"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
Well, friends, since “inception” on December 22, 2016:
Neatly 7 1/2 years elapsed;
Three different Administrations;
5,526 posts (including this one);
1,152 comments;
43 “Pages;”
403 subscribers;
Over 1,000,000 “views” (estimated);
More than 140,400 “blocks” by my hard-working “spam catcher!”
It’s time for me to take a break from Courtside to “rest, refresh, and refocus” as they say in the “sabbatical business.” After all, I’ve been “retired” since June 30, 2016, going on eight years!
To mark the occasion, here’s a “reprint” of one of my favorites from that first month, December 2016:
“Immigration advocates have repeatedly criticized the Obama administration for its increased reliance on detention facilities, particularly for Central American families, who they argue should be treated as refugees fleeing violent home countries rather than as priorities for deportation.
They also say that the growing number of apprehended migrants on the border, as reflected in the new Homeland Security figures, indicate that home raids and detentions of families from Central America isn’t working as a deterrent.”
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The “enforcement only” approach to forced migration from Central America has been an extraordinarily expensive total failure. But, the misguided attempt to “prioritize” cases of families seeking refuge from violence has been a major contributing factor in creating docket disfunction (“Aimless Docket Reshuffling”) in the United States Immigration Courts.
And, as a result, cases ready for trial that should have been heard as scheduled in Immigration Court have been “orbited” to the end of the docket where it is doubtful they ever will be reached. When political officials, who don’t understand the Immigration Court and are not committed to its due process mission, order the rearrangement of existing dockets without input from the trial judges, lawyers, court administrators, and members of the public who are most affected, only bad things can happen. And, they have!
PWS
12/31/16
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True today as it was then!
🇺🇸 Thanks for reading and engaging, best wishes and, of course, “Due Process Forever!”
Since choice of law is dependent on venue in Immigration Court proceedings, the controlling circuit law is not affected by a change in the administrative control court and will only change upon the granting of a motion to change venue. Matter of Garcia, 28 I&N Dec. 693 (BIA 2023), followed.
“In a decision dated October 24, 2023, the Immigration Judge denied the respondent’s application for deferral of removal under the regulations implementing the Convention Against Torture (“CAT”). The respondent, a native and citizen of Morocco, has appealed that decision. The Department of Homeland Security (“DHS”) has not responded to the appeal. Because we agree with the respondent that additional fact-finding and analysis are needed and the Immigration Judge misapplied choice of law precedent, we will remand these proceedings for the entry of a new decision. … The record reflects that the respondent has been detained at the Moshannon Valley Processing Center (“Moshannon”) in Philipsburg, Pennsylvania, throughout these proceedings. The proceedings commenced with the filing of a Notice to Appear (“NTA”) on April 18, 2023, at the Cleveland, Ohio Immigration Court, which is within the jurisdiction of the United States Court of Appeals for the Sixth Circuit. … After the respondent’s individual hearing on October 20, 2023, the Immigration Judge applied Third Circuit law and denied deferral of removal under CAT. … The respondent argues that the Immigration Judge erroneously applied Third Circuit law rather than Sixth Circuit law. We review this issue de novo. See 8 C.F.R. § 1003.1(d)(3)(ii) (2020). For the reasons discussed below, we agree with the respondent that the Immigration Judge applied the incorrect circuit’s law. … On remand, the Immigration Judge should reevaluate the respondent’s claim under Sixth Circuit law and apply relevant Board precedent, with consideration to the respondent’s appellate arguments concerning the respondent’s gender identity and sexual orientation. See Matter of C-G-T-, 28 I&N Dec. 740, 745 (BIA 2023) (explaining that “when considering future harm, adjudicators should not expect a respondent to hide” the respondent’s sexual orientation).”
Great job, Jennifer! Once again, it’s worth asking ourselves how successful arguments of this kind could ever be made by an unrepresented respondent. If, as is painfully obvious to even a casual observer, the answer is “they couldn’t,” then where is the due process in an overloaded, corner-cutting court system where lack of representation is actually on the increase, despite truly heroic efforts by the private and pro bono bars?
I also find the last sentence of the above summary very helpful. While it certainly states the correct rule regarding sexual orientation cases, my sense is that this part of the Matter of C-G-T- precedent is often ignored at the Immigration Court level and not always corrected by the BIA on appeal. So, it’s certainly worth re-emphasizing!
The BIA’s opinion was written by Appellate Immigration Judge Gorman for a panel that also included Appellate Immigration Judge Greer and Temporary Appellate IJ Crossett.
Immigration law and policy are very complex, and truly boring for everyone except those who have to deal with them. But we live in an instant gratification, fast food culture. Immigration is a Hot Topic, folks want a Solution Now, so journalists naturally write about it…some better than others.
David Leonhardt, a senior writer at the New York Times, is a smart fellow who has won awards. But his “wheelhouse,” as the kids say, is mostly business and economics. I wish he (and/or his editors…where were they?) had consulted a panel of experts before hitting “send” on this piece.
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Now, I’m not an expert, but I did practice immigration law for almost 40 years, and today my social media feeds and email listservs are burning up with negative reactions to Leonhardt’s piece from true immigration experts.
Responding to every one of the problems in the piece would make this post too long, and would put you to sleep rather quickly, so I’ll touch on just a few highlights that really chapped my professional hide.
First, Leonhardt said, “Biden … changed the definition of asylum to include fear of gang violence.” That is simply false. The definition of who qualifies for asylum is based on the “refugee” definition, is fixed by statute, and only Congress can change that. Congress did NOT make any such change, and neither Biden nor any president could. Fear of gang violence as a basis for an asylum claim is a continuing subject of litigation at the Board of Immigration Appeals and in the federal courts, but the statute remains unchanged.
Second, Leonhardt states that Biden could have issued executive orders to mitigate the situation at the border. Oh, but “Yes, federal judges might block some of these policies… .” Maybe because they are illegal orders? No matter, “sending a message” is more important than legality.
Third, on the matter of admission into the U.S. via “parole,” Leonhardt implies that Biden expanded the use of parole beyond its “case-by-case” legal limits. Maybe Leonhardt did not know that “parole was … used to resettle over 360,000 Indochinese refugees between 1975 and mid-1980” and that “[b]etween 1962 and the end of May 1979, over 690,000 Cuban nationals were paroled into the country, “the largest number of refugees from a single nationality ever accepted into the United States.” ” – Amicus brief submitted to the Supreme Court in Clark v. Martinez.
Finally, the overall thrust of Leonhardt’s piece seems to be that the border is a “problem” that can and should be “solved” by some combination of legal and physical deterrents. This is a misperception common to educated elites as well as regular folks, and it is based on an ignorance of the full panoply of historical, economic, geographic and political forces that combine to make true border “control” a fantasy. Go to the border, look at the miles of desert, mountain and river and you will conclude that border walls are nothing more than a contractor’s financial wet dream. Talk to a woman from Central America who has risked everything to come here and you will conclude that no laws, no walls, no “message” would have deterred her.
I usually ignore much of what the MSM publishes about immigration, but the Times and Leonhardt carry a certain weight, so here I am, typing away. You’re welcome.
[The Comments are open, so fire away!]
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Professor Karen Musalo Director, Center for Gender & Refugee Studies, Hastings Law
Here’s the letter that Professor Karen Musalo, Director of the Center for Gender & Refugee Studies at Hastings Law wrote to the NYT:
Before David Leonhardt writes another piece on immigration, he should make sure he has his facts straight. He erroneously claims Biden “changed the definition of asylum to include fear of gang violence.” Biden did no such thing. What his Justice Department did was overturn a Trump-era ruling attempting to foreclose asylum claims by victims of domestic and gang violence, regardless of their legal merits. That decision was widely criticized, including on your pages in an op-ed I co-authored with Jane Fonda. Attorney General Garland rightfully vacated it, leaving the issue to be resolved by regulations [which to date have not been issued].
Leonhardt is incorrect in his assertion that more “aggressive” moves will mitigate challenges at the border, or score points with voters who overwhelmingly opposecruel and exclusionary policies. The Senate bill touted as a step in the right direction would have codified failed policies that only create more chaos.
Executive actions reportedly under consideration would similarly exacerbate operational challenges and inevitably get tied up in litigation.
And yes, Republicans’ sabotage of the bill was “transparently cynical.” Just as cynical, however, was the president’s choice to back anti-immigrant legislation he knew was doomed. In their attempts to out-Trump Trump, the president and his allies have betrayed their values and the voters who put them in office.
Karen Musalo
San Francisco, CA
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Thanks, Dan and Karen! Turning Leonhardt loose on a subject he’s obviously unqualified to write about — “stunning ignorance” in the words of one world-renowned expert — is nothing short of journalistic malpractice on the part of the NYT!
Immigration is a serious topic with life or death implications for migrants and the future of our nation. It deserves serious, informed, professional journalism by experts who are familiar with the plight of forced migrants and the actual legal requirements for asylum and due process as well as the realities of the border and the anti-immigrant absurdities of our dysfunctional Immigration Courts and non-legally-compliant asylum adjudication system.
There are lots of well-qualified folks around who could inform the public. Needless to say Leonhardt is not one of them. Unhappily, few “mainstream media” journalists have the necessary creds. That’s one reason the toxic national debate is so dominated by right wing White Nationalist media spreading lies and myths with little critical pushback from the “MSM.”
Rachel Siegel Economics Reporter Washington Post PHOTO: WashPost
Ironically, the same day’s Washington Post had an article by Rachel Siegel about how robust immigration of all types has saved the U.S. economy and how many economists believe Trump’s mindless, restrictionist, and likely illegal nativist policies could slow growth, devastate the U.S. workforce, and exacerbate inflation! https://www.washingtonpost.com/business/2024/05/20/trump-immigration-undocumented-economy/. At the same time, he would create chaos and waste billions in public funds.
Recently, I publisheda number of articles by experts debunking many of the very anti-immigrant myths that Leonhardt disingenuously repeats or enables:
In one of many bad moments, Leonhardt uncritically “parrots” the oft-debunked fiction that changes in U.S. immigration policies and “deterrents” like walls, detention, and racially-driven cruelty are primary long-term “drivers” of forced human migration. Undoubtedly, in the complex interrelated world of migration, such policies do have some fairly marginal, largely short-term effects, causing changes in migration paths, adjustments in smuggling methods, changes in smuggling fees, more deaths and unreported irregular entries (when enforcement “gimmicks” are irresponsibly expanded), and enough “statistical variance” to allow proponents of these futile policies to falsely claim “victory” before the system reverts to a new “equilibrium.”
But the truth is inescapable, even if inconvenient for Leonhardt and other dilettantes: Human migration is a complex worldwide phenomenon driven by forces beyond the ability of any single nation, even one as powerful and influential as the U.S., to control by harsh deterrence and restriction, no matter how cruel, deadly, and wasteful.See, e.g., https://immigrationcourtside.com/wp-admin/about.php (“Migrants will continue to flee bombs, look for better-paying jobs and accept extraordinary risks as the price of providing a better life for their children. . . .No wall, sheriff or headscarf law would have prevented [forced migrants] from leaving their homes.”).
As cogently stated by Robert McKee Irwin, an immigration scholar at U.C. Davis:
Leonhardt also suggests, quite incorrectly, that Biden’s (limited) attempts to increase pathways for legal immigration and return to the rule of law at the border somehow benefitted and encouraged smugglers and cartels. NOTHING could be more wrong-headed!
It is Trump and his restrictionist allies and enablers who have been a huge boon for human smugglers! As legal pathways are eliminated or unreasonably restricted, the entire “protection” system falls into the hands of smugglers and other trans-border criminal organizations who become “the only game in town” for those seeking protection! Smuggling prices go up and the risks to migrants increase, even as profit margins for the smugglers skyrocket! Equally bad, law enforcement is diverted from real criminals to playing a bogus “numbers game” at the expense of those who seek only to have their life-determining claims heard fairly, timely, and humanely in accordance with the rule of law!
If our country builds a fair, timely, and humane system for considering asylum claims, something that succeeding Administrations have shamefully eschewed, the majority of asylum applicants will use it, which at the same time would allow border law enforcement to focus on real security issues rather than contrived ones. Similarly, more realistic and robust paths for legal immigration, both temporary and long term, will reduce the pressure and incentives for irregular migration. These measures would also tap into the truth about migration being ignored by politicos of both parties:
These [restrictionist] political reactions fail to grapple with a hard truth: in the long run, new migration is nearly always a boon to host countries. In acting as entrepreneurs and innovators, and by providing inexpensive labor, immigrants overwhelmingly repay in long-term economic contributions what they use in short-term social services, studies show. But to maximize that future good, governments must act -rationally to establish humane policies and adequately fund an immigration system equipped to handle an influx of newcomers.
Notably, the Biden parole program criticized by Leonhardt not only has been upheld in Federal Court, but has generally been praised and recognized by experts as a great, largely under appreciated, success in both creating an orderly process and reducing border pressures while benefitting American families and fueling our economy. See, e.g., https://www.fwd.us/news/chnv-parole/. (I’ll admit to not initially being a “fan,” but hey, results matter so I’ve come around). The most legitimate criticism is that it has been too limited both in terms of numbers and nationality restrictions!
Bad journalism promoting myths like those spouted by Leonhard misleads the public and enables politicos to get away with policies that are not only illegal, but often harm and even kill the very vulnerable migrants we are supposed to be protecting, or at the very least treating with fairness, respect, and human dignity. America and the migrants who still (against the odds) see us as a beacon of hope in a cruel world deserve better from the NYT!
Judge Lister also has a plan to donate patented “healthy, sustainable textile technology” developed during the pandemic that could be used to create good jobs in Mexico and other countries beyond our borders.
Professor Michele Pistone at Villanova Law has developed a “scalable” online training course (“VIISTA Villanova”) that is currently being used to graduate more highly-qualified non-lawyer “Accredited Representatives” to close the burgeoning and critical representation gap in Immigration Court, thus “delivering due process with efficiency.” She believes that with more funding, this program could be “ramped up” to produce 10,000 new Accredited Representatives annually! See, e.g., https://www1.villanova.edu/university/professional-studies/academics/professional-education/viista.html.
With so many brilliant, informed, and involved experts out here, with creative positive ideas for improving immigrant justice and restoring the rule of law, it is very disappointing that the NYT and Leonhardt have chosen to uncritically recycle and repeat cruel, failed, legally problematic proposals by irresponsible politicos that would make things worse. Rather, the media should be consulting the experts actually involved in immigration at the “grass roots level” and pressing politicos on both sides of the aisle and the Administration as to why they aren’t concentrating and investing in humane potential solutions rather than deadly and discredited “deterrence through cruelty!”
As Erica Bryant of the Vera Institute of Justice, someone who, unlike Leonhardt, is actually qualified to write about migration, stated in an article I recently republished:
This November, and beyond, voters need to reject lies that demonize immigrants and demand policies that treat each person with dignity and fairness, no matter where they were born.
Obviously, neither Leonhardt nor the NYT editors got the message. They should!
Thanks again, Dan and Karen, for being the first to speak out and challenge Leonhardt’s dangerous, misleading, and highly irresponsible nativist nonsense!
As critical elections approach, voters are being bombarded with harmful myths, misrepresentations, and outright lies about people who are immigrants. More than 45 million people living in the United States were born elsewhere. Despite their proven contributions to communities nationwide, people seeking office call them “invaders” and make campaign promises for the “largest domestic deportation operation in history.” Inflammatory talking points about “border security” and the “migrant crisis” come from candidates across the political spectrum.
What is missing from this rhetoric is simple: the truth. The United States has failed to align its immigration laws and practices with 21st-century realities, leaving a system that is cruel, dysfunctional, and widely criticized. Bringing the country’s approach to immigration in line with the needs of the moment and building an immigration system that is both functional and humane will require serious effort. False information distracts from the solutions that we know work.
Here’s the truth.
It is perfectly legal to request asylum. People who come to the United States border to ask for help are not breaking the law.
Asylum is a form of protection that allows people to remain in the United States and avoid deportation back to a country where they fear persecution or harm because of their identity, religion, or political beliefs. Under both U.S. and international law, people who face danger in their homelands have the right to go to other nations to seek safety and to have their requests for asylum considered.
Asking for asylum is not a “free ticket” into the United States.
Applying for asylum is a long and complex process. Asylum cases completed in fiscal year 2019 or later took an average of 5.2 years to resolve, according to unpublished analysis of government data conducted by Vera. Currently-pending removal cases have been on the docket for an average of 1.9 years. Dangerous conditions around the world have forced record numbers of people to flee their homes and seek safety. This increase in need, exacerbated by a decades-long lack of investment in infrastructure and capacity to humanely process asylum claims, has created an enormous backlog in processing requests. Vera’s unpublished analysis of government data showed that, as of January 31, 2024, there were 3,353,199 cases pending removal proceedings in the United States.
Undocumented people have far lower crime rates than U.S. citizens.
Political candidates often falsely link undocumented people to crime in the United States. Yet an extensive study of crimes in all 50 states and Washington, DC, from 1990 to 2014, found that undocumented immigration does not increase violent crime. A study of arrests in Texas found that, relative to undocumented people, U.S.-born citizens are more than twice as likely to be arrested for violent crimes, 2.5 times more likely to be arrested for drug crimes, and more than four times more likely to be arrested for property crimes. Another study in Texas found that the criminal conviction rate for undocumented immigrants was 45 percent below that of native-born Texans. Immigrants of any legal status are typically found to be less involved in violence than native-born Americans.
Undocumented people pay taxes and help prop up social security by paying into the system—without receiving benefits.
Undocumented people pay an estimated $31 billion dollars in federal, state, and local taxes each year, including billions of dollars into a social security system from which they can draw very few, if any, benefits. The Social Security Administration (SSA) itself estimated that it collected $13 billion in payroll taxes in 2010 from workers without documentation, while only disbursing about $1 billion in payment attributable to unauthorized work. In a 2013 report, SSA estimated that “earnings by unauthorized immigrants result in a net positive effect on Social Security financial status generally. . . . We estimate that future years will experience a continuation of this positive impact on the trust funds.”
Virtually no fentanyl has been seized from people seeking asylum.
Fentanyl overdoses are increasing in the United States, and real solutions will require investments in treatment and preventative health care infrastructure. Instead, far too many politicians seek cheap political points by falsely blaming people seeking asylum at the southern border for this serious problem. In fact, virtually no fentanyl has been seized from people seeking asylum. In 2023, 93 percent of fentanyl seizures occurred at official border crossings or legal checkpoints. Nearly all of these seizures involved people permitted to cross the border, and more than 70 percent were U.S. citizens.
People with pending immigration cases show up to their court hearings.
Evidence clearly shows that, over the past two decades, most immigrants have shown up for the immigration court hearings that determine whether they have legal standing to remain in the United States. They do not slip into the country and disappear, as some political leaders claim. In fact, those who attend immigration court outside detention, on what are known as “non-detained” dockets, almost always continue to appear for their hearings when they are able to secure legal representation. There is no need to confine people in costly and inhumane immigration prisons.
Not all people at risk of deportation cross the border without documentation. Visa holders, long-term permanent residents, and even U.S. citizens are at risk.
While the spotlight often shines on people who cross the southern border without documentation, there are many ways that people can face the threat of deportation in the United States. Indeed, there are 22 million people in the United States who are at risk of being separated from their families and sent to countries where they may face danger. Tens of thousands of children who were adopted from outside the United States, for example, do not have documentation and are vulnerable to deportation because their complex citizenship paperwork was improperly filed. Additionally, more than one million people were brought to the United States as children by parents who entered the country without documentation or overstayed their visas. And, in 2022, more than 850,000 people from countries around the world overstayed their visas, making their continued presence in the United States unauthorized. Lawful permanent residents, current visa holders, and even U.S. citizens have been subjected to the risk of deportation and forced to defend their right to remain home with their families and in their communities.
Many people at risk of deportation actually have a legal right to remain in the United States—but are deported anyway.
Unlike in criminal court, people facing deportation in immigration court are not entitled to an attorney if they cannot afford one. Immigration attorneys can cost thousands of dollars, making them unaffordable for many. As a result, people seeking asylum, longtime legal residents, parents of U.S. citizens, and even small children are forced to appear in immigration court without an attorney to protect their rights. This makes it much more likely that they will be deported, even if they could have established a legal right to stay in the United States. The Fairness to Freedom Act, which was introduced in Congress last year and would establish a right to federally funded attorneys for all people facing deportation, would help fix this injustice.
Immigrants participate in the labor force and start businesses at higher rates than the native-born population.
One in six people in the United States workforce are immigrants. In fact, immigrants participate in the labor force at a higher rate than the U.S.-born population. Immigrants are also more likely to start businesses than native-born U.S. citizens. Furthermore, millions of people in the United States are employed by immigrant-founded and immigrant-owned companies.
People in the United States view immigration as a positive that benefits the country, and they support protections for people fleeing danger.
The majority of the public believes that immigration brings benefits to the United States, including economic growth and enriching culture and values. Nearly three-quarters of people polled said that people immigrate to the United States for jobs and to improve their lives, and more than half say that the ability to immigrate is a “human right.” Multiple polls show that the majority of people in the United States support protections for people who are trying to escape persecution and torture in their homelands. According to one Pew Research Center poll, 72 percent believe that accepting civilians trying to escape war and violence should be an important goal of U.S. immigration policy.
The United States has much work ahead to reform its dysfunctional and often cruel immigration system. This November, and beyond, voters need to reject lies that demonize immigrants and demand policies that treat each person with dignity and fairness, no matter where they were born.
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Erica’s “spot on” last sentence is certainly worth repeating:
This November, and beyond, voters need to reject lies that demonize immigrants and demand policies that treat each person with dignity and fairness, no matter where they were born.
While migrants might be the “easy target” of politicos and nativists, because they are vulnerable and “the usual scapegoats” for problems created or fostered by those very politicos and nativists themselves, in the end we ALL are the targets of those who want to inflict gratuitous cruelty while destroying our precious democracy.
As Dr. Martin Luther King, Jr., said “Injustice anywhere is a threat to justice everywhere.” Each of us has a vested interest in “not looking the other way” while our fellow humans unfairly are stripped of their rights and humanity with “harmful myths, misrepresentations, and outright lies.” YOU could be “next on the list!”
Austin Kocher, Ph.D. Research Assistant Professor TRAC-Syracuse PHOTO: Syracuse U.
From Professor Austin Kocher @ Linkedin:
New Report! “Two-Thirds of Court Asylum Applicants Found Legally Entitled to Remain.”
Out of 1M+ asylum cases decided by immigration judges over the past decade, 685,956 (66%) were legally entitled to remain in the United States due to asylum or other relief.
Remember, this is in a system that has, over decades, been intentionally rigged, manipulated, and skewed AGAINST legal asylum seekers, particularly those of color from certain arbitrarily “disfavored” countries! (Think Haiti, The Northern Triangle, and many African Nations). While this anti-asylum bias has “peaked” in GOP Administrations, Dems have also been guilty including the Biden Administration’s flailing, legally problematic efforts to abuse the asylum adjudication system as a “deterrent” to those legally seeking asylum!
The U.S. Asylum system over the past two decades has prided itself in making the experience of asylum seekers as restrictive, difficult, complex, arcane, arbitrary, and “user unfriendly” as possible for many of the most vulnerable. Even so, courageous asylum seekers who can actually get a decision persevere and succeed against the odds! What if Administrations of both parties worked to make the system fair and timely, rather than trying to use it as a false “deterrent?” Woman Being “Tried By Ordeal” 17th Century Woodcut Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160
Austin’s post triggered this exchange between Beckie “Deportation Defender” Moriello and me on LinkedIn:
BECKIE: It’s really higher than that, once we factor in all the wrongfully denied cases for clients who can’t afford to appeal.
PWS: Thanks for speaking truth, Beckie! If true asylum experts were on the BIA, IJs were experts who applied or were held by the BIA to the Cardoza, Mogharrabi, Kasinga, 8 CFR 208.13 framework, the asylum adjudication system had dynamic leadership, and individuals were competently represented, many more cases would be granted much more efficiently and backlogs would eventually come under control and start to diminish. In fact, individuals should be considered eligible for asylum even where persecution on a protected ground is “significantly less than probable” — the 10% rule! Moreover, asylum seekers who testify credibly are supposed to be given “the benefit of the doubt.” These and the presumption of future persecution established by past persecution, thereby shifting the burden to DHS, are still too often ignored, misapplied, or manipulated against asylum seekers. There is nothing that will make a backlog at least a decade in the making disappear overnight. But, a legitimate, legally compliant, properly generous asylum adjudication system would benefit all involved. It’s sad that Biden, Harris, Garland, and Mayorkas are afraid to comply with the rule of law for asylum seekers and other migrants!
Rev. Craig Mousin Ministry & Higher Education Wellington United Church of Christ U. of Illinois College of Law Greater Chicago Area PHOTO: DePaul U. Website
Restrictions To An Already Compromised Asylum System
This week we talk about a proposed rule from the Biden Administration that may change asylum proceedures and allow adjudicators to turn away people without proper research on their background.
Read the proposed rule: https://www.federalregister.gov/documents/2024/05/13/2024-10390/application-of-certain-mandatory-bars-in-fear-screenings
Read the NIJC’s breakdown: https://immigrantjustice.org/press-releases/nijc-denounces-new-biden-rule-adding-restrictions-already-compromised-asylum-system
Next week we should have a call to action with templates for you to help submit your comment. Watch this space!
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Thanks, Craig, for speaking up! Why does the Administration keep proposing likely unlawful restrictionist regulations that won’t help the situation at the border?
As Craig notes, there are “many positive ways” to improve the treatment of legal asylum seekers and promote fair and efficient consideration of their claims! Why is the Biden Administration “tuning out” the voices of those with border expertise who are trying to help them make the legal asylum system work?
Proposed Asylum Bar Regs Are At Odds With International Law (And Why That Matters)
In 2003, the Office of the U.N. High Commissioner for Refugees published Guidelines for applying the bars to asylum known internationally as the “exclusion clauses” (because they exclude an applicant from being recognized as a refugee under international law). Addressing the proper procedure for applying these bars, the UNHCR Guidelines state:
Given the grave consequences of exclusion, it is essential that rigorous procedural safeguards are built into the exclusion determination procedure. Exclusion decisions should in principle be dealt with in the context of the regular refugee status determination procedure and not in either admissibility or accelerated procedures, so that a full factual and legal assessment of the case can be made.1
This week, the Biden Administration published a proposed rule seeking to do precisely the opposite of what UNHCR advises.2 The rule would empower USCIS asylum officers to apply certain bars to asylum eligibility up front, at the border, as part of a preliminary admissibility determination. The goal is to effect the immediate deportation of certain asylum seekers, foreclosing their ability to have their eligibility for asylum decided by an Immigration Judge pursuant to a full-fledged hearing.
Advocates have already pointed out the dangers of the proposed approach, which will require quick decisions on highly complex issues at a point at which applicants very rarely have access to lawyers or evidence; their responses should be read.3 However, I would like to focus here on the rule’s conflict with international law, and why this is problematic.
Since 1804, the Supreme Court’s decision in Murray v. The Schooner Charming Betsy 4 has required domestic statutes to be interpreted consistently with international law whenever possible.5
This general requirement carries a particular urgency in its application to refugee law. The purpose of the 1951 Refugee Convention (which applied to those made refugees by World War II), and the 1967 Protocol (which extended the 1951 Convention’s definitions and protections to all) was to create a single, universal refugee standard to replace the patchwork of protections that reflected individual states’ own political preferences and biases.
This is not a small matter. International refugee law scholars James C. Hathaway and Michelle Foster have warned that “[i]nconsistency and divergence in interpretation of the Convention definition would clearly undermine the principled goal of ensuring a single, universal standard for access to refugee protection.”6 They further quote a decision of the Australian Administrative Appeals Tribunal in support of this contention: “[i]nconsistency is not merely inelegant; it brings the process of deciding into disrepute, suggesting an arbitrariness which is incompatible with commonly accepted notions of justice.”7
Congress apparently agreed with this approach when enacting the 1980 Refugee Act. In its landmark 1987 decision in INS v. Cardoza-Fonseca, the Supreme Court pointed this out:
If one thing is clear from the legislative history of the new definition of “refugee,” and indeed the entire 1980 Act, it is that one of Congress’ primary purposes was to bring United States refugee law into conformance with the 1967 United Nations Protocol Relating to the Status of Refugees, 19 U.S.T. 6223, T.I.A.S. No. 6577, to which the United States acceded in 1968.8
And in adhering to Congress’s clear intent, the Supreme Court in Cardoza-Fonseca looked for guidance in interpreting the 1980 Refugee Act to UNHCR, citing its Handbook first issued in 1979 as an important tool for interpreting the Convention’s provisions. In a footnote, the Court found that while it was not binding, “the Handbook provides significant guidance in construing the Protocol, to which Congress sought to conform. It has been widely considered useful in giving content to the obligations that the Protocol establishes.”9
As leading scholar Deborah E. Anker has noted, “One of the most important developments in U.S. asylum law is the weight that U.S. authorities – including the USCIS Asylum Office, the Board, and the federal courts – give to the UNHCR’s interpretation of the refugee definition contained in its 1979 Handbook….” Anker noted that UNHCR has issued other interpretive documents since 1979 that “complement and expand on the Handbook.”10 I would argue that those other documents (which include the 2003 guidelines addressing the exclusion clauses that is quoted above) are deserving of the same interpretive weight.
So given (1) the Supreme Court’s Charming Betsy doctrine mandating conformity with international law whenever possible; (2) the stated intent of Congress to bring U.S. asylum law into conformity with international refugee law (as recognized in Cardoza-Fonseca); and (3) the purpose of the 1951 Convention to “ensure a single, universal standard” for refugee status, according great weight to UNHCR guidance in interpreting the Convention provides the best means of adhering to all of the above requirements.
However, another leading scholar, Karen Musalo, provided a recent reminder of how far U.S. law has strayed from international law standards for determining nexus (i.e. when persecution is “on account of” a statutorily protected ground), and in determining the validity of particular social groups. Musalo posits that realignment with international standards would resolve the erroneous interpretations that have arisen under present case law, and would remove unwarranted barriers to protection that presently exist.11 But with its new proposed regulations, the government instead seeks to veer even further off course in its procedures for determining bars to asylum eligibility.
In December 2020, I presented in a blog post a “wish list” for the incoming Biden Administration. One of the items on my list was to create a “Charming Betsy” regulation requiring adherence to international law refugee standards. It included the hope “that the Biden Administration would codify the Charming Betsy doctrine in regulations, which should further require the BIA, Immigration Judges, and Asylum Officers to consider UNHCR interpretations of the various asylum provisions, and require adjudicators to provide compelling reasons for rejecting its guidance.”12
I am not so naive to expect that a regulation like this will be proposed anytime soon. But I do believe that the direct contradiction of the proposed regs with international law guidance should be included in comments and talking points by those both inside and outside of government. Through these rules, the Biden Administration seeks to engage in the type of politically-motivated action that the Refugee Convention and 1980 Refugee Act sought to eliminate. For the above reasons, such action would violate the intent of Congress, our treaty obligations, and over two centuries of U.S. case law.
Moving forward, whether an asylum-related law, rule, policy, or case holding conforms with international law should instinctively be the first question asked by all of us. When refugee protection is viewed in such neutral, legal terms, the urge to politicize decisions will be lessened.
As those scholars referenced above have been saying far longer and more articulately than myself, it is only when international law becomes normalized in the process that our asylum law will function as it should.
Copyright 2024 Jeffrey S. Chase. All rights reserved.
See Weinberger v. Rossi, 456 U.S. 25, 32 (1982) (noting that construing federal statutes to avoid violating international law has “been a maxim of statutory construction since the decision” in Charming Betsy).
James C. Hathaway and Michelle Foster, The Law of Refugee Status (Second Ed.), (Cambridge, 2014) at 4.
Hathaway and Foster, supra at n.18 (quoting Brennan, J., in Re Drake and Minister of Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 (Aus. AAT, Nov. 21, 1979) at 639.
480 U.S. 421, 436-37 (1987).
Id. at 439.
Deborah E. Anker, Law of Asylum in the United States (2023 Ed.) (Thomson Reuters) at 20-21.
Karen Musalo, “Aligning United States With International Norms Would Remove Major Barriers to Protection in Gender Claims,” International Journal of Refugee Law (2024).
The schooner Charming Betsy sailed into Supreme Court history. Hon. Jeffrey Chase and other legal experts aren’t “charmed” by AG Merrick Garland’s approach to binding international standards for asylum! PHOTO: The Constitutional Law Reporter
Thanks, “Sir Jeffrey” for a great and timely analysis!
For the second successive Administration, we have an Attorney General who does not take seriously his oath of office to uphold the Constitution and laws of the United States when it comes to those seeking asylum.
Garland has too often signed off on regulations and policies that are clearly at odds with domestic and international law as well as our Constitution. The current abominable proposed regulations, referenced by Jeffrey and opposed by all experts on asylum law and human rights, are just the latest example. Those politicos behind these toxic policies won’t confront in person or acknowledge the well-documented unnecessary human trauma and degradation caused by scofflaw actions and policies that intentionally fail to make fair, humane, safe, and timely asylum processing available to all who come to legal ports of entry as required by law (not to mention human decency)!
America’s misunderstood border crisis, in 8 charts
For all the attention on the border, the root causes of migration and the most promising solutions to the US’s broken immigration system are often overlooked.
There is a crisis on America’s border with Mexico.
The number of people arriving there has skyrocketed in the years since the pandemic, when crossings fell drastically. The scenes coming from the border, and from many US cities that have been touched by the migrant crisis, have helped elevate the issue in voters’ minds.
But for all the attention the topic gets, it is also widely misunderstood. The last few decades have seen a series of surges at the border and political wrangling over how to respond. The root causes of migration and why the US has long been ill-equipped to deal with it have been overlooked. Understanding all of that is key to fixing the problem.
Yes, border crossings are up. But the type of migrants coming, where they’re from, and why they’re making the often treacherous journey to the southern border has changed over the years. The US’s immigration system simply was not designed or resourced to deal with the types of people arriving today: people from a growing variety of countries, fleeing crises and seeking asylum, often with their families. And that’s a broader problem that neither Biden, nor any president, can fix on their own.
Here’s an explanation of the border crisis, broken down into eight charts.
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I highly recommend reading Nicole’s entire excellent article, with informative charts, at the link.
When both sides in the political debate eschew truth in favor of dehumanization, scapegoating, and pandering to nativist interests, it’s easy to see why real solutions to immigration issues are elusive. But, it needn’t be this way if politicos, the public, and the mainstream media looked for humane, practical, solutions that dealt with the realities of forced migration in the 21st Century, including the inherent limitations of “deterrence,” overt cruelty, disregard of known consequences, and unilateral actions.
Jenny Vi Beverly, Immigration Judge, Lowell Immigration Court
Jenny Vi Beverly was appointed as an immigration judge to begin hearing cases in May 2024. Judge Beverly earned a Bachelor of Arts in 2010 from the University of California, Los Angeles, and a Juris Doctor in 2013 from the University of Maine School of Law. From 2014 to 2024, she was in private practice as an attorney partner from 2014 to 2017 and as principal attorney from 2017 to 2024, representing noncitizens before EOIR and U.S. Citizenship and Immigration Services, Department of Homeland Security. During her time in private practice, she volunteered as pro bono counsel for the Immigrant Legal Advocacy Project in Maine. Judge Beverly is a member of the Maine State Bar.
Mark D. Donovan, Immigration Judge, Boston Immigration Court
Mark D. Donovan was appointed as an immigration judge to begin hearing cases in May 2024. Judge Donovan earned a Bachelor of Arts in 1992 from The Catholic University of America, a Master of Business Administration in 2001 from Northeastern University, and a Juris Doctor in 2008 from New England Law – Boston. From 2012 to 2024, he was an associate at Considine & Furey LLP in Boston, practicing civil litigation and criminal defense. From 2008 to 2012, he was an assistant district attorney in the Bristol County District Attorney’s Office in Bristol County, Massachusetts. Judge Donovan is a member of the Massachusetts Bar.
Nina J. Froes, Immigration Judge, Lowell Immigration Court
Nina J. Froes was appointed as an immigration judge to begin hearing cases in May 2024. Judge Froes earned a Bachelor of Arts in 2003 from the University of. Massachusetts Dartmouth and a Juris Doctor in 2008 from Roger Williams University School of Law. From 2013 to 2024, she was a solo immigration law practitioner at the Law Office of Nina J. Froes in New Mattapoisett, Massachusetts. From 2012 to 2013, she was a clinical fellow at the Immigration Law Clinic, School of Law, University of Massachusetts Dartmouth. From 2010 to 2011, she was the legal director of the Immigrant Victims Representation Project, Immigration Department, Catholic Social Services of Fall River, Catholic Charities USA, in Fall River, Massachusetts. From 2008 to 2011, she was a fellow in the immigration unit at the Legal Assistance Corporation of Central Massachusetts in Worcester, Massachusetts. Judge Froes is a member of the Massachusetts Bar and the Rhode Island Bar.
Roopal B. Patel, Immigration Judge, Boston Immigration Court
Roopal B. Patel was appointed as an immigration judge to begin hearing cases in May 2024. Judge Patel earned a Bachelor of Arts in 2003 from Harvard University and a Juris Doctor in 2011 from New York University School of Law. From 2014 to 2024, she was a senior staff attorney at Manhattan Legal Services where she worked on a wide variety of cases, including immigration cases. From 2011 to 2013, she was a staff attorney at the Brennan Center for Justice. Judge Patel is a member of the New York State Bar.
Sarah F. Torres, Immigration Judge, Concord Immigration Court
Sarah F. Torres was appointed as an immigration judge to begin hearing cases in May 2024. Judge Torres earned a Bachelor of Arts in 2004 from the University of California, Berkeley and a Juris Doctor in 2007 from the University of California, Davis School of Law. From 2019 to 2024, she was the managing attorney of the immigration legal services program at Opening Doors Inc., in Sacramento. From 2015 to 2019, she was a partner at Tomlinson & Torres PC. From 2008 to 2014, she practiced immigration law in private practice. Judge Torres is a member of the State Bar of California.
Joan B. Geller, Appellate Immigration Judge
Attorney General Merrick B. Garland appointed Joan B. Geller as an appellate immigration judge in May 2024. Judge Geller earned a Bachelor of Arts in 1990 from the University of Wisconsin and a Juris Doctorate in 1994 from the Georgetown University Law Center. From 2003 to 2024, Judge Geller served as an attorney advisor with the Board of Immigration Appeals (BIA), and in 2015, 2016, 2018, 2020, and 2021 she served as a temporary Appellate Immigration Judge with the BIA. From 2002 to 2003, she was deputy staff counsel at the District of Columbia Court of Appeals. From 1996 to 2002, she was a staff attorney at the District of Columbia Court of Appeals. From 1994 to 1996, she was a court law clerk at the District of Columbia Court of Appeals. Judge Geller is a member of the Maryland State Bar and the District of Columbia Bar.
Homero López Jr., Appellate Immigration Judge
Attorney General Merrick B. Garland appointed Homero López Jr. as an appellate immigration judge in May 2024. Judge López earned a Bachelor of Arts in 2007 from Southern Methodist University and a Juris Doctorate in 2010 from Tulane University Law School. From 2018 to 2024, Judge Lopez worked with the Immigration Services and Legal Advocacy (ISLA) in New Orleans, which he cofounded, serving as legal director from 2021 to 2024 and executive director from 2018 to 2020. From 2015 to 2018, he worked with Catholic Charities of the Archdiocese of New Orleans, serving as managing attorney of Immigration Legal Services from 2015 to 2018 and as supervising attorney for the Unaccompanied Children’s Program in 2015. From 2011 to 2014, he worked with Catholic Charities of the Diocese of Baton Rouge, serving as a staff attorney from 2011 to 2014 and as a supervising attorney in 2014. Judge López is a member of the Louisiana Bar.
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The appointments of Judges Lopez and Geller to the BIA were previously announced on “Courtside.”
Congratulations, best wishes, and good luck to these and all of the other new Judges! Remember, beyond all the bureaucratic nonsense that EOIR might throw at you, the name of the game, the ONLY game, is due process, fundamental fairness, and correct results! With lives at stake, our country and humanity are counting on you to help lift EOIR out of its “downward spiral” and to permanently change the “any reason to deny” culture!
Caitlin Parets, J.D. ’24 (left) and Alison Domonoske, J.D. ’24 (right) after their trial in Immigration Court (Spring 2024).
During the last week of Law School classes, Immigration Clinic Students Caitlin Parets, J.D. Class of 2024 and Alison Domonoske, J.D. Class of 2024 represented their client in a four-hour asylum trial. The students traveled with Clinic Professors Nicole Medved and Stacy Kern-Scheerer to appear before the Department of Justice on behalf of the Clinic’s client, Ms. B*.
Ms. B fled to the United States from Central America after suffering death threats at the hands of the powerful maras. After moving to Hampton Roads to find safety with her family, Ms. B reached out to the Immigration Clinic for assistance with her case before the Immigration Court.
In the Fall 2023 semester, Alison Domonoske, J.D. Class of 2024, was assigned to work with Ms. B on her asylum case. Alison first got to work preparing to take pleadings in the Immigration Court at Ms. B’s first hearing, called a Master Calendar Hearing. At that hearing, after pleadings were taken, the Immigration Judge scheduled Ms. B for her trial, known as an Individual Hearing, on April 25, 2024. Now, with the trial scheduled, the Clinic jumped into action. At the beginning of the Spring 2024 semester, Caitlin Parets, J.D. Class of 2024, joined the case to prepare for the trial.
“[U]nless one has extensively researched and witnessed firsthand the ways in which gang culture manifests in Central America, it is not possible to possess a comprehensive understanding of their influence, the level of control that they exert, or the level of terror, trauma, desperation, and helplessness that they engender in the population in areas under their control.”
These general misunderstandings of life in Central America presented unique challenges to Alison and Caitlin in preparing Ms. B’s case. Not only did they have to show how the facts of Ms. B’s case meet the high standards for asylum, but they also had to overcome misunderstandings of Central American gang violence in order to make their case.
Alison and Caitlin faced these challenges head-on. They conducted extensive country conditions research and legal research to write a brief in support of Ms. B’s case for asylum. They also met regularly with Ms. B to better understand her experience and focus their research. Alison and Caitlin also met weekly with their supervising attorney, Professor Nicole Medved, to discuss each step of their progress.
“Alison and Caitlin worked so hard to prepare a thorough, detailed, and nuanced record for the case,” said Professor Medved. “Preparing a record for trial, always with an eye toward preserving the record for appeal, is difficult for practicing attorneys. It is even moreso difficult for law students as they work on their cases, classwork, and other responsibilities as law students. In spite of all of this, Alison’s and Caitlin’s work product on this case was exemplary.”
“I could not have appreciated at the beginning of the semester how much our understanding and our arguments would evolve and grow in stature and creativity until we were left with the robust and finely crafted case we presented to the judge,” shared Caitlin.
After submitting their brief and supporting evidence, Alison and Caitlin prepared the case for trial. Alison carefully drafted direct examination questions for Ms. B, while Caitlin wrote the closing argument to address the complex legal issues and the extensive evidence in the record. Throughout April, Alison and Caitlin continued to meet regularly with Professor Medved to review their progress.
Alison (left) and Caitlin (right) during the mock hearing (Spring 2024).
As part of their preparation, Caitlin and Alison also had a mock hearing in mid-April. Ashley Warmeling graciously volunteered her time to serve as the judge for their mock hearing, Professor Kern-Scheerer was opposing counsel, and classmate Christina Kim, J.D. Class of 2024 served as the client. After the hearing, Ms. Warmeling provided feedback on the case and what they could expect from a judge in court and offered her advice on their preparation. This mock hearing was a critical step in the students’ preparation for the April 25 trial.
“I was impressed by the students’ preparation and commitment to their client,” said Ms. Warmeling. “This mock hearing–especially when played out in a courtroom setting–gave them a safe space to respond to unexpected curveballs that could come up at their actual trial. Without the Clinic’s intervention, this client would have likely had to navigate the immigration system alone. She would not have been able to assert the creative arguments set forth by these law students. No matter the outcome, this client is so fortunate to have had the advocacy of such a devoted legal team.”
During the trial, Alison and Caitlin represented Ms. B under Professor Medved’s supervision in a four-hour hearing. Alison conducted direct examination of Ms. B through an interpreter and asked redirect questions after cross-examination. Through her questions, she laid the factual foundation needed for closing argument. At the end of the hearing, Caitlin gave her closing argument, showing how Ms. B’s testimony, the record evidence, and Fourth Circuit case law supported a grant of asylum. At the end of the hearing, the Immigration Judge decided to issue a written decision in the case, which will be sent to the Clinic at a later time.
“I’m very grateful for the learning experience of clinic and being able to see Ms. B’s case from the beginning in the Clinic through her individual hearing,” said Alison. “That feels unique since it was such a quick turn-around with the individual hearing date. I’m also happy that I feel like I built good rapport with Ms. B through our interviews and that she trusted me as an advocate. It was challenging but I’m really proud of what we were able to do.”
“As I sat in the courtroom and watched the proceedings unfold, I kept thinking about all the people who do not have an attorney in immigration court,” said Caitlin. “Ours was a case that the judge probably would not have bat an eye at denying after first glance, but because we were able to fully listen to our client’s story, peel back its layers, dig into the facts, and articulate the nuances of her case, our client’s story sang instead of whispered.”
“I could not be prouder of Alison and Caitlin and all of their hard work this semester,” said Professor Medved. “Alison and Caitlin put in so many hours to prepare so thoroughly to be such extraordinary advocates for our client. Trials are always a roller coaster, requiring advocates to be nimble and responsive to the Judge’s concerns and opposing counsel’s arguments. Alison and Caitlin never broke their stride and advocated thoughtfully and zealously for our client. I am so proud of everything they accomplished. Regardless of the judge’s decision, Alison and Caitlin gave Ms. B the best chance possible at winning asylum.”
Experiences like these are made possible by the Clinic’s generous supporters. You can make more student experiences like this possible by donating to the Immigration Clinic.
The Clinic cannot guarantee any particular results for any particular individual or particular case. While the Clinic celebrates our victories and hard work, we recognize that each case is unique. Every noncitizen should consult with a licensed attorney about their case if they are concerned about their situation or are interested in applying for any form of immigration relief. The Clinic cannot promise any particular outcome or any timeframe to any client or potential client.
*All client names and initials have been changed for confidentiality and security
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This is a great illustration of why more gimmicks, such as the ones recently proposed by the Biden Administration, intended to cut off access to both representation and a hearing process at which proof and informed legal arguments can overcome anti-asylum biases built into the system, will result in more denials of due process, wrong decisions, and improper returns of bona fide refugees.
The Biden Administration and Congress should be focusing on improving our asylum adjudication system so that it provides fundamentally fair, timely, and correct decisions. Instead, far too much attention and too many resources are devoted to a futile attempt to institutionalize cruelty and over-denial as “deterrents.”
Congrats and great appreciation to the students and faculty at the W&M Law Clinic for “getting the message on due process,” even if our political leaders ignore it! The “youth brigade” of the NDPA is our hope for America’s future! 🇺🇸
Most experts view the Biden Administration’s approach to asylum, human rights, and racial justice in America as disturbingly short-sighted! Forcing “natural allies” to sue you is a huge boon to Trump and the nativist right! Mr. Magoo PHOTO: Gord Webster Creative Commons License
From LinkedIn:
BREAKING NEWS: Al Otro Lado, the Civil Rights Education and Enforcement Center, and Texas Civil Rights Project, have filed a lawsuit compelling Customs and Border Protection (CBP) to release information on its policies and practices relating to CBP One and its adherence to laws preventing discrimination based on disability.
CBP One, the error-ridden smartphone application that asylum seekers are forced to use in order to request asylum in the U.S., is fraught with malfunctions and inaccessible features and is an insurmountable barrier for countless people, especially those with disabilities. Getting an appointment can take up to seven months, leaving vulnerable asylum seekers trapped along the border in some of the most dangerous cities in the world. CBP One also requires a high level of technological proficiency to install and use.
Al Otro Lado has worked with clients with schizophrenia, blindness, deafness, cerebral palsy, and intellectual and developmental disabilities because their disability prevented them from successfully using the app. For them, getting a CBP One appointment so that they may seek asylum in the U.S. is practically impossible.
Our lawsuit against CBP is a pivotal action to safeguard the rights of people with disabilities and to ensure government accountability and transparency. The right to save one’s life shouldn’t depend on a glitchy app or one’s physical or mental capabilities. Full stop.
Wow! What an incredible, totally avoidable, squandering of legal resources by the Administration and Garland’s DOJ! What if these resources were devoted to solving problems rather than forcing advocates to sue and then engaging in disingenuous, perhaps unethical, “defenses of the indefensible!” No wonder the Biden Administration is “running scared” on immigration!
This is what the Administration could and should be fixing, rather than thinking of more “gimmicks” to deter and deny legal asylum seekers. Applying for asylum at a port of entry is a “legal pathway!” And, the “CBP One Debacle” was both predictable and totally avoidable by the Biden Administration. Obviously, some politicos and bureaucrats view “technological incompetence” as a “deterrent” to legal immigration!
The Biden administration will propose new changes to the asylum system on Thursday, four people familiar with the matter told POLITICO.
The forthcoming changes will address the stage at which migrants can be found ineligible to apply for and receive asylum. Under the current system, eligibility is determined based on a number of factors during the interview stage — the administration is set to propose applying these standards during the initial screening stage.
. . . .
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Read the entire article at the link. This system suffers from a chronic lack of asylum expertise, haphazard “any reason to deny” procedures, and an astounding, and deadly, lack of due process, fundamental fairness, and professionalism at all levels! More “summary denial procedures” will greatly aggravate, rather than solve, these problems!
Democrats, Democrats! Your endemic unwillingness and inability to stand up to and aggressively counter GOP nativist lies and fear-mongering on immigration and human rights, despite a huge body of practical expertise to draw upon, could lead to the end of American democracy!
Professor Karen Musalo Director, Center for Gender & Refugee Studies, Hastings Law
Read Karen’s newly-released article “Aligning United States Law with International Norms Would Remove Major Barriers to Protection in Gender Claims” in the 2024 Edition of the International Journal of Refugee Law. Here’s the abstract:
A B ST R A CT
The protection of women and girls fleeing gender-based harms has been controversial in the United States (US), with advances followed by setbacks. The US interpretation of particular social group and its nexus analysis, both of which diverge from guidance by the United Nations High Commissioner for Refugees (UNHCR), is the most significant barrier to protection. It has become almost impossible for women and girls to rely upon the particular social group ground because of current requirements that social groups not only be defined by immutable or fundamental characteristics, but also be socially distinct and have particularity. Establishing nexus is also a significant obstacle, with the US requirement of proof of the persecutor’s intent. In the first month of his administration, President Biden issued an executive order on migration, which raised hopes that these obstacles to protection would be removed. The order committed to protecting survivors of domestic violence and to issuing regulations that would make the US interpretation of particular social group consistent with international standards. The target date for the regulations was November 2021, but they have yet to issue. This article examines how the evolution of the US interpretation of particular social group and nexus has diverged from UNHCR recommendations. It shows how protection has been denied in gender cases involving the most egregious of harms. The article concludes by providing recommendations for realignment with international standards, which set a benchmark for evaluating the promised Biden administration regulations on the issue.
Karen’s highly readable “spot on” article prompted this additional thoughtful comment from my friend and Round Table colleague Hon. “Sir Jefferey” Chase:
Hi Karen: Wonderful article! So clear, so logical, and just so correct! Thanks as always for this. (And I’m extremely honored to find myself in several of your footnotes – thank you!)
Create a “Charming Betsy” Reg Requiring Adherence to International Law:Since 1804, the Supreme Court’s decision in Murray v. The Schooner Charming Betsy has required domestic statutes to be interpreted consistently with international law whenever possible.As the Supreme Court in INS v. Cardoza-Fonseca observed that in enacting the 1980 Refugee Act, “one of Congress’ primary purposes was to bring United States refugee law into conformance with the 1967 United Nations Protocol Relating to the Status of Refugees,” it would seem that interpreters of our asylum laws should look to international law interpretations of that treaty for guidance.Recent examples in which this has not been the case include the just-published “death to asylum” regulations that will completely gut the 1980 Refugee Act of any meaning; as well as regulations that bar asylum for conduct falling far, far short of the severity required to bar refugee protection under international law (which a federal district court blocked in Pangea v. Barr).
As the Board seems disinclined to listen to the Supreme Court on this point, it is hoped that the Biden Administration would codify the Charming Betsy doctrine in regulations, which should further require the BIA, Immigration Judges, and Asylum Officers to consider UNHCR interpretations of the various asylum provisions, and require adjudicators to provide compelling reasons for rejecting its guidance.
Do you think there is a way to use Karen’s article to make this into a talking point across the advocacy community? I think there’s merit to trying to normalize an idea over time. Just a thought.
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
I agree, Jeffrey! Ironically, as Karen shows, “normalizing” refugee and asylum processing to bring it into alignment with the Convention was one of the driving forces behind enactment of the Refugee Act of 1980. Indeed, it’s reflected in a key early interpretation of the Act by the Supremes in INS v. Cardoza-Fonseca (successfully argued by our friend and Round Table colleague Hon. Dana Marks, a “Founding Mother of U.S. Refugee Law”). In rejecting the USG’s restrictive interpretation, the Court consulted the U.N. Handbook while making the point that the refugee definition was to be applied generously so that even those with only a 10% chance of persecution could qualify.
I also note that the abandonment of the “Acosta test,” which I relied on in Kasinga, in favor of a more convoluted, restrictive, and ultimately intellectually dishonest approach, went “into high gear” after the “Ashcroft purge” had removed the core of BIA Judges who spoke up for asylum rights and protection, even when in dissent!
Unfortunately, Administrations of both parties have feared honest and robust implementation of the Refugee Act that truly follows the “spirit of Cardoza and its BIA progeny, Matter of Mogharrabi.” They all have had their “favored” and “feared” groups of refugees and asylees, some more than others.
This, of course, breeds huge inconsistencies and arbitrary adjudications, a problem exposed well over a decade ago by Professors Schoenholtz, Schrag, and Ramji-Nogales in their critical seminal work Refugee Roulette describing the largely unprincipled and politicized operation of our system for adjudicating protection claims.
At some level, all Administrations have given in to the false idea that protection of refugees is politically perilous and that consequently the law should be interpreted and manipulated to “deter” the current “politically disfavored” groups of refugees. Not surprisingly, the latter are usually those of color, non-Christian religions, or from poorer countries where the mis-characterization of groups of legitimate refugees as “mere economic migrants” has become routine. Too often, the so-called “mainstream media” accepts such negative characterizations without critical analysis.
Unfortunately, the Biden Administration has regressed from a somewhat enlightened beginning with the never-promulgated “gender based regulation” mentioned by Karen to a position of fear, desperation, and ultimately “false deterrence.” Apparently, they perceive that GOP nativist lies and shamless fear-mongering combined with their own failure to boldly reform and materially improve the asylum processing system under their control are “scoring points” with the electorate.
The latest misguided proposal being considered in the White House would grotesquely miss the mark of addressing the real glaring problems with our asylum system at the border and beyond. That is the overly restrictive interpretations and applications of the refugee definition, too many poorly-qualified and poorly-trained adjudicators, over-denial leading to protracted litigation and inconsistent results, uninspiring leadership, and a stubborn unwillingness to set up the system in compliance with international rules so that significant numbers of qualified refugees applying at the border can be timely and properly admitted to the U.S. where, incidentally, their skills and determination can contribute greatly to our economy and our society.
The latest bad idea is truncating the already overly-summary and poorly run asylum process in apparent hopes of more quickly denying more potentially valid claims with less consideration. See, e.g.,https://www.politico.com/news/2024/05/08/biden-migrants-asylum-changes-00156865. Far from being a panacea for the much-feared and highly distorted “border issue,” it eventually will aggravate all of the problems highlighted by Karen.
One thing it won’t do, however, is stop forced migrants from coming to the United States, even if they must abandon our broken legal system to do so. That’s what forced migrants do! Pretending otherwise and misusing our legal protection system for rejection won’t “deter” the reality of forced migration.
“One day after he pleaded guilty to violating a Tennessee domestic-violence law, the federal government initiated removal proceedings against Jose Yanel Sanchez-Perez. Ultimately, an immigration judge and the Board of Immigration Appeals determined that Sanchez-Perez could not seek cancellation of removal due to this conviction. The Board of Immigration Appeals improperly determined that Sanchez-Perez pleaded guilty to a crime of violence, however. Accordingly, we GRANT Sanchez-Perez’s petition for review, VACATE the Board’s order of removal, and REMAND to the Board for proceedings consistent with our opinion. … Because the Tennessee statute at issue, Tenn. Code Ann. § 39-13-101(a)(2), criminalizes conduct beyond the federal definition of a crime of violence, the BIA erred in finding that Sanchez-Perez is statutorily barred from seeking cancellation of removal. … The government’s and BIA’s errors in this case involve basic misreading of both our and the Supreme Court’s precedents concerning the distinctions between different federal statutory schemes and the meaningful differences among state criminal statutes. At bottom, because on its face the Tennessee statute at issue here criminalizes conduct that does not require the use or threatened use of violent physical force, the BIA erred when it determined that Sanchez-Perez was statutorily barred from applying for cancellation of removal by virtue of his 2009 conviction for misdemeanor domestic assault under Tennessee Code Annotated § 39-13-111.”
This is what happens when an appellate body beholden to DHS Enforcement looks for “any reason to deny” while “what me worry” AG Merrick Garland looks the other way!
Caitlin Parets, J.D. ’24 (left) and Alison Domonoske, J.D. ’24 (right) after their trial in Immigration Court (Spring 2024).
Alison (left) and Caitlin (right) during the mock hearing (Spring 2024).
Come on, Joe, stop the “Miller Lite” nonsense and stand up for the legal rights of asylum seekers!
