"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.
“Little Shop of Horrors:” Another human life devoured by the “due process eating plant” hidden away in the bowels of the BIA! PHOTO: Little Shop of Horrors at Grafton High School 14.jpg, Creative Commons License
Faiza Sayed Assistant Professor of Law and Director of the Safe Harbor Project Brooklyn Law School PHOTO: Brooklyn Law Website
ABSTRACT—Each year, the Board of Immigration Appeals (BIA)—the Justice Department’s appellate immigration agency that reviews decisions of immigration judges and decides the fate of thousands of noncitizens—issues about thirty published, precedential decisions. At present, these are the only decisions out of approximately 30,000 each year, that are readily available to the public and provide detailed reasoning for their conclusions. This is because most of the BIA’s decision-making happens on what this Article terms the “immigration shadow docket”—the tens of thousands of other decisions the BIA issues each year that are unpublished and nonprecedential. These shadow docket decisions are generally authored by a single BIA member and consist overwhelmingly of brief orders and summary affirmances. This Article demonstrates the harms of shadow docket decision- making, including the creation of “secret law” that is accessible to the government but largely inaccessible to the public. Moreover, this shadow docket produces inconsistent outcomes where one noncitizen’s removal order is affirmed while another noncitizen’s removal order is reversed—even though the deciding legal issues were identical. A 2022 settlement provides the public greater access to some unpublished BIA decisions, but it ultimately falls far short of remedying the transparency and accessibility concerns raised by the immigration shadow docket.
The BIA’s use of nonprecedential, unpublished decisions to dispose of virtually all cases also presents serious concerns for the development of immigration law. Because the BIA is the final arbiter of most immigration cases, it has a responsibility to provide guidance as to the meaning of our complicated immigration laws and to ensure uniformity in the application of immigration law across the nation. By publishing only 0.001% of its decisions each year, the BIA has all but abandoned that duty. This dereliction likely contributes to well-documented disparities in the application of immigration law by immigration adjudicators and the inefficiency of the immigration system that leaves noncitizens in protracted states of limbo and prolonged detention. This Article advances principles for reforms to increase transparency and fairness at the BIA, improve the quality, accuracy and
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political accountability of its decisions, and ensure justice for the nearly two million noncitizens currently in our immigration court system.
AUTHOR—Assistant Professor of Law, Brooklyn Law School. I am thankful to Matthew Boaz, Richard Boswell, Jason Cade, Stacy Caplow, Pooja Dadhania, Elizabeth Isaacs, Kit Johnson, Anil Kalhan, Elizabeth Keyes, Catherine Kim, Shirley Lin, Medha Makhlouf, Hiroshi Motomura, Prianka Nair, Vijay Raghavan, Philip Schrag, Andrew Schoenholtz, Sarah Sherman- Stokes, Maria Termini, Irene Ten-Cate, and S. Lisa Washington for thoughtful conversations and comments on drafts. This Article benefitted from feedback at the New Voices in Immigration Law Panel at the 2022 AALS Annual Meeting, the 2021 Clinical Law Review Writers’ Workshop at NYU, and the junior faculty workshop at Brooklyn Law School. I am grateful to Benjamin Winograd and Bryan Johnson for helpful conversations about the Board, unpublished decisions, and FOIA, and to David A. Schnitzer and Visuvanathan Rudrakumaran for discussions about the Andrews and Uddin cases. Thank you to Emily Ingraham for outstanding research assistance and to the editors of the Northwestern University Law Review for excellent editorial assistance. Financial support for this Article was provided by the Brooklyn Law School Dean’s Summer Research Stipend Program.
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Professor Sayed has written an “instant classic” that should be a staple for future historians assessing the legal career and impact of Merrick Garland and how the Democratic Party has failed humanity time again on immigrant justice when the stakes were high and the solutions achievable!
Here’s my “favorite” part:
In 1999, Attorney General Janet Reno attempted to deal with the BIA’s rapidly increasing backlog of appeals by implementing “streamlining rules” that made several changes to the way the Board operated.41 Most importantly, certain single permanent Board members were now permitted to affirm an IJ’s decision on their own and without issuing an opinion.42 The Chairman of the BIA was authorized both to designate certain Board members with the authority to grant such affirmances and to designate certain categories of cases as appropriate for such affirmances.43 Finally, Attorney General Reno increased the size of the Board to twenty-three members.44 Evaluations of the reforms found that they “appear to have been successful in reducing much of the BIA’s backlog” and “there was no indication of ‘an adverse effect on non-citizens.’”45
Despite the documented success of Attorney General Reno’s reforms, in 2002, Attorney General John Ashcroft announced controversial plans to further streamline the BIA’s decision-making.46 These rules “fundamentally changed the nature of the BIA’s review function and radically changed the composition of the Board.”47 To support the reforms, Ashcroft cited not only the backlog but also “heightened national security concerns stemming from September 11.”48 The reforms included making single-member decisions the norm for the overwhelming majority of cases and three-member panel decisions rare, making summary affirmances common, and reducing the size of the Board from twenty-three members to eleven.49 A subsequent study found that Attorney General Ashcroft removed those Board members with the highest percentages of rulings in favor of noncitizens.50 As a result of the reforms, outcomes at the BIA became significantly less favorable to noncitizens,51 and the federal circuit courts received an unprecedented surge of immigration appeals.52
In the wake of harsh criticism of immigration adjudications by federal circuit courts, Attorney General Alberto Gonzales directed the DOJ to conduct a comprehensive review of the immigration courts and the Board in 2006. Based on this review, Attorney General Gonzalez announced additional reforms “to improve the performance and quality of work” of IJs and Board members.53 The most significant change was the introduction of performance evaluations, which include an assessment of whether the Board member adjudicates appeals within a certain time frame after assignment.54 Scholars have explained that “the performance evaluations give an incentive to affirm rather than reverse IJs by emphasizing productivity, and because immigrants file the overwhelming number of appeals with the BIA . . . the incentive to affirm means outcomes that favor the government.”55
The Trump Administration once again transformed Board membership. Board members whose appointments predated the Trump Administration were reassigned after refusing buyout offers,56 and the Administration expanded the Board to add new members.57 Most of the new Board members appointed under the Trump Administration had previously served as IJs,
where they had some of the highest asylum denial rates in the country.58
Garland has failed to replace the asylum denying judges who were “packed” onto the BIA during the Trump era with qualified real judges who are experts in asylum law, unswervingly committed to due process, and able to set proper precedents and enforce best judicial practices. That’s a key reason for the “prima facie arbitrary and capricious inconsistencies’ in EOIR asylum grant rates — 0% to 100% — a rather large range!
The latter read like a compendium of legally and factually questionable “how to deny asylum and get away with it” instructions. Absent is any hint of the properly fair and generous treatment of asylum seekers required by the Supremes in Cardoza-Fonseca and once echoed in BIA precedents like Mogharrabi, Kasinga, Chen, Toboso-Alfonso, A-R-C-G-, and O-Z- & I-Z- .
Some well-reasoned grants that could be widely applied to recurring situations are also buried on the “shadow docket.” At the same time, as cogently described by Professor Sayed, cases with almost identical facts that resulted in denial are also hidden there. This system is simply NOT functioning in a fair, reasonable, and legally sound manner. Not even close! Yet, Garland has not brought in competent expert judicial administrators and managers at EOIR who recognize the problems and would make solving them, rather than aggravating them, “priority one!” Why?
Contrast that with the enlightened movement among American Law Schools to promote immigration “practical scholars” and clinicians to administrative positions in recognition of their inspirational leadership and superior “real life” problem-solving skills! It’s as if Garland and the rest of Biden’s inept immigration bureaucracy operate in a “parallel universe” where immigration, human rights, and racial justice don’t exist!
Not surprisingly, some of the BIA’s best and most useful guidance on asylum came before the “Ashcroft purge.” But, they still remain “good law” that Immigration Judges can use, despite the “any reason to deny” culture reflected by today’s “Trump holdover” BIA. Curiously, this negative asylum “culture” is tolerated and enabled by Garland, even though it directly contradicts promises made by Biden and other Dem politicos during the 2020 campaign! Why?
The Obama Administration also did not act to undo the damaging changes made during the Bush Administration. Thus, the ambivalent attitude of Dem Administrations toward justice for immigrants and building a fair, functional BIA has much to do with the current dysfunctional, unfair, and horribly administered mess at EOIR!
I was one of those BIA judges removed during the “Ashcroft purge,” essentially for “doing my job,” ruling fairly, and upholding the rule of law.Notably, many of the views of the “purged” judges were eventually reflected in Court of Appeals, and even a Supreme Court, reversals of the BIA.
Once “exiled” to the Arlington Immigration Court, except where bound by contrary BIA precedent, I ruled the same way that I had in many of the cases coming before me at the BIA. Guess what? I was seldom reversed by my former colleagues! I used to quip that “I finally got the ‘deference’ that I never got as Chair or a BIA judge.”
ICE appealed relatively few asylum and/or withholding grants; surprisingly often, their “closing summary” actually echoed what likely would have been in my final oral opinion, had it been been necessary to issue one. A number of BIA reversals by the Fourth Circuit Court of Appeals during my Arlington tenure made points that I, and/or my ”purged colleagues,” had raised in vain during my time on the BIA. A few even involved poorly-reasoned attempts by the BIA to reverse some of my decisions granting relief!
And, oh yes, there were the gross inconsistencies in unpublished “panel” decisions. Once, an Arlington colleague and I came down with opposite conclusions on whether a particular Virginia crime, on which there was then no BIA precedent, involved “moral turpitude.” Within a week of each other, we both received an answer from different BIA panels. We BOTH were reversed! As we joked at lunch, the only consistent rationale from the BIA was that “the IJ was wrong!”
The current BIA is a continuing blot on American justice, The same information and resources available to Professor Sayed in writing this article were available to Garland. How come she “gets” it and he (and his lieutenants) don’t? Why didn’t Garland hire Professor Sayed and a team of other experts like her to straighten out and rejuvenate EOIR?
And, let’s not forget that the increased public access to the “shadow docket,” even if still inadequate, is NOT the result of EOIR wanting to provide more transparency or any enlightened reforms stemming from Garland. No, it required aggressive litigation by the New York Legal Assistance Group (“NYLAG”) against EOIR to force even these improvements!
Does the public REALLY have to sue to get basic services and information that a properly functioning USG agency should already be providing? Merrick Garland seems to think so! How is this the “good government,” promised but not delivered by Biden in the critical areas of immigration, human rights, and racial justice?
Vulnerable asylum seekers and others whose lives depend on a just, professional, expert EOIR deserve better! Much, much better! The inexplicable and disastrous failure and refusal of Garland and the Biden Administration to deliver on the promise of due process and equal justice at EOIR will likely haunt the Democratic Party and our nation well into the future. As my friend Jason “The Asylumist” Dzubow would say, “It didn’t have to be this way!”
Here’s another remand you might like to read. This time it was Nexus and PSG with IJ Monique Harris (previously in Houston). According to TRAC she has a 96.5 asylum denial rate. The prior remand I shared was IJ Khan who is at 97% denial rate. Clearly these IJs are getting a lot of “matter of life and death” decisions wrong. As you say, haste makes waste. This case (like the previous one) should have been easy grants with all of the supporting documents that were included. I appeared at the individual hearing and my colleague Bryan Russell Terhune (from the same office) worked on the BIA Brief.
P.S. you can see this news article: https://sv.usembassy.gov/court-inaugurated-memory-pnc-agent/ , from our own U.S. Embassy in El Salvador where they inaugurated an athletic court in the Usulutan Police Delegation, named after the PNC officer Nelson Panameño, who was killed. Panameño was one of the instructors from the Gang Resistance Education and Training Program (GREAT) which my client closely worked with for many years helping him and the PNC gain trust with the community and local youth. This was part of the record, plus a lot more evidence showing this specific connection and the specific and imminent warnings that Panameno gave to my client before his own murder. This was just one of the many great things this client did in El Salvador to try and make his country a better place. We are lucky to have him and his family in this country now.
This was just one of the many great things this client did in El Salvador to try and make his country a better place. We are lucky to have him and his family in this country now.
That this respondent is here to contribute to our country is due to Roberto and his colleagues in the Law Office of Juan Reyes, Houston, and to this particular panel of BIA Appellate Judges. But it is “no thanks” to the IJ who got this case egregiously wrong below!
Nor, is it thanks to an Attorney General who has allowed injustice, bad judgment, and poor quality decision-making to flourish at the “retail level” of his wholly-owned “court” system. What about the many folks who don’t have Roberto or someone like him for a lawyer or who get members of the “BIA asylum deniers club” appointed under Trump to “pack the BIA for an anti-asylum agenda” instead of this panel of conscientious appellate judges?
I note that Judge Elise Manuel and Judge Denise Brown are currently denominated “Temporary” Appellate Judges. At least in this case, along with Judge Ellen Liebowitz, they “got it” at a level at odds with the work of too many of their so-called “permanent” colleagues. Why has Garland allowed this obviously problematic situation to continue to fester with human lives at stake?
Judge Ellen Liebowitz’s compact, cogent, powerful opinion is a terrific “mini-primer” on how PSG and “one central reason” nexus cases properly should be decided! As Judge Liebowitz demonstrates, you don’t have to write a lot to say a lot. You just have to know what you’re doing!
The gross, fundamental errors in the application of basic statutory terms by the IJ below in this case are, unfortunately, repeated on a regular basis by many of her colleagues across America who are improperly “programmed to deny” clearly grantable asylum cases.
It belies the bogus claim that EOIR is an “expert subject matter tribunal!” That expertise is, at least in part, what the questionable doctrines of “Chevron deference” and “Brand X abdication” by the Supremes rest upon. Shouldn’t it make a difference that in EOIR’s case, it’s a lie?
Why is Garland allowing this to happen when it could be remedied? Make this case a precedent and start removing, retraining, or reassigning so-called “judges” who don’t follow it and who continue to disregard the law and the rights of asylum seekers!
Why isn’t this case a precedent? Why is an IJ who is so clearly unqualified to decide asylum cases still on the Immigration Bench under Garland? Why aren’t cases like this being used to end the “asylum free zone” improperly established by some Houston IJs?
These are the “tough questions” that Garland should have addressed. Why hasn’t he? Why is “refugee roulette” still plaguing EOIR and American justice — 15 years after the problem was first “outed” by my Georgetown Law colleagues Professors Schrag, Schoenholtz, and Ramji-Nogales? How is this “good government,” or even “minimally competent government?”
When compelling, well-documented cases like this are turned down at the trial level, something clearly is rotten in the system! Make no mistake about it, lack of expertise, bad judicial attitudes, widespread anti-asylum bias, counterproductive “haste makes waste gimmicks,” and way, way too many denials are significant “drivers” of the backlog that continues to mushroom under Garland.
The arbitrary and often grotesquely unfair, unprofessional, and results-driven state of “justice” in Garland’s dysfunctional Immigration Courts was recently highlighted by Brooklyn Law Associate Dean Stacey Caplow in her lament about the Supremes’ abdication of responsibility in Patel v Garland.
Stacy Caplow Associate Dean of Experiential Education & Professor of Law Brooklyn Law PHOTO: Brooklyn Law website
As Dean Caplow cogently points out:
Patel shuts the door firmly and unequivocally, preventing independent review of fact-finding by Immigration Judges, however irrational and indefensible once the Board of Immigration Appeals has affirmed. This makes the need to populate the Immigration Court bench with independent, highly qualified, experienced, non-political unbiased individuals with appropriate temperament even more urgent. Perhaps this case will provide new impetus for reform such as Real Courts, Rule of Law Act of 2022 voted by the House Judiciary Committee in May just days before the Supreme Court’s decision.
While an independent, subject matter expert Article I Immigration Court is the obvious answer, unfortunately, it’s not immediately on the horizon. Meanwhile, the innocent and vulnerable continue to suffer daily injustices, sometimes gratuitous humiliation or dehumanization, in Garland’s broken system. It DOESN’T have to be this way!
As Dean Caplow says, we “need to populate the Immigration Court bench with independent, highly qualified, experienced, non-political unbiased individuals with appropriate temperament.” It’s not “rocket science” 🚀— just intellectual excellence, courage, and a fair-minded approach to justice!
There are literally hundreds of extraordinarily well-qualified individuals out there in the private sector who could outperform the IJ in this case in every critical aspect of the job! Why hasn’t Garland actively recruited them for his courts? Why isn’t his system functioning correctly “on the retail level?”
Garland has the authority to take the bold action necessary to redirect, refocus, and re-populate his current parody of a court system to laser-focus on due process, fundamental fairness, judicial expertise in immigration and human rights, and efficiency (without sacrificing due process or decisional excellence).All of us who care about the future of American justice should be asking why he isn’t doing his job!
Immigration Court, where hundreds of judges daily preside over wrenching decisions, including matters of family separation, detention, and even life and death, is structurally and functionally unsound. Closures during the pandemic, coupled with unprecedented backlogs, low morale, and both procedural and substantive damage inflicted by the Trump Administration, have created a full-fledged crisis. The Court’s critics call for radical reforms. That is unlikely to happen. Instead, the Biden Administration is returning to a go-to, cure-all solution: adding 100 Immigration Court judges and support personnel[1] to help address the backlog that now approaches 1.3 million cases.[2]
No one could oppose effective reform or additional resources. Nor could anyone oppose practical case management changes that do not require legislation and that could expedite and professionalize the practice in Immigration Court. Linked with a more transparent and more inclusive process for selecting Immigration Judges, these changes would make the Immigration Courts more efficient, more accurate and fairer but not at the expense of the compelling humanitarian stakes in the daily work of the Court. Immediate changes that do not require legislation but do require the will to transform the practice and culture of the Court would be a major step forward in improving the experiences and the outcomes in Immigration Court.
. . . .
Is there a life preserver on this sinking ship? Courts reopening following the pandemic are facing an unprecedented backlog with cases already postponed years into the future. The new Administration, in the position to institute real reform to the way business is conducted, has started to steer in a positive direction due to a now shared interest of the Court and ICE to address the burdensome and shameful backlog. This is a potentially defining moment when change may actually happen. Meanwhile, the new administration is articulating goals to ameliorate not only the backlog but to seriously change enforcement priorities. If these two agents of potential change take advantage of the crisis that is affecting everyone involved with the system to work collaboratively with each other and consult sincerely with the immigrant advocates bar and other stakeholders, there may be some hope. To make this happen, a true cultural change must occur at every level. A few small steps have been taken: The EOIR is reacting to the prosecutorial discretion directive but the jury is still out on the buy-in to any kind of genuine reform.[48]
Like a lifeboat, survival depends on a commitment to problem-solving, trust and collaboration until rescue arrives. Someday structural reform may truly reshape the court to enough to eliminate the qualifier quasi. IJs will become full-fledged judges capable of making legally sound decisions in courtrooms where dignity, respect, patience and compassion are the norm without fear of retribution. Give the judges the tools they need to manage their courtrooms and the parties to achieve goals of integrity, efficiency and fairness. Recalibrate the balance between the parties. Recognize the demands of presiding over life-altering matters on their own wellbeing by giving them the resources, the power and the trust to be full-fledged judges.
Until then, directives from the top down are an important start; transformation still depends on change in the field in order to bring this court in conformity with general adjudication norms and practices, as well as to successfully implement the policy instructions that have the potential address the court crisis from the government’s standpoint without sacrificing fairness and humanitarian considerations.
Guest author Professor Stacy Caplow teaches Immigration Law at Brooklyn Law School where she also has co-directed the Safe Harbor Project since 1997.
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Read the complete article at the link.
I just hope that Stacy and Cyrus have sent copies of this article to Lucas, Lisa Monaco, Merrick Garland, Vanita Gupta, Kristen Clarke, and the Chairs of the House and Senate Immigration Subcommittees!
Anti-immigrant, anti-asylum, misogynist culture (actively promoted by Sessions and Barr), biased and clearly defective judicial selection procedures, and the resulting lack of practical scholarship and human rights expertise are festering problems at EOIR. They must be solved now!
The virtual exclusion of progressive practical scholars and advocates — essentially, the best and brightest — from the “21st Century Immigration Judiciary” has been both systematic and intentional. Disturbingly, the Obama Administration produced results only marginally different from Bush II and Trump!
That’s why many of us were so shocked and outraged when Judge Garland continued to “honor” fatally flawed, biased, and exclusionary hiring practices by his predecessors.
Culture also plays a role in creating a biased judiciary. Why would a talented progressive expert, particularly a women of color, want to serve in a “bogus” judiciary that basically furthers racist narratives and myths, demeans women and minimizes their persecution (probably the most significant persecuted group in the world right now), and where the AG publicly slanders courageous private advocates while treating his “personally owned judges” like enforcement stooges.
The BIA has been “inflated” back to its “Schmidt-era” 23 Appellate Judges, after Ashcroft’s transparent “purge” cut the number to an unworkable 12 to remove the liberal judges (who were in the minority anyway). Yet, for Pete’s sake, there hasn’t been an outside appointment to the BIA since the Clinton Administration — more than two decades ago! Totally inexcusable.
And, this lack of outside expertise is a primary reason why EOIR is in deep trouble that threatens the stability of our entire justice system and democracy itself. A number of the existing BIA Members were selected NOT because of their demonstrated reputations for fairness, scholarship, respect, and timeliness, but because of their notoriety for denying almost every asylum case that came before them.
Here’s an excerpt from a letter that SPLC court observers sent to then Director Juan Osuna in 2017 describing the in-court bias of two Immigration Judges sitting in Atlanta:
In one hearing, an attorney for a detained respondent argued that his client was neither a threat to society nor a flight risk. 19 In this hearing, IJ Cassidy rejected the respondent’s request for bond, stating broadly that “an open border is a danger to the community.” He then analogized an immigrant to “a person coming to your home in a Halloween mask, waving a knife dripping with blood” and asked the attorney if he would let that person in. The attorney disagreed with IJ Cassidy, who then responded that the “individuals before [him] were economic migrants and that they do not pay taxes.” The attorney again disagreed with both claims. IJ Cassidy concluded the hearing by stating that the credible fear standard is not a proper test for review of asylum seekers, wholly disregarding the established legal standard for such cases.20 In a private conversation after this case, IJ Cassidy told the observer that the cases that come before him involve individuals “trying to scam the system” and that none of them want to be citizens. He also remarked that he thought the U.S. should be more like Putin’s Russia, where “if you come to America, you must speak English.”21 In another hearing, IJ Wilson told a respondent that “this case is like every case . . . came in from Mexico for medical treatment then try to claim asylum.”22 [text of footnotes omitted].
Director Osuna resigned a short time later, apparently in response to his concerns about the legitimacy of policies that the Trump immigration kakistocracy at DOJ intended to pursue. (Tragically, he died a short time later.) I am unaware that James McHenry, Osuna’s successor, hand-picked by AG Jeff “Gonzo Apocalypto” Sessions to “deconstruct due process @ EOIR” ever undertook a thorough investigation or that any sanctions were imposed upon these judges. But, stunningly, both were later appointed to the BIA by former AG Barr and continue to serve today under Garland.
These are the types of life-threatening, humanity-degrading, anti-due-process actions that became routine at EOIR over the past four years, and caused my friend and expert Professor Karen Musalo of the Center for Gender and Refugee Studies at Hastings Law to ask in a recent press report: “How can you have a fair game when the referee is unfair?” https://immigrationcourtside.com/2021/08/03/😎👍🏼good-news-justice-even-as-latest-report-shows-massisive-failure-👎🏽🤮-eoir-poor-judging-politicized-practices-unhel/
Obviously, you can’t have a “fair game” under these circumstances. That was the whole point of the Trump DOJ, along with some gratuitous cruelty, malicious incompetence, and outright scofflaw behavior thrown in!
As Dean Caplow points out, the solutions aren’t “rocket science.” 🚀 But, so far, the problems EOIR continue to fester and undermine American justice!
