Testimony for Montgomery County Council Hearing

May 1, 2018

Special Appropriation

Judge Paul W. Schmidt

Good evening, Council President, Vice Council President, Council Members,

For 21 years, I served as an Appellate Judge on the Board of Immigration Appeals, and a U.S. Immigration Judge at the Arlington Immigration Court.  I was the Chair of the Appeals Board for six years. Though I am since retired, I follow with great interest and concern the immigration court’s troubling trajectory.

There is a real crisis in the immigration system today: the attack on Due Process in our U.S. Immigration Courts.  This crisis has been many administrations in the making.  However, the current administration has done more damage to Due Process more quickly than any prior administration.  Its most recent insistence on quotas for immigration judges, the attempted dissolution of the Legal Orientation Program, combined with increased immigration enforcement, and inhumane detention policies, has eradicated any semblance of Due Process.

I applaud the Council for recognizing the need to ensure Due Process for its immigrant residents facing removal by funding deportation defense.  I further urge you to make that deportation defense universalby providing legal representation to all Montgomery County residents facing removal regardless of any previous interactions with the criminal justice system. 

All immigrants facing removal are entitled to Due Process.  No person should be denied access to justice.  The only way to ensure that an immigrant has Due Process in the current immigration system is by providing competent legal representation.  Without an attorney, there is simply no other way an immigrant can navigate the extremely complex legal immigration system.

When an immigrant appears without an attorney, the Immigration Judge must rely on the attorney for the government; the person who is fighting to remove the immigrant from this country, to present the immigrant’s case.  Despite a judge’s best efforts, it is simply not possible to ensure that the immigrant has had all of the relevant facts about his or her case presented and that all legal defenses to removal have been explored, explained, and understood.  While some judges might like to believe that they are capable of ensuring that those appearing before them without counsel have the same chance of relief as those appearing with counsel, I know from my experience that this is simply not possible. I also know that my courtroom ran more efficiently when all parties were represented; frivolous arguments decreased, continuances decreased, and the number of appeals decreased as well. Simply put, a good judge knows that having competent counsel representing both parties yields a more efficient and just outcome.

Allow me to assure this council that, though representation by an attorney dramatically enhances any immigrant’s chance of success in immigration court, it by no means guarantees success.  The immigration laws are sometimes rigid, by design. Relief is only available in those cases where the law explicitly permits it.

Moreover, serious criminal convictions often will exclude, by operation of law, even the most sympathetic petitioner from relief. In some instances, the presence of the conviction precludes relief altogether, in other cases, the judge must balance the equities, and for immigrants who have committed serious crimes, the equities usually weigh in favor of removal. 

However, I maintain that all immigrants should have access to counsel, regardless of their history with the criminal justice system, because the only way an immigration judge can make a just, informed decision is if the immigrant facing removal has Due Process.  And Due Process, particularly now, can only be guaranteed through the competent representation of an attorney.

I urge this council to leave to the immigration judges, a body expert in the immigration law, the task of determining what consequences a criminal conviction should have upon an immigrant’s ability to remain in the United States.  Do not deny Due Process to any member of your community. Do not deny access to justice to immigrants facing removal, simply because of their criminal history.  In doing so, you put the deserving and the underserving in the same category and risk denying relief to vulnerable, deserving members of your community.

The erstwhile vision of the Immigration Court, the vision which I helped develop in the late 1990s was for the court to “be the world’s best administrative tribunal[s] guaranteeing fairness and due process for all.”  Instead, the Department of Justice’s ever-changing priorities and morbid fascination with increased detention as a means of deterrence have turned the Immigration Court system into a tool of enforcement.

I urge this council to vote in favor of the special appropriation and thank you for the opportunity to testify today.

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My friend and pro bono superstar Claudia Cubas, Litigation Director of the Capital Area Immigrants Rights (“CAIR”) Coalition was the “lead witness”  favoring the proposal. It was “democracy in action” as folks with strong views both ways on the issue appeared to express their views to their elected representatives. As it should be!

 PWS

05-02-18