"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.
Go on over to Dan Kowalski’s LexisNexis Immigration Community here for all the links to the 19-part series on You Tube made possible by the American Law Institute with an introduction by none other than Justice Sandra Day O’Connor:
Thanks, Michele, for all you do for the cause of Due Process for migrants and better Immigration Court practices!
PWS
11-17-17
Dan Kowalski reports at LexisNexis Immigration Community (quoting Respondent’s attorney Humza Kuzma):
“We appealed to the BIA, stating that the IJ was ignoring the law of the case and his direct instructions from a higher court. As Hassan noted in his FB post, we included redacted cases from a FOIA request another attorney had conducted, showing the various instances in the past two years where the IJ had been remanded in asylum proceedings. Yesterday, we got the remand, which reconfirmed that the prior rulings in the case were vacated and relying upon them was in judicial error, and instructed the IJ to grant our client a completely new hearing with an open record, and issue a new decision.”
BIA PANEL: Appellate Immigration Judges Guendelsberger, Kendall Clark, Grant
OPINION BY: Judge Edward R. Grant
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Read the full report and the BIA’s unpublished opinion at the link.
PWS
11-11-17
Go on over to Dan Kowalski at LexisNexis Immigration Community to read this outrageous abuse of justice by a U.S. Immigration Judge!
Here’s the link:
The BIA Panel that got this one right was:
Interestingly, this panel configuration seldom, if ever, appears in BIA precedent decisions. Nor are these Judges recorded as dissenting or commenting upon the BIA’s generally anti-asylum precedents, some of which almost mock the BIA’s leading precedent on the generous nature of asylum law following the Supreme Court’s decision in INS v. Cardoza-Fonseca: Matter of Mogharrbi, 19 I&N Dec. 439 (BIA 1987).
So, why are the Appellate Immigration Judges who appear to have a good understanding of asylum law that is much more in line with the Supreme Court, the U.S. Courts of Appeals, and the BIA’s own pre-2003 precedents “buried in obscurity?” Meanwhile, those Appellate Immigration Judges who evince a lack of understanding of asylum law, the realities of being asylum applicants in the “purposely user unfriendly” Immigration Courts, or any visible sympathy for the plight of asylum seekers (even those who are denied under our overly technical legal standards often face life threatening situations upon return — some actually die — we just choose not to take the necessary steps to protect them) seem to be among the “featured” in BIA precedents? Do all of the BIA Judges really agree with every precedent. If not, why aren’t we seeing some public dialogue, debate, and dissent, as with every other collegial, deliberative court in America? What’s the purpose and value of a “deliberative court” that almost never engages in any public deliberation (about some of the most difficult and complex questions facing our nation)? Where’s the accountability if all BIA Appellate Judges are not recording their votes on published precedents?
As you read the BIA decision and the decision below of Judge Randall Duncan of the Stewart Immigration Court here are a few questions you might keep in mind:
Taking a broken system and trying to expand it and make it run faster is simply going to produce more unfair and unjust results. In other words, it would be “insanely stupid.” The Immigration Court system has some serious quality of decision-making, bias, consistency, and due process issues that must be solved before the system can be expanded. Otherwise, the system will be institutionalizing “bad practices” rather than the “best practices.”
PWS
11-06-17
Dan Kowalski at LexisNexis and Heidi Altman at the Heartland Alliance sent in the following:
Heidi Altman, Director of Policy
National Immigrant Justice Center
A HEARTLAND ALLIANCE Program
Washington, DC Office
Tel: 312-718-5021
Email: haltman@heartlandalliance.org
From: Daniel Kowalski <dkowalski@allott.com<mailto:dkowalski@allott.com>>
Date: July 19, 2017 at 6:01:16 PM EDT
To: “immprof@lists.ucla.edu<mailto:immprof@lists.ucla.edu>” <immprof@lists.ucla.edu<mailto:immprof@lists.ucla.edu>>
Subject: [immprof] EOIR IJ Benchbook No Longer In Use (July 19, 2017) – AILA
EOIR IJ Benchbook No Longer In Use (July 19, 2017)
“EOIR confirmed that the EOIR Immigration Judge (IJ) Benchbook has been removed from EOIR’s webpage and is no longer being utilized. According to the agency, use of the IJ Benchbook was discontinued due to challenges in keeping the publication up to date with current case law.
Please note that AILALink<http://ailalink.aila.org/> now contains a copy of the IJ Benchbook as it appeared on the EOIR website as of April 27, 2017.”
Daniel M. Kowalski
Editor-in-Chief
Bender’s Immigration Bulletin (LexisNexis)
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Even for EOIR this is extreme BS. No time to keep up on the law? Just like no time for Immigration Judge training.
Just another degradation in due process, uniformity, and training. Ridiculous!
PWS
07-20-17
Dan Kowalski reports from LexisNexis Immigration:
“Fish v. Kobach, June 23, 2017 – “[D]efendant’s deceptive conduct and lack of candor warrant the imposition of sanctions. … [D]efendant made patently misleading representations to the court … The court cannot say that defendant flat-out lied in representing the content of the disputed documents. … “Most attorneys, of course, try to convey evidence in the best possible light for their clients. But there is a difference between putting evidence in the best possible light and blatantly misstating the evidence.” … When counsel’s false references in a brief indicate “that he has been either cavalier in regard to his approach to this case or bent upon misleading the court,” sanctions are appropriate. … [P]laintiffs are permitted to take the deposition of Secretary Kobach with respect to non-privileged information and evidence pertaining to the draft amendment and the photographed document. … The undersigned will preside over the deposition and contemporaneously resolve any disputes that arise.”
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Go to the link for the full decision.
Gee, Kris, the rules in Federal Court apply even to guys like you!
PWS
06-24-17
https://www.texasobserver.org/two-blatant-lies-governor-greg-abbotts-sanctuary-cities-op-ed/
Gus Bova writes in the Texas Observer:
“Governor Greg Abbott published an editorial in the San Antonio Express-News Friday defending Senate Bill 4 — the anti-“sanctuary cities” law that critics say will encourage racial profiling, undermine local policing efforts and tear immigrant families apart.
In the piece, titled “SB 4 will make Texas communities safer,” Abbott spreads at least two major lies: One, that only criminals need to worry about being asked for their papers under SB 4, and two, that the bill only requires jails to honor immigration detainers when a person is charged with a violent crime.
Abbott, who made “sanctuary cities” a legislative emergency this session, did not immediately respond to a request for comment.
The governor writes: “Regardless of your immigration status, if you have not committed a crime and you are not subject to an Immigration and Customs Enforcement [ICE] detainer, you have nothing to fear about the change in Texas law.”
That isn’t true. Thanks to a hotly contested amendment, the bill specifically permits police to request proof of citizenship from someone who’s merely been detained, not arrested. Put simply, being stopped by a cop does not mean you’ve committed a crime. Abbott seems to have forgotten about “innocent until proven guilty.”
Second, Abbott writes: “SB 4 requires law enforcement agencies to honor ICE detainers issued for violent criminals.”
In fact, the law requires jails to honor all ICE detainers. Detainers are voluntary requests from ICE to local jails to keep someone locked up beyond when they would normally be released, so that federal agents may arrive and potentially deport them.”
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Thanks to Dan Kowalski over at LexisNexis for forwarding this item!
PWS
05-23-17
Here is the guidance memorandum published by MD Attorney General Brian Frosh on state and local cooperation with ICE:
http://www.marylandattorneygeneral.gov/Reports/Immigration_Law_Guidance.pdf
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Many thanks to Dan Kowalski at LexisNexis and Professor Elizabeth Keyes at the University of Baltimore School of Law for bringing this to my attention.
PWS
05-16-17
Nolan “Eagle Eyes” Rappaport kindly alerted me to this comprehensive source of USCIS immigration and citizenship data:
https://www.uscis.gov/tools/reports-studies/immigration-forms-data
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Additionally, Dan “Mr. Blog” Kowalski over at Lexis was kind enough to send me this like to a nationwide “Travel Ban” Litigation Database from “Lawfare,” helpfully organized by Circuit:
https://urldefense.proofpoint.com/v2/url?u=https-3A__lawfareblog.com_litigation-2Ddocuments-2Dresources-2Drelated-2Dtrump-2Dexecutive-2Dorder-2Dimmigration&d=DQIFAg&c=euGZstcaTDllvimEN8b7jXrwqOf-v5A_CdpgnVfiiMM&r=CeRQeXwCO1XABbcnui0VccohOAIcGihPTU6SjunQmI&m=8DFHNqD9Wh7TH2g60EeuBylX7190m96Q_YTMDTMs5P0&s=evpzDZD-Isv1nTFviIW1D-wNdPdmyJyu9fl1qEQXgf8&e=
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Check both of these out! Thanks again to Nolan and Dan for their tireless efforts to promote an informed approach to immigration law and policy!
PWS
05-07-17
https://thinkprogress.org/uscis-ombudsman-877d18a67d97
Dan Kowalski at LexisNexsis Immigration Community forwards the following item from Think Progress:
“The U.S. Department of Homeland Security is set to announce the appointment of a controversial former leader of an anti-immigrant policy center to be its ombudsman for U.S. Citizenship and Immigration Services (USCIS) on Monday, according to two sources aware of the news.
Between 2005 and 2015, Julie Kirchner worked first as its director of government relations then as executive director at the Federation for American Immigration Reform (FAIR), an organization founded by an alleged white nationalist who advocates for stricter immigration. During her time at FAIR, the organization proposed efforts to end birthright citizenshipand reduce legal immigration levels. She left FAIR in 2015 to become an immigration adviser on then-presidential candidate Donald Trump’s campaign.
Immigrant advocates are worried Kirchner’s role as ombudsman will give her direct access to include or exclude stakeholders with an immigration nexus who may shape her formal recommendations based on how the agency should exercise authority over policy implementation.
“The appointment of Kirchner to the position of CIS ombudsman is extremely troubling when you consider the fact that she spent 10 years working for FAIR, a group founded on racist principals that has spent decades demonizing and vilifying immigrants,” Heidi Beirich, the director of SPLC’s Intelligence Project, told ThinkProgress in an email.
USCIS public affairs officer Katie Tichacek told ThinkProgress the agency “does not comment on potential personnel announcements. The two people who confirmed information of Kirchner’s appointment were one current DHS employee and one former DHS employee.
Congress created the role of the USCIS ombudsman under the Homeland Security Act of 2002 as an “impartial and independent perspective” to the agency housed within DHS, according to a DHS agency website. Among tasks like meeting with external stakeholders, ombudsman are responsible for resolving problems with pending immigration cases, sharing feedback on emerging trends in migration patterns, and issuing formal recommendations and proposals to address concerns. They cannot make or change USCIS decisions.
In her 2016 annual report to Congress, former USCIS Ombudsman Maria M. Odom said engaging with external stakeholders was “integral to our full understanding of the issues and their impact on the USCIS customer.”
January Contreras, a former USCIS ombudsman between 2009 and 2012 described her role as a DHS “watchdog.” She now works as the CEO of Arizona Legal Women and Youth’s Services (ALWAYS), which provides pro bono legal services for trafficking survivors and young people.
During her time, Contreras met with a wide variety of people that spanned the immigration spectrum, including human resource and vice presidents looking to expand high-tech visas, undocumented immigrants, and former refugees who pointed out which processes they had trouble with.
“[The role] is someone who is listening outside the DHS bubble,” Contreras told ThinkProgress Friday. “My job, when I was the ombudsman, was to listen to people who were dissatisfied at what was going on at the DHS. Sometimes people would bring complaints, sometimes they would bring ideas, sometimes they were long-simmering issues and sometimes they were rather new issues.”
The Southern Poverty Law Center (SPLC) has labeled FAIR as a hate group, pointing to a series of racist memos written by the organization’s founder John Tanton warning of a “Latin onslaught.” In the past, Tanton and other supporters promoted radical population control measures like sterilizing Third World women and making wider use of an abortion pill. FAIR has received $1.5 million from the pro-eugenics organization Pioneer Fund. Tanton also founded NumbersUSA and the Center for Immigration Studies (CIS), two organizations that consulted Trump or senior administration officials during his campaign.
“At the end of the day, the ombudsman is still accountable to Congress to improve services, not restrict services,” Contreras said. “So in fact if there’s an ombudsman in place interested only in restricting immigration I hope that Congress will have some conversations, whether privately or publicly, to make sure they’re doing the job they’re hired to do.”
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Wishful thinking on Contreras’s part, I’m afraid. With the GOP firmly in control of the political branches of Government, and Secretary Kelly proving to be a “shill” for Sessions and the restrictionists, I wouldn’t bet on any meaningful oversight of the Ombudsman position.
Quite to the contrary, I expect the Ombudsman to become an extension of the VOICE program for “victims of crime” or, perhaps, a conduit for anonymous “tips” on how to locate individuals who potentially are removable from the U.S.
PWS
04-30-17
https://us.vocuspr.com/Publish/515903/vcsPRAsset_515903_132952_3a1e221c-3f7f-4046-8513-36015233ac7e_0.jpg
American Bar Association
Communications and Media Relations Division
www.americanbar.org/news
Release: Immediate
Contact: Karen DeWitt
Phone: 202-662-1502
Email: Karen.DeWitt@americanbar.org
Online: http://www.americanbar.org/news/abanews/aba-news-archives/2017/02/aba_urges_president.html
ABA urges President Trump to withdraw order restricting travel from seven Muslim-majority countries
MIAMI, Feb. 6, 2017 — The American Bar Association urged President Donald Trump today to withdraw the executive order “Protecting the Nation from Foreign Terrorist Entry into the United States,” which restricts immigration from seven Muslim-majority countries, suspends all refugee admission for 120 days and indefinitely suspends the entry of Syrian refugees.
By voice vote, the ABA House of Delegates, the association’s policy-making body, adopted resolution 10C calling on the executive branch to ensure full, prompt, and uniform compliance with court orders addressing the executive order.
The House––made up of 589 members representing state and local bar associations, ABA entities and ABA-affiliated organizations––also urged the administration to take care that all executive orders regarding border security, immigration enforcement and terrorism:
respect the bounds of the U.S. Constitution and due process rights;
not use religion or nationality as a basis for barring an otherwise eligible individual from admission to the United States;
adhere to the U.S.’s international law obligations relating to the status of refugees and to the principle of non-refoulement; and
facilitate a transparent, accessible, fair and efficient system of administering the immigration laws and policies of the United States and ensure protection for refugees, asylum seekers, torture victims and others deserving of humanitarian refuge;
In Resolution 10B, the House also reaffirmed the ABA’s support of legal protection for refugees, asylum seekers, torture victims, and others deserving of humanitarian refuge. It urged Congress to adopt additional legislation to appropriate funds for refugee applications and processing, and mandate that refugees receive an appropriate individualized assessment in a timely fashion that excludes national origin and religion as the basis for making such determination.
The association’s policy-making body discussion took place at the James L. Knight Center of the Hyatt Regency Miami. The session concluded the 2017 ABA Midyear Meeting, which began Feb. 1.
With more than 400,000 members, the American Bar Association is one of the largest voluntary professional membership organizations in the world. As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law. View our privacy statement on line. Follow the latest ABA news at www.americanbar.org/news and on Twitter @ABANews.
If you would rather not receive future communications from American Bar Association, let us know by clicking here.
American Bar Association, 321 N Clark St, Chicago, IL 60654-7598 United States
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Thanks to my good friend Dan Kowalski over at Lexis Nexis for forwarding this to me.
PWS
02/07/17
Dan Kowalski at Lexis Nexis summarizes the most hard-hitting part of Professor Martin’s analysis of the Executive Order on Refugees and Visas:
“30 Jan. 2017 – Prof. David A. Martin (please read his full bio) has annotated President Trump’s 27 Jan. 2017 Executive Order. Among other things, Prof. Martin states, “The order is a priceless recruiting tool for ISIS and similar movements, because it so easily fits their narrative that the United States is the enemy of all Muslims. And it will discourage tips and information from American Muslim communities — information that in the past has proved highly valuable to the thwarting of terrorist acts. Accordingly, the Bush and Obama administrations both strived to avoid all measures that could be painted as broadly anti-Muslim. Much of that vital engagement with Muslim communities has been gravely undone by this order.””
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Go on over to Lexis Nexis at the link for further links to the complete analysis in Vox, Professor Martin’s spectacular biography, and a great picture of Professor Martin.
PWS
01/30/17
12-27-2016 | 08:17 AMAuthor: Daniel M. Kowalski
Paul Wickham Schmidt Takes to the Web! – www.immigrationcourtside.com
immigrationcourtside.com
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.
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Many thanks to my long time friend and the “King of Immigration Bloggers” Dan Kowalski. I got most of my inspiration to do this from reading Dan’s timely and informative blogs over the years. Usually, he had more information about what was “really happening” in the Immigration Court System than those of us who were working there!
PWS
12/27/16