division, filed a brief to strike down the ACA, including its protections for people with preexisting conditions. If Readler and the Trump Justice Department are successful, the ACA’s protections for tens of millions of people, including cancer patients, people with diabetes, pregnant women, and many other Americans, would be removed.
As the acting head of the Department of Justice Civil Division under Attorney General Jeff Sessions, Readler defended the Trump Administration’s most odious policies, including separating immigrant children from their parents at the border, while claiming that “[e]verything that the Attorney General does that I’ve been involved with he’s . . . being very respectful of precedent and the text of the statute and proper role of agencies.”
His track record is equally atrocious in other respects. He has tried to undermine public education in Ohio; supported the efforts of Betsy DeVos to protect fraudulent for-profit schools; fought to make it harder for persons of color to vote; advanced the Trump Administration’s anti-LGBTQ and anti-reproductive rights agenda; fought to allow tobacco companies to advertise to children, including outside day care centers; sought to undermine the independence of the Consumer Financial Protection Bureau; and advocated for executing minors.
Chad Readler’s record of diehard advocacy for right-wing causes suggests he will be anything but an independent, fair-minded jurist. Alliance for Justice strongly opposes Readler’s confirmation.
It’s remarkable and infuriating that once in office, Democrats in the Biden Administration have aligned themselves with the toxic views of extreme, nativist right wing judges whose xenophobic, atrocious views they campaigned against! They have done this in a huge “life or death” Federal Court system that they completely control and have authority to reform without legislation!
Matter of Morales-Morales, 28 I&N Dec. 714 (BIA 2023)
BIA Headnote:
(1) The Board of Immigration Appeals has authority to accept what are otherwise untimely appeals, and consider them timely, in certain situations because 8 C.F.R. § 1003.38(b) (2022) is a claim-processing rule and not a jurisdictional provision. Matter of Liadov, 23 I&N Dec. 990 (BIA 2006), overruled.
(2) The Board will accept a late-filed appeal where a party can establish that equitable tolling applies, which requires the party to show both diligence in the filing of the notice of appeal and that an extraordinary circumstance prevented timely filing.
FOR THE RESPONDENT: Mario Salgado, Esquire, San Francisco, California
Notably, but perhaps predictably for those who follow the BIA’s generally “respondent/due process unfriendly” jurisprudence, the “good news” that the BIA has belatedly decided to follow the 2d, 5th, and 9th Circuits on equitable tolling is “tempered” by the result in this case — denial of the motion to reconsider and accept the appeal!
Evidently, among its 82,000+ backlog, the BIA was unable to identify a case where correctly applying equitable tolling would actually BENEFIT the respondent, rather than just requiring a different, largely contrived, analysis to “get to no!”This continues a depressing and highly inappropriate long-standing tendency of the BIA to provide negative examples of how to apply potentially remedial rules.
Presumably, after 17 years of the BIA’s wrong-headed precedent Matter of Liadov, everyone understands that the BIA is “programmed to deny.” What’s needed is “reprogramming”to recognize and grant motions based on “equitable tolling.”
It’s also remarkable that the “highest tribunal” of a dysfunctional organization, notorious for losing files; failing to provide timely, correct notice; cancelling hearings without notice on the hearing date; switching Immigration Judges without notice in a system where the identity of the judge is too often “outcome determinative;” and “cutting” DHS and itself almost endless “breaks” and “exceptions” for their sloppy, lazy, and sometimes ethnically questionable practices sees fit to “pontificate” so self-righteously on what’s “due diligence” and “extraordinary circumstances” for the private bar. The “message” is pretty clear: Denial is the “preferred” (or default, or de facto presumed) result!
If either of the foregoing concepts were applied to EOIR and DHS with the same stringency they are to individuals and their representatives, both agencies would have been forced out of business long ago!
This system is totally screwed up! Dems must ask themselves why Garland and his senior leadership have failed to “unscrew it,” and what can be done to deal with their democracy-and-life-threatening indolence and inattention to quality jurisprudence, due process, fundamental fairness, and best practices.
1. Plaintiff CLAUDIA ESCOTO, while working as a Staff Assistant to Assistant Chief Immigration Judge Scott Laurent was subjected to egregious and continual sexual harassment, including Judge Laurent describing in graphic detail other judges and employees he wanted to have sex with, or had sex with, in what positions he wished to have sex and in what manner. Judge Scott Laurent discussed in lurid detail the physical attributes of attorneys who came before him to represent litigants and the government and further discussed attraction to and/or sexual relations with other judges. Judge Laurent regularly subjected Plaintiff to rambling diatribes regarding the breasts, attractiveness and whether he deemed the female attorneys and judges “fuckable.” Judge Laurent also regularly discussed female colleagues and employees in a degrading and sexual manner, discussing in graphic detail who he wanted to have sex with, the physical attributes of female employees and judges. Judge Laurent engaged in this conduct even when in judge’s robes when on the bench. Judge Laurent subjected Plaintiff to graphic description of sexual relations he was having with his wife and other women, including during what was supposed to be work hours.
2. Judge Laurent touched Plaintiff without her consent in a sexual manner, repeatedly placing his hand on Plaintiff’s upper leg when she traveled in a car with him, and ensuring his right arm touched her breasts. This was unwelcome and deeply disturbing to Plaintiff.
3. Judge Laurent further demeaned Plaintiff’s sexual orientation, claiming he could turn her straight (referring to his supposed sexual prowess if Plaintiff had sexual relations with him), referred to Plaintiff’s wife’s breasts and attractiveness and demanded that Plaintiff come “sit on Daddy’s lap,” referring to himself as “Daddy.” He would also proclaim “I can turn you straight, Baby!”
4. Judge Laurent’s conduct caused Plaintiff severe emotional impacts, including causing fainting spells, among other severe reactions. Plaintiff requested a medical leave, during which time
Judge Laurent continued to contact Plaintiff to pressure her to work. He denied Plaintiff’s extension of leave, improperly placing her on AWOL status, even though Plaintiff had leave time. Plaintiff requested a reasonable accommodation of reassignment to a different supervisor where she would not be subjected to this egregious sexual harassment. This request was denied by Defendant. Defendant then acted on Judge Laurent’s recommendation to fire Plaintiff shortly after receiving Plaintiff’s complaints of sexual harassment, discrimination, and retaliation, having taken no actions to address Plaintiff’s complaints, other than to fire her.
5. Judge Laurent’s actions show no respect for the sacred office he holds, demean the entire justice system, and turn what should be a model employment environment into a cesspool, where Plaintiff was made to endure an onslaught of sexual comments and sexual advances, ultimately being fired when she had the bravery to come forward. Plaintiff CLAUDIA ESCOTO, as well as the justice system itself, deserved so much better. Defendant must be held to account.
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These are only unproven allegations in a court complaint at this point! But, if any of this is true, it would confirm that there are some deep “cultural” issues at EOIR that leadership has not dealt with.
“Expedited/dedicated dockets” and other “haste make waste” nonsense that misses the mark at EOIR aren’t going to solve systemic issues affecting due process and fundamental fairness for the millions whose lives and futures are pending in our broken and dysfunctional Immigration Courts!
Pooja Asnani reports from Sanctuary For Families NY:
Hi all,
I wanted to share a recent asylum grant won by my colleagues, Deirdre Stradone, Amalia Chiapperino, and Kelly Becker-Smith, before IJ McKee at the NYC immigration court.
Client is Honduran Garifuna woman who survived DV and gang violence, and, importantly for the grant of asylum, forced sterilization. Below is a quick summary of the case, and I’m highlighting this asylum grant because our team, specifically Deirdre, has been seeing more and more cases of forced sterilization among Central American women.
Respondent is a forty-five-year-old Honduran Garifuna woman who has been the victim of forced sterilization, severe verbal, physical, and sexual violence, robbery and death threats by gang members, and intentional deprivation of law enforcement assistance and medical attention due to her race and gender. Overwhelming evidence affirms the horrific practice of forced sterilization against Garifuna women, as well as the high levels of domestic and gang violence in Honduras that take place with impunity. The evidence shows that government authorities largely fail to respond to complaints of abuse, or when they do respond, fail to do so effectively.
Deirdre has been collaborating with the Mt. Sinai Human Rights program to study the forced sterilization of Central American women, a topic she had encountered over and over again in her asylum cases, with the researchers agreeing that this particular violation of human rights is likely more common than is being research and reported. Deirdre has found several reports and studies conducted regarding indigenous, mainly Garifuna, women living with HIV who have been victims of this practice. As you all probably know, and stemming from the response to China’s one-child policy, forced sterilization is defined in the Immigration and Nationality Act (“INA”) as “per se persecution on account of political opinion.”
I wanted to share this because we’re realizing that that it may be a more wide-spread practice than we initially thought, and often times, clients don’t even realized they have been sterilized when they come to us. We have been asking specific questions about this in our intakes, and often have been sending our clients to get a medical evaluation to determine whether they have been sterilized. Unfortunately, we have had a several clients discover in the course of our representation that they had been sterilized without their consent, and we believe that many other women may have experienced this without realizing.
While we have worked on several cases with similar facts, but interestingly, this is the first asylum case we have had were the IJ (McKee) granted specifically based on the forced sterilization claim (political opinion), and not on the ARCG DV claim.
Our team at Sanctuary is working to put together a training to help issue-spot, discuss common fact patterns, and how to prepare and brief these cases; stay tuned for more details.
CC’ing the team who worked on this case, including Deirdre, if folks have questions.
Thanks,
Pooja
Deirdre Stradone Attorney Sanctuary for Families NYKelly Becker-Smith Attorney Sanctuary for Families NYAmalia Chiapperino Sanctuary for Families NY
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Dan Kowalski reports from LexisNexis Immigration Community:
Christina Brown writes: “I wanted to share the attached decision in case it is helpful to others. IJ Burgie granted the asylum claim of an indigenous Guatemalan applicant finding past persecution based on severe economic deprivation (DHS failed to rebut). She also granted based on a pattern and practice of severe economic persecution of indigenous Guatemalans.”
Many congrats and much appreciation to all involved!
Even as the Biden Administration and GOP nativists push their “big myth” that most seeking asylum at the Southern Border are “mere economic migrants” not “true refugees,” these results from those fortunate enough to have expert lawyers, fair Immigration Judges, and reasonable time to prepare, document, and present continue to show the intellectual and moral bankruptcy of the racially-biased restrictionist claims. Indeed, to get to the “any reason to deny” nonsense, which also is often mis-employed by the BIA, one has to intentionally ignore or misconstrue both the real country conditions in the Northern Triangle and the inclusive “at least one central reason” mixed motive language of the INA.
These are NOT “one offs!”No, they are actually recurring situations! A properly functioning, fair, expert BIA, committed to a correct and generous interpretation of asylum laws, would have incorporated these and other recurring “grant” situations into a series of binding precedents. These, in turn, would allow lawyers, Asylum Officers, IJs, and ACCs to recognize and prioritize these cases for “fast track grants.”
That, in turn, would enable many asylum applicants to be timely admitted in legal asylum status, work authorized, and on the way to green cards and naturalization. Significantly, it would also avoid the largely self-created, self-aggravated, ever-growing EOIR backlogs that seem to “drive” the “haste makes waste,” sloppy, “any reason to deny” decision-making that still exists throughout our broken and biased asylum system.
The REAL problem here its that meritorious cases like or similar to these that require expert recognition, proper preparation and documentation, and officials committed to “protection not rejection,” are likely to be summarily rejected and wrongfully pushed back across the border by the “Biden/Miller Lite” procedures and toxic official attitudes toward asylum now being promoted by both the Administration and the GOP.
It’s disturbingly clear that the needed positive changes in the immigration legal system are NOT “coming from the top” in the Biden Administration. Consequently, in addition to recruiting, training, and mentoring ever more members of the NDPA (including non-attorney accredited representatives), to hold the system accountable, it is ESSENTIAL that we get more NDPA “practical experts” on the Immigration Bench to spread and force due process, fundamental fairness, and best interpretations/practices on a resistant system from the “retail level” — the “grass roots” if you will.
That requires that NDPA experts with the qualifications apply for Immigration Judge vacancies en masse! You can’t be selected if you don’t apply! And, without better Federal Judges at all levels not only will injustice continue to prevail for immigrants, but our entire democracy will be imperiled! Better judges for a better America!
Yes, as I have acknowledged in prior posts, EOIR can be a tough place to work. But, human lives and the future of our democracy depend on our changing the system, from “the bottom up” if that’s the only way. This system is too important, with too much at stake, to be left to the whims and false agendas of tone-deaf politicos and inept, “go along to get along” bureaucrats!
