"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt and Dr. Alicia Triche, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
EOIR plans to resume non-detained hearings on July 6, 2021 at all remaining immigration courts. Attorneys have reported seeing non-detained cases advanced or continued with less than 30 days’ notice before the individual hearing, so check your EOIR portal.
Reception window: weekdays 8:30am – 12:00pm. In-person, hard-copy service of documents will only be accepted at the window for detained cases pending at the Varick Street Immigration Court.
eService: For detained and non-detained cases pending before the Varick Street Immigration Court, you must use the “Varick Street NYC” location. For cases pending before the Immigration Courts at 26 Federal Plaza and 290 Broadway, you must use the “New York City” location. Beginning July 6, 2021, documents submitted with the wrong location designation will be rejected.
TOP NEWS
Judge Robert A. Katzmann (1954-2021) Second Circuit Court of Appeals PHOTO: US Courts.com
NYT: “Almost single-handedly he convinced the organized bar to provide free quality representation for thousands of needy immigrants,” said Jed S. Rakoff, a senior U.S. District Court Judge. “No judge ever took a broader view of the role of a judge in promoting justice in our society, or was more successful in turning those views into practical accomplishment.”
Vox: While details of the plan are short, [Biden] has asked the Justice Department to restart its access to justice work, which was on hiatus during the Trump administration, and convened a roundtable of civil legal aid organizations to advise him. But the Biden administration need not look far for potential solutions: The New York Immigrant Family Unity Project, a first-of-its-kind program that provides publicly funded lawyers to every detained or incarcerated immigrant in the state, offers a helpful model.
Bloomberg: The Justice Department and Department of Homeland Security plan to propose new criteria for asylum-seekers as part of Biden’s broader goal to retool the nation’s immigration system. The Department of Homeland Security will draft ways to strengthen protections for undocumented individuals brought to the U.S. illegally as children, under the program known as Deferred Action for Childhood Arrivals (DACA). See also Aaron Reichlin-Melnick’s Twitter thread summarizing the agenda.
Reuters: A new U.S. immigration policy announced on Monday will expand access to work permits and deportation relief to some immigrants who are crime victims while their visa cases are pending.
WaPo: Though President Biden quickly signed several executive orders to roll back some of President Donald Trump’s most draconian policies — including one that sent asylum seekers back to Mexico to await their court hearings — a number of other restrictive measures and rulings that directly affect domestic violence survivors remain in place.
NBC: Among the judges’ concerns, as described to NBC News: There aren’t enough of them, they need more support staff, and they’ve felt political pressure from their bosses at the Justice Department.
AP: VOICE will be replaced by The Victims Engagement and Services Line, which will combine longstanding existing services, such as methods for people to report abuse and mistreatment in immigration detention centers and a notification system for lawyers and others with a vested interest in immigration cases.
Reuters: An effort by U.S. President Joe Biden to reunite migrant families separated by the previous administration is moving slowly, with only seven children reunited with parents by a task force launched in February, according to a U.S. Department of Homeland Security (DHS) report released on Tuesday. Another 29 families are set to be reunited in the coming weeks, the report said.
NYT: There was a slight increase in the number of border crossings, encounters and apprehensions overall during the same time period, a sign that the record surge of migrants trying to get into the country this spring could be starting to stabilize.
WaPo: As of May 31, nearly 9,000 children were kept at unlicensed sites, compared with 7,200 at licensed shelters, court filings by the U.S. government said. While the unlicensed facilities were running at near capacity in May, the licensed facilities were only about half full, according to a report filed by the agency tasked with the children’s care.
WaPo: U.S. Customs and Border Protection apprehension numbers for May released recently show the share of families — about 20 percent — being expelled under Title 42 continued to decline. Although the overall number of families reaching the Southwest border declined as well, the data shows that eight out of 10 families that Border Patrol encountered were released into the country and allowed to pursue immigration cases.
ABC: Her trip to meet with Guatemalan and Mexican leaders is part of a two-track approach to the issue, senior administration officials have said, of “stemming the flow” of migration in the near term and establishing a “strategic partnership” with Mexico and Northern Triangle countries “to enhance prosperity, combat corruption and strengthen the rule of law” in the longer term.
ImmProf: It’s one of those wonky SCOTUS plurality opinions. Justice Kagan announces the judgement of the court and gets three justices (Sotomayor, Kennedy, and Gorsuch) to sign onto her opinion, which focuses on the statutory phrase “against the person of another.” Justice Thomas concurs, agreeing in the judgment that Borden’s conviction doesn’t qualify as a violent felony, though he focuses on different statutory language: “use of physical force.”
Law360: The Fifth Circuit declined to review a Salvadoran man’s appeal for humanitarian deportation relief Wednesday, finding that immigration judges had rightfully denied his claims after he failed to show he was a member of a persecuted group.
LexisNexis: Arnoldo Antonio Vasquez, a former Salvadorian military officer, was a naturalized American citizen. Based on his role in extrajudicial killings and a subsequent cover-up occurring during armed conflict in El Salvador, the government sought to revoke his citizenship, that is, to denaturalize him.
The court held that the Honduran petitioner did not face past persecution based on her membership in a particular social group (PSG) consisting of her family; rather, the court found she was targeted because she owned land that once belonged to her father. (Padilla-Franco v. Garland, 6/2/21) AILA Doc. No. 21060736
Applying the “reason to believe” standard under INA §212(a)(2)(C), the court held that substantial evidence supported the BIA’s conclusion that there was probable cause to believe that petitioner was involved in illicit drug trafficking and was thus inadmissible. (Rojas v. Garland, 5/27/21) AILA Doc. No. 21060735
The court held that the government is not required to prove that a returning lawful permanent resident (LPR) meets an exception under INA §101(a)(13)(C) before it can parole the returning LPR into the United States for prosecution under INA §212(d)(5). (Vazquez Romero v. Garland, 5/28/21) AILA Doc. No. 21060737
Denying the petition for review, the court held that the Salvadoran petitioner was ineligible for asylum, because the gang that targeted her family had done so only as a means to the end of obtaining funds, not because of any animus against her family. (Sanchez-Castro v. Att’y Gen., 6/1/21) AILA Doc. No. 21060738
The BIA ruled that a mere continuation of an activity in the United States that is substantially similar to the activity from which an initial claim of past persecution is alleged cannot establish changed circumstances under INA §208(a)(2)(D). Matter of D-G-C-, 28 I&N Dec. 297 (BIA 2021) AILA Doc. No. 21060899
Law360: The First Circuit should stand by its decision to wipe a lower court ruling that blocked federal immigration authorities from making arrests in and around Massachusetts courthouses, despite the Biden administration’s order curbing many such arrests, the federal government argued Thursday.
Law360: A lawful permanent resident of the U.S. sued the Department of Homeland Security in Maryland federal court Wednesday, claiming an unreasonable delay in processing his wife’s spousal visa application, which he says has not been acted on since it was filed in January 2020.
USCIS issued three policy updates in the Policy Manual to clarify the expedited processing, improve RFE and NOID guidance, and increase the validity period for initial and renewal EADs for certain pending adjustment of status applications. AILA Doc. No. 21060934
USCIS updated policy guidance in its Policy Manual regarding the criteria used to determine whether a case warrants expedited treatment. AILA Doc. No. 21060936
USCIS: USCIS is updating the USCIS Policy Manual to implement a new process, referred to as Bona Fide Determination, which will give victims of crime in the United States access to employment authorization sooner, providing them with stability and better equipping them to cooperate with and assist law enforcement investigations and prosecutions.
USCIS: USCIS has made historical versions of the USCIS Policy Manual available to the public. These historical versions will reflect the pertinent policy in effect on a particular date and are being provided for research and reference purposes only. Users can find the historical versions under the “History” tab within the Policy Manual chapters. However, this tab will only reflect historical changes moving forward. For historical versions before June 11, you can visit the Internet Archive.
ICE provided interim guidance on motions to reopen in light of SCOTUS’s decision in Niz-Chavez v. Garland, stating that some noncitizens may now be eligible for cancellation of removal. Until 11/16/21, ICE attorneys will presumptively exercise prosecutorial discretion for these individuals. AILA Doc. No. 21061030
ICE provided guidance on submitting a prosecutorial discretion request to OPLA including a listing of relevant email addresses that can be used when submitting a request to OPLA field locations. AILA Doc. No. 21061430
EOIR issued a memo that provides EOIR policies regarding the effect of DHS’s updated enforcement priorities and initiatives. Memo is effective as of 6/11/21. AILA Doc. No. 21061133
EOIR: As part of EOIR’s ongoing efforts to improve operations and review existing policy memoranda, the following Policy Memorandum (PM) is rescinded: 1.PM 21-10, Fees.
I note that Judge Robert A. Katzmann spoke at several of our Immigration Judge Conferences and also attended a Georgetown Law Judicial seminar on inconsistency in asylum adjudication that I participated in as an Immigration Judge. He was instrumental in creating both the Immigrant Justice Corps and the NYC representation program for migrants.
Notably, Liz Gibson, of “The Gibson Report,” one of my former Georgetown Law students was also selected by Judge Katzmann and other experts for the super-competitive Immigrant Justice Corps! And we can see what a difference Liz is making every day!
Those of us committed to due process and fundamental fairness mourn Judge Katzmann’s passing. His enlightened, humane, and compassionate leadership will be missed.
Lots of important information for practitioners here. It illustrates that while ICE and USCIS are moving forward with some modest, long overdue due process and “best practices” reforms, EOIR under Garland continues to lag behind.
This week’s disclosures about the deep problems at the Trump DOJ, which have not been effectively addressed, show that under Garland the DOJ isn’t inclined to fix even the most obvious defects at Justice until they are exposed by outside groups and the public pressure grows. At a time when the DOJ needs bold, proactive progressive leadership, Garland’s “reactive” style of management and lack of aggressive progressive leadership continues to erode confidence in our justice system.
As illustrated by last week’s NBC Nightly News report on dysfunction, polarization, and lack of due process and fundamental fairness at EOIR, the ongoing disaster in our Immigration Courtsactually dwarfs all of the other problems at the DOJ. And, it certainly adversely affects more human lives and American communities.
Due process, human rights, and racial justice advocates and experts should not trust Garland and his team to fix EOIR before it’s too late. In the first place, he currently has nobody on his “team” with the Immigration Court experience and the progressive expertise to get the job done!
So it’s going to take more aggressive litigation, more demands to Congress for Article I, more op-eds, more front page articles and news reports, more calls and letters to the White House, and more “creative disruption” to force Garland’s hand on EOIR reform.
Additionally, rather remarkably, and contravening the Biden Administration’s pledge of honoring diversity, the DOJ has done nothing on its own to recruit or attract a diverse group of expert progressive judges. Indeed, Garland actively undermined the effort with an outrageous “17-judge giveaway” to the disgraced Billy Barr. This week’s revelations showed just how ridiculous was Garland’s inappropriate “deference” to Barr-selected, non-progressive, non-diverse judges!
Therefore, it’s absolutely critical that the rest of us keep beating the drum and encouraging the “best and brightest” progressive immigration experts to apply for judicial and executive positions at EOIR. In particular, the immigration judiciary lacks representation by talented Latina and Latino judges with experience representing asylum applicants and other migrants.
They are out there, for sure! But EOIR’s aggressively anti-Hispanic, often misogynist culture, the anti-Hispanic “jurisprudence” churned out by Sessions, Barr, and the BIA, and the demeaning and “dumbing down” of the Immigration Judge jobs to be nothing more than glorified “deportation clerks” has effectively discouraged the folks we need on the bench from applying. And, posting for short periods on “USA JOBS” is not a serious effort at recruiting from the outside or creating a more representative pool of applicants.
NAIJ is doing some of the “diversity outreach” that that should be DOJ’s job. But, they need help! Another reason why Garland’s failure to restore NAIJ as the representative of Immigration Judges is highly problematic! These things should be “no brainless” under a Dem Administration. Instead, at Garland’s DOJ, it’s like pulling teeth!
A number of minority attorneys have told me that they felt unwelcome at the “Trump EOIR” or thought that they couldn’t function independently and effectively in a culture that obviously demeaned and dehumanized people of color.
We can’t force positive, progressive change in the toxic culture at EOIR without getting “agents of change” and judicial role models from currently underrepresented communities on the inside, where they belong. Also, those who actually have represented individuals in Immigration Court have both organizational skills beyond those of many government bureaucrats and practical problem solving ability that simply isn’t promoted or recognized within the inefficient “top-down” EOIR bureaucracy.
So, members of the NDPA, get those EOIR applications in there! Garland is tone deaf to the necessity and the opportunity for a progressive judiciary at EOIR that he squanders every day with his lackadaisical non-leadership. So, as is often the case with Dem Administrations, you’re going to have to take the initiative, break down the the doors of bias and incompetence at EOIR, and create the progressive judiciary of the future with or without Garland’s support!
EOIR is going to have trouble continuing to keep the “best and brightest” progressives out of the Immigration Judiciary. Don’t wait for change to come to you — not going to happen under Garland! Be an agent of aggressive, progressive change! Take the due process/racial justice revolution to the halls of justice @ Justice!
“Omar Siagha has been in the US for 52 years. He’s a legal permanent resident with three children. He’d never been to prison, he says, before he was taken into Immigration and Customs Enforcement detention — faced with the loss of his green card for a misdemeanor.
His brother tried to seek out lawyers who could help Siagha, but all they offered, in his words, were “high numbers and no hope” — no guarantee, in other words, that they’d be able to get him out of detention for all the money they were charging.
Then he met lawyers from Brooklyn Defender Services — part of the New York Immigrant Family Unity Project, an effort to guarantee legal representation for detained immigrants. They demanded only one thing of him, he recalls: “Omar, you’ve got to tell us the truth.”
But Siagha’s access to a lawyer in immigration court is the exception.
There’s no right to counsel in immigration court, which is part of the executive branch rather than the judiciary. Often, an immigrant’s only shot at legal assistance before they’re marched in front of a judge is the pro bono or legal aid clinic that happens to have attorneys at that courthouse. Those clinics have such limited resources that they try to select only the cases they think have the best shot of winning — which can be extremely difficult to ascertain in a 15-minute interview.
But advocates and local governments are trying to make cases like Siagha’s the rule, not the exception. Soon, every eligible immigrant who gets detained in one of a dozen cities — including New York, Chicago, Oakland, California, and Atlanta — will have access to a lawyer to help fight their immigration court case.
The change started at Varick Street. The New York Immigrant Family Unity Project started in New York City in 2013, guaranteeing access to counsel for detained immigrants.
According to a study released Thursday by the Vera Institute for Justice (which is now helping fund the representation efforts in the other cities, under the auspices of the Safe Cities Network), the results were stunning. With guaranteed legal representation, up to 12 times as many immigrants have been able to win their cases: either able to get legal relief from deportation or at least able to persuade ICE to drop the attempt to deport them this time.
So far, cities have been trying to protect their immigrant populations through inaction — refusing to help with certain federal requests. Giving immigrants lawyers, on the other hand, seemingly makes the system work better. And if it works, it could leave the Trump administration — which is already upset with the amount of time it takes to resolve an immigration court case — very frustrated indeed. (The Department of Justice, which runs immigration courts, didn’t respond to a request for comment.)
Immigration court is supposed to give immigrants a chance for relief. In reality … it depends.
As federal immigration enforcement has ramped up over the past 15 years, nearly every component of it has gotten a sleek bureaucratic upgrade, a boatload of money, and heightened interest and oversight from Congress. But immigration court has been overlooked as everything else has been built up around it.
The reason is simple. Chronologically, most immigrants have to go through immigration court after being apprehended and before being deported. But bureaucratically, immigration courts are run by the Executive Office for Immigration Review, housed in the Justice Department instead of by the Department of Homeland Security. And when it comes to money and bureaucratic attention, that makes all the difference in the world.
From the outside, the striking thing about immigration court is how slow it is — lawyers already report that hearings for those apprehended today are scheduled in 2021. That’s also the Trump administration’s problem with it; the federal government is sweeping up more immigrants than it did in 2016 but deporting fewer of them.
But it doesn’t seem that way from the inside, to an immigrant who doesn’t have any idea what’s going on — especially one who’s being kept in detention.
This is the scene that Peter Markowitz accustomed himself to, as a young immigration lawyer at the Varick Street courtroom in New York: “People brought in, in shackles, with their feet and hands shackled to their waist, often not understanding the language of the proceedings, having no idea of the legal norms that were controlling their fate — being deported hand over fist.”
I know he’s not exaggerating; in my first morning watching immigration court proceedings in Minneapolis in 2008, I saw at least 10 detainees get issued deportation orders before lunch. Almost none had lawyers. Sometimes the judge would pause and explain to the detainee, in plain English, what was really going on — but she didn’t have to, and sometimes she wouldn’t bother.”
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Read Dara’s full article at the link.
No lawyer = no due process. Rather than trying to hustle folks out of the country without a full and effective chance for them to be heard — in other words, true Due Process — Jeff Sessions should be changing the Immigration Court system to put less reliance on detention and detention center “kangaroo courts” and more emphasis on insuring that each individual scheduled for a hearing has fair and reasonable access to competent counsel.
I totally agree that due process can’t be put on a “timetable,” as Sessions and his crew at the DOJ seem to want. As observed by none other than Chief Justice John Roberts — certainly no “bleeding heart liberal” —“It takes time to decide a case on appeal. Sometimes a little; sometimes a lot.”Nken v. Holder, 556 U.s. 418 (2009). That’s even more true on the trial level.
I have a somewhat different take on whether representation and providing full due process will ultimately slow down the system. In the short run, represented cases might take longer than unrepresented ones (although I personally found that not invariably true). However, as noted by Chief Judge Katzmann, lack of representation both promotes wrong, and therefore unfair, results, but also inhibits the proper development of the law. (Perhaps not incidentally, I note that Chief Judge Katzmann actually took time to attend and participate in Annual Immigration Judge Training Conferences back in the day when the “powers that be” at DOJ and EOIR deemed such training to be a necessary ingredient of a fair judicial system — something that was eliminated by Sessions’s DOJ this year. Apparently, new, untrained Immigration Judges can be expected to “crank out” more final orders of removal than trained judges.)
When I was in Arlington, the vast majority of the non-detained respondents were represented, and the majority of those got some sort of relief — in other words, won their cases to some extent. As time went on, this development required the DHS to adjust its position and to stop “fully litigating” issues that experience and the law told them they were going to lose.
That, in turn, led to more efficient and focused hearings as well as decisions to drop certain types of cases as an exercise of prosecutorial discretion. Had that process been allowed to continue, rather than being artificially arrested by the Trump regime, it could well have eventually led to more efficient use of docket time and alternate means of disposing of cases that were “likely losers” or of no particular enforcement value to the DHS or the country at large.
By contrast, “haste makes waste” attempts to force cases through the system without representation or otherwise in violation of Due Process often led to appellate reversals, “do-overs,” and re-openings, all of which were less efficient for the system than “doing it right in the first place” would have been!
In my view (echoed at least to some extent by my colleague retired Judge Jeffrey Chase), more conscientious publication of BIA precedents granting asylum could and should have taken large blocks of asylum cases off the “full merits” dockets of Immigration Judges — either by allowing them to be “short docketed” with the use of stipulations or allowing them to be favorably disposed of by the DHS Asylum Offices.
No system that I’m aware of can fully litigate every single possible law violation. Indeed, our entire criminal justice system works overwhelmingly from “plea bargaining” that often bears little if any resemblance to “what actually happened.” Plea bargaining is a practical response that reflects the reality of our justice system and the inherent limitations on judicial time. And effective plea bargaining requires lawyers on both sides as well as appropriate law development as guidance that can only happen when parties are represented. The absurd claim of Sessions and the DHS that the law allows them no discretion as to whether or not to bring certain categories of removal cases is just that — absurd and in direct contradiction of the rest of the U.S. justice system.
The current policies of the DHS and the DOJ, which work against Due Process, rather than seeking to take advantage of and actively promote it, are ultimately doomed to failure. The only question is how much of a mess, how many wasted resources, and how much pain and unfairness they will create in the process of failing.
Andrea Saenz, mentioned in the article is a former Judicial Law clerk at the New York Immigration Court. I have always admired her clear, concise, “accessible” legal writing — much like that of Judge Jeffrey Chase — and have told her so.
I am also proud that a number of attorneys involved in the “New York Project” and the Brooklyn Defenders are alums of the Arlington Immigration Court or my Georgetown Law RLP class — in other words, charter members of the “New Due Process Army!” They are literally changing our system, one case and one individual life at a time. And, they and their successors will still be at it long after guys like Jeff Sessions and his restrictionist cronies and their legally and morally bankrupt philosophies have faded from the scene.
Thanks to my friend the amazing Professor Alberto Benítez from the GW Law Immigration Clinic for sending me this item!
