"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.
One is the “practical wisdom” that was
Kronman’s focus. That’s a big topic, of course, but
part of it involves recognition that the function of
the legal system is ultimately to provide answers to
very practical questions.
Frances Perkins (1880-1965) U.S. Secretary of Labor (1933-45) PHOTO: Public realmDr. Rebecca Brenner Graham Teacher, Author, Historian PHOTO: Rebeccabrennergraham.com
Dear Miss Perkins: A Story of Frances Perkins’s Efforts to Aid Refugees From Nazi Germany
By Rebecca Brenner Graham
Citadel Press 2025
Reviewed by Paul Wickham Schmidt[1] for immigrationcourtside.com
May 29, 2025
As someone who has spent more than five decades working on immigration issues, many of them involving refugees and those seeking asylum, in and out of Government, I found Dear Miss Perkins by Rebecca Brenner Graham interesting and in many ways moving.
True, the book suffered from some editorial and organizational difficulties: more like a string of essays than a unified volume with a thesis or overall theme; lots of repetition; some awkward sentence structure; and lack of a comprehensive index were among the most noticeable and occasionally annoying. Full disclosure: I mostly listened to the audiobook while driving from the D.C. area to Kansas City, Missouri to participate as a faculty member in the 2025 Immigration Court Trial Litigation College sponsored by Pen & Sword. The “road trip audio experience” might have minimized some of the book’s weakness as noted above.
I related to Perkins’s struggle to achieve “good government” and humane, sensible, practical administration of the immigration laws, as well as her frustrations on being thwarted, mirrored by my own Government experiences. Like her, my efforts at institutionalizing best practices and interpretations were ultimately largely unsuccessful. Yet, like her, I was able to solve “real life” (often life or death) problems, save lives, teach and inspire others, and get some degree of personal satisfaction in achieving things that helped others and overall benefitted our nation.
Here, in my own somewhat random order, are my major “takeaways” from the book, most of which remain as troublesome today as they did in Perkins’s era.
1) The prevalence of antisemitism in Government and society, a continuing issue.
2) The persistence of racism, misogyny (frequently directed at Perkins herself), bigotry, and false economic arguments being used against immigrants.
3) The use of “legal fictions” in place of common sense in immigration legal opinions (e.g., the “charge bond controversy”).
4) Focusing more on what particular immigrants can do for the U.S., than on the humanity, needs, situation, and potential of the immigrants themselves.
5) Lumping Nazism, socialism, and communism together as “totalitarianism.”
6) Minimizing the culpability of the German people for Nazism and the holocaust.
7) The extraordinarily poor performance of Congress in protecting refugees and other immigrants in a nation of immigrants.
8) The subservience of legal, Constitutional, and human rights of immigrants to domestic political considerations.
9) The enduring, and often toxic, nature of “turf battles” and arcane bureaucratic distinctions in overruling “good government,” efficiency, and practicality in the immigration bureaucracy.
10) Who you know often trumping fair treatment in individual cases.
11) Creative, progressive actions within the bureaucracy, such as those championed by Perkins, can save individual lives even if they can not systematically save everyone who should be saved.
12) The remarkable lack of empathy for child migration and family separation.
13) “Sanitization” of the saga of World War II (e.g., “Hogan’s Heroes Syndrome”), and diffusing or watering down the responsibility for the holocaust, and the other dehumanizing effects.
14) Intentionally overplaying immigration, particularly by refugees and other forced migrants, as primarily a national security/law enforcement concern rather than as a practical humanitarian response to recurring situations (e.g., the transfer of immigration responsibility from DOL to DOJ and eventually to DHS).
My parting thought is that Perkins’s tale confirmed what many of us already knew. It’s hard to survive as a progressive in Government even with friends in high places.
In an age of human progress in technology, I find it disturbing and puzzling indeed that regression has come to dominate immigration policy and that so many of the deadly and tragic mistakes, misconceptions, and lack of courage that faced Perkins remain very much with us today. As caring and engaged humans, we must strive for just solutions for the sake of future generations. Despite the current, largely unrelentingly negative rhetoric, immigration is integral to our country, is here to stay, and will continue to shape our nation and our world.
[1] *Retired U.S. Immigration Judge, retired adjunct law professor, former Chairman, Board of Immigration Appeals, former Deputy General Counsel and Acting General Counsel, “Legacy” Immigration & Naturalization Service, former law partner, current member of the Round Table of Former Immigration Judges. These are my views and do not represent the views of any organization or entity with which I am currently associated, have been associated in the past, or might become associated with in the future.
Professor Karen Musalo
Director, Center for Gender & Refugee Studies, Hastings Law
In times like these, we should not depend solely on the courts. There are many of us here in the U.S. who believe that the world’s refugee framework — developed in response to the profound moral failure of turning back the St. Louis — is worth fighting for. We need to take a vocal stand. The clear message must be that those fleeing persecution should never be returned to persecution.
It’s been a busy time for Karen. She writes in Linkedin:
I was very honored to be chosen by the 2025 graduates of UC Law, San Francisco, to be their faculty speaker. Our students truly inspire me, and make me hopeful for the future.
Karen Musalo speaking at UC Law graduation, May 2025. PHOTO: Linkedin
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Thanks for speaking out so forcefully and articulately, my friend! Sticking to and standing up for values and the rule of law is important, particularly in an age of scofflaws, myth spreaders, and dehumanizers! One need look only as far as the St. Louis incident that you cite to see how even with the benefit of historical knowledge and fact, some among us stubbornly stick to lies, myths, and xenophobia with tragic and deadly results.
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
[T]he Board in Matter of A-A-R- impermissibly reinterpreted the evidence in a very selective way in order to reach a different conclusion than that reached by the trier of fact. As the Fourth Circuit recently held in reversing the Board, “In conducting clear error review, the BIA may not reweigh evidence or ‘substitute[ ] its own judgment for that of the IJ.’”
For all of the above reasons, a prediction that A-A-R- will not withstand circuit court scrutiny would not be clearly erroneous.
Thanks, Jeffrey, my friend and colleague, for your scholarly exposition of the BIA’s result-oriented sophistry. It’s no coincidence that in erroneously reversing a solid CAT grant to El Salvador the BIA chose, as it seldom does in other than a negative context, to reject a very viable form of mandatory protection, to a country currently in the news, which is available without regard to criminal record, alleged gang membership, and /or discretionary factors.
By choosing to designate it as a rare precedent, the “captive” BIA appears to be fulfilling the political demands of the Trump Administration to be able to argue, contrary to the Supremes, that no fair hearings are necessary in similar cases of illegal removals because an ultimate negative result is foreordained by precedent (even though that is clearly wrong, even under A-A-R-).
Administration lawyers have even gone to the extraordinary extent of trying to— so far unsuccessfully — submit and argue that bogus “predictive denials” — basically the DHS’s position without any opportunity to challenge — can be relied upon by a reviewing Article III court to deny the return of individuals wrongfully deported. What a complete crock and insult to the rule of law, as well as to the judges to which these disingenuous arguments are addressed! 🤬🤮
While “third country removals” are possible for those granted withholding of removal or deferral of removal under the CAT, proper legal procedure and due process require that 1) the DHS seek to reopen the case for designation of a new country of removal (unless such alternative country was previously designated and named in the Immigraton Judge’s order), and 2) the respondent be given a reasonable opportunity to raise any protection claims relating to that country.
Christie Thompson Staff Writer The Marshall Project PHOTO: The Marshall ProjectHon. Sarah Burr Retired U.S. Immigration Judge Knightess of The Round Table Photo Source: Immigrant Justice Corps website
“These all have the same objective, which is to strip immigrants of their rights in court,” said former immigration judge Sarah Burr. “The idea that this would somehow speed up the process is ridiculous. It’s only going to slow it down.”
Burr said that forcing someone to appear in court without an attorney makes it a judge’s responsibility to ensure someone understands what is happening and can make decisions in their case. “That takes a long time,” she said. “You’re being put in an awkward position. You almost become a party instead of the judge.”
Disappeared: Pursuing Legal Return of the Wrongfully Deported Against the Political Backdrop of “Securitization.”
by Dr. Alicia Triche
Featured authority:
Noem v. Abrego Garcia, 604 U.S. ___, 145 S.Ct. 1017 (2025)
J.A.V. v. Trump, No. 1:25-cv-072, Order and Op. (S.D. Tex. May 1, 2025)
The legal authority to order return of a wrongfully deported individual is largely rooted in the concept of “nunc pro tunc,” an equitable remedy which allows that a “judgment or the decree may be entered retrospectively, as of a time when it should or might have been entered up.”[1] As the Second Circuit held in Edwards v. INS, nunc pro tunc authority is “a means of rectifying error” that “has a long and distinguished history in the field of immigration law.”[2] In fact, said authority is explicitly invoked in the very first headnote, in the very first reported immigration decision. 85 years ago, in Matter of L, the Attorney General invoked equitable power to back-date permission to enter for a trouble-making, but (at least according to the A.G.) ultimately deserving Yugoslavian. 1 I&N 1 (A.G. 1940).
Fast-forwarding into the modern era, nunc pro tunc authority has proved needed to address wrongful removals in numerous contexts. Since 1996, when IIRIRA[3] established that filing a petition for review “does not stay the removal of an alien pending the court’s decision…unless the court orders otherwise,”[4] removals that are later deemed wrongful have occurred at all stages of Court of Appeals proceedings. In such instances, including those where removal happened before a meritorious Stay was ultimately granted, attorneys have successfully sought the return of wrongfully deported petitioners.[5] Now, of course, the occurrence of illegal deportation has expanded outside of the context of individual appeals, catapulting the concept of its judicial correction into the mainstream of public consciousness.
When a court orders the government to attempt the return of a wrongfully deported individual during pending legal proceedings, it effectively rules that a stay of removal is merited nunc pro tunc; and, then, it simultaneously invokes an inherent equitable authority to restore the status quo. As the Supreme Court observed in 1996, in Peacock v. Thomas,[6]a federal court must have “inherent power to enforce its judgments,” lest its abilities become “entirely inadequate to the purposes for which it was conferred by the Constitution.” Although its precise contours are still fuzzy—and I must defer here to a braver soul to delve into the whole “facilitate” v/s “effectuate” arena—the Supreme Court has now definitively laid to rest any doubt that a Court has inherent authority to order tangible redress against wrongful deportation. In Noem v. Abrego Garcia, 604 U.S. ___, 145 S.Ct. 1017 (2025), the Court held that, because “removal to El Salvador” was “illegal,” the District Court “properly” required the Government to “facilitate” Abrego Garcia’s release from custody in El Salvador and to “ensure that his case is handled as it would have been had he not been improperly sent….”[7]
It now being crystal clear that courts possess power to order attempted return, it will be up to litigators to ask them to use it. May 6, 2025, Law360 reported that a Baltimore federal judge had rejected the government’s request to vacate her ruling ordering the return of a 20-year-old Venezuelan asylum-seeker who had been sent to CECOT under the Alien Enemies Act, despite being a member of a class action settlement agreement protecting unaccompanied minors.[8] In the opposite direction, on March 27, 2025, in an unpublished order, the Fifth Circuit Court of Appeals denied, without comment, a motion for a retroactive stay and order of return. The request had been made by a Central American man who was initially granted Torture Convention relief by a Louisiana Immigration Judge, but was deported before he could apply for a Stay of Removal.[9]
Of course, these are but two small anecdotes amidst a flowing sea of removals. This leads me to the point that the legal challenges I have referenced above are occurring in a highly political context: attempted “securitization.” Securitization is an international relations concept developed by a group sometimes referred to as the Copenhagen School. Under securitization, it is not the objective level of danger in a purported threat (in this case, “illegal immigrants”—or, really, just “immigrants”) that takes it into the discursive realm national security. Instead, it is the nature of the discourse that surrounds it. “The issue becomes a security issue”, the authors explain, “not necessarily because a real existential threat exists but because the issue is presented as such a threat.”[10]
Again, this process, through which a “speech act” creates a security issue, is referred to as “securitization”.[11] It a method through which government actors move an issue out of the frame of “normal politics”[12] in order to claim extraordinary powers. By invoking “security,” says Barry Buzan, “a state representative declares an emergency condition, thus claiming a right to use whatever means are necessary to block a threatening development.”[13] But securitization is only successful if it is accepted by a large enough portion of its audience. Since it is a speech act, it can also be resisted by speech—and, from the point of view of immigration litigators, that can mean continuing to assert the rule of law in court, including the presentation of legal arguments for the return of wrongfully deported persons.
When viewed through the illuminating lens of securitization, Judge Fernando Rodriguez, Jr.’s order in J.A.V. v. Trump is especially remarkable.[14] Throughout history, US courts have been exceedingly reticent to delve into the substantive boundaries of security-related issues, even where it involves purely legal questions. It is thus remarkable that a conservative judge, sitting in Brownsville, has deliberated the substantive definitions of “invasion” and “predatory incursion,” and held that the Executive has utilized the incorrect legal standard to invoke the Alien Enemies Act.[15] It is truly a Nixon-goes-to-China moment, and it is a reflection that securitization is not automatically successful just because it is attempted. This is what all proponents of the rule of law, including immigration litigators, must keep in mind, when facing a system under siege, in this extraordinary era.
[1]Mitchell v. Overman, 103 U.S. 62, 64–65 (1881).
[2]Edwards v. INS, 393 F.3d 299, 308–309 (2nd Cir. 2004).
[3] Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009 (1996).
[5]See, e.g., Herrera-Meza v. Sessions, No. 18-70117, Dkt. 17 (9th Cir. Sept. 18, 2018) (granting a late motion to reconsider a judicial stay denial and ordering individual’s return to restore status prior to deportation); W.G.A. v. Sessions, No. 16-4193, Dkt. 65 (7th Cir. Mar. 19, 2018) (granting stay that becomes effective on “reentry to the United States pending resolution of [the] petition for review”). The author thanks Trina Realmuto at the National Immigration Litigation Alliance for calling her attention to these orders.
[6] 516 U.S. 349, 356 (1996); see also Crowe v. Smith, 151 F.3d 217, 226 (5th Cir. 1998), citing Chambers v. NASCO, Inc., 501 U.S. 32, 42 (1991) (recognizing the existence of “implied power squeezed from the need to make the court function”; Nken v. Holder, 556 U.S. 418, 426 (2009) (“An appellate court’s power to hold an order in abeyance while it assesses the legality of the order has been described as ‘inherent,’ preserved in the grant of authority to federal courts to ‘issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law”.)
It was a “full house:” full of talent, energy, skills, and determination to fight for due process for all! Thanks to all who participated from across the nation. This year’s timely focus was on detention and bond.
I was honored to serve on this distinguished and congenial faculty. Kudos to “Dean” Rekha Sharma-Crawford for her leadership in putting everything together and making it happen! (All while winning two TROs against the DHS overreach in “real time.” Nothing like showing “applied practical scholarship” to inspire and motivate a student body!)
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
From Hon. “Sir Jeffrey” S. Chase:
Hi all: The Supreme Court issued its decision today in Monsalvo-Velazquez v. Bondi, in which our Round Table filed an amicus brief at the request of Petitioner’s counsel.
I’m happy to report that in a 5-4 decision written by Justice Gorsuch (attached), the Court agreed with the position that when the deadline for voluntary departure falls on a weekend or holiday, the period for VD extends to the next business day.
We had explained in our brief that this reading is consistent with long-settled practices in the immigration courts.
Congrats to all, and much thanks to attorneys Collin White and Scott Angstreich of the law firm of Kellogg Hansen for representing us on the brief..
For our new members, this is the fifth time that the Round Table has filed a brief in a winning Supreme Court case. The others are:
Niz-Chavez v. Garland, holding that the INA’s “stop time” rule for cancellation of removal may only be triggered by the filing of an NTA that is a single document, containing all the necessary information (this decision made many thousands eligible for cancellation of removal);
Nasrallah v. Barr, allowing CAT applicants to seek judicial review of factual challenges to a CAT order notwithstanding the limitations created by sections 1252(a)(2)(C) and (D) of the Act;
Wilkinson v. Garland, holding that hardship determinations in cancellation B cases are mixed questions of fact and law, and are therefore reviewable by circuit courts; and
Santos-Zacaria v. Garland, which held that where the BIA commits error in its decision, a respondent need not first seek reopening by the Board in order to exhaust its remedies before seeking judicial review.
The BIA’s use of wrong standard to deny life-saving relief really, really stinks! PHOTO: Wikipedia Commons
Excerpt:
This Circuit has long recognized the clearly erroneous standard, articulating it memorably as requiring the appellate body to find that the factual findings are “wrong with the force of a five-week-old, unrefrigerated dead fish.” Cox Enters., Inc. v. News-Journal Corp., 794 F.3d 1259, 1272 n.92 (11th Cir. 2015) (quoting Parts & Elec. Motors, Inc. v. Sterling Elec. Inc., 866 F.2d 228, 233 (7th Cir. 1988)). Rather than follow this approach, in the case at bar the Board instead treated the immigration judge’s findings like fresh sushi-grade tuna, ready to be cut and served as the BIA wished.
A Helping Hand.jpg Image depicts a child coming to the aid of another in need. Once we have climbed it is essential for the sake of humanity that we help others do the same. It is knowing that we all could use, and have used, a helping hand. Safiyyah Scoggins – PVisions1111 Creative Commons Attribution-Share Alike 4.0 White Nationalist Xenophobes have abandoned Traditional Judeo-Christian values in favor of neo-fascism.But, the rest of us should hold true to our “better angels.”
Hon. “Sir Jeffrey” Chase writes:
Hi all: Attached is our just-filed amicus brief in support of the Unaccompanied Children Program.
Once again, this was a real team effort. Major thanks to Ashley Tabaddor, for lending her expertise and powerful anecdotes on very short notice. Also thanks to Sue Roy, the eagle-eyed editing of Helen Sichel, and Denise Slavin for your contributions.
We never stand so tall as when we file an amicus brief to help unaccompanied children.
Hon. Jennie Giambastiani U.S. Immigration Judge (retired) Member, Round Table of Former Immigration Judges PHOTO: Linkedin
The Trump administration is stripping funding for legal representation from tens of thousands of children who are unaccompanied migrants in the United States, a move immigration lawyers warn violates their legal rights and will leave minors vulnerable to abuse.
“Picture yourself thrown into a detention center in a foreign country where you don’t speak the language, where you don’t understand that country’s complex legal system, only to be told that now you must fend for yourself, assert your rights and seek whatever protections that country might offer you,” Jennie Giambastiani, a retired immigration judge, said Tuesday during a call organized by the Amica Center for Immigrant Rights.
“Now picture yourself as a child in that situation,” she added.
Government-funded attorneys changed that dynamic, Giambastiani said, because they worked hard “to make sure that the children understood the proceedings and could present their claims in court.” Most unaccompanied children can’t afford to hire their own legal representation.
Without those lawyers, Giambastiani said separately, the immigration courts would be thrown into “chaos”: “The judge won’t have any sense that this child understands why [they’re] there in court.”
Thanks for speaking out for American justice, my friend and colleague! Expect more soon from our Round Table ⚔️🛡️ on this outrageous breach of due process, good government, and common sense!
Kansas City folks! It’s that time! The Annual Immigration Court Trial Advocacy College convenes in just over a month. Come play a witness and help train the next class of fearless immigration trial lawyers! Share with your networks please! 🙏🏽
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See you in Kansas City in April, along with my wonderful faculty friends and colleagues at the Annual Immigraton Court Trial Advocacy College. Never has effective advocacy been more important!
Wendy Young President, Kids In Need of Defense (“KIND”)
Reacting to this outrageous breach of the law and morality, Wendy Young, the President of Kids in Need of Defense (“KIND”) said:
“The administration’s devastating decision to strip vital legal services away from unaccompanied children runs counter to its stated desire to protect kids, some as young as toddlers, against trafficking, exploitation, and other abuses that make them easy prey for those who would do them harm. The critical legal programs eliminated today have long-standing bipartisan support from Congress, not only because they protect children from danger, but because they also improve efficiencies in the immigration system by ensuring legal counsel for unaccompanied children who otherwise must navigate a complex court proceeding alone. This includes facilitating private-sector pro bono legal services that KIND oversees with almost 900 law firms, corporations, law schools, and bar associations at no cost to the government. The value of these contributions from KIND’s pro bono partners is approximately $1 billion, a significant contribution at a time when the federal government is claiming to seek cost savings. Elimination of the services in this contract, which are mandated by law, makes it all but impossible for many unaccompanied children to appear for their immigration court hearings or otherwise remain in touch with immigration agencies. It severs key lines of communication and coordination between vulnerable unaccompanied children and the institutions in place to ensure their protection.
“While today’s development is unconscionable, Congress can act to restore these key protections. For years, bipartisan spending bills have dedicated resources to this important work. Doing so has never been more important than now. Congress has full authority on its own to remedy the crisis the administration’s actions will yield – authority it should exercise decisively. KIND calls upon the House of Representatives and Senate to work in a bipartisan fashion to mandate robust funding in the FY 2026 federal appropriations package to the Office of Refugee Resettlement for complete restoration of unaccompanied children’s legal services, including full legal representation. The safety of thousands of children depends on it.”
Many thanks to our wonderful pro bono friends at Akin Gump!
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration JudgesKnightess of the Round TableLeading the charge for due process! Adina Appelbaum Director, Immigration Impact Lab Amica Center for Immigrant Rights Charter Member, NDPA PHOTO: “30 Under 30” from Forbes
Professor Karen Musalo
