"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.
WASHINGTON — Attorney General William P. Barr sharply criticized on Monday the F.B.I.’s decision to open the Russia investigation, undercutting a major finding in a long-awaited watchdog report and at the same time showing his willingness to act as President Trump’s vocal defender.
The report, by the Justice Department’s inspector general, Michael E. Horowitz, found that the F.B.I. had adequate reason in 2016 to open an investigation into the Trump campaign’s ties with Russia. Mr. Horowitz broadly rejected Mr. Trump’s accusations that F.B.I. officials conspired to sabotage his campaign, but Mr. Barr highlighted findings that underscored his and the president’s shared view that investigators were nonetheless overly invasive in scrutinizing people associated with a presidential campaign.
“The inspector general’s report now makes clear that the F.B.I. launched an intrusive investigation of a U.S. presidential campaign on the thinnest of suspicions that, in my view, were insufficient to justify the steps taken,” Mr. Barr said in a statement.
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John H. Durham, a federal prosecutor whom Mr. Barr appointed to run a separate criminal investigation into the origins of the Russia investigation, backed Mr. Barr’s findings in his own highly unusual statement. “Last month, we advised the inspector general that we do not agree with some of the report’s conclusions as to predication and how the F.B.I. case was opened,” Mr. Durham said.Read the Inspector General’s Report on the Russia Investigation
The Justice Department’s inspector general released this report into the early stages of the F.B.I.’s Russia investigation.
The statements from the Justice Department’s top official and one of his key investigators gave Mr. Trump’s supporters ammunition to dispute one of the key findings in the long-awaited report by Mr. Horowitz that excoriated the F.B.I.’s handling of a wiretap application used in the early stages of its Russia investigation.
While the report was searing in its conclusion that the wiretap application process was marked with errors, it exonerated former bureau leaders of accusations by the president and his allies that Mr. Trump was the victim of a politicized conspiracy to sabotage his campaign and his presidency.
Mr. Horowitz concluded that the F.B.I. had sufficient evidence in July 2016 to lawfully open the investigation and to use informants. But he did note that the bureau’s standards were very low.
This is a developing story. Check back for updates.
Katie Benner covers the Justice Department. She was part of a team that won a Pulitzer Prize in 2018 for public service for reporting on workplace sexual harassment issues. @ktbenner
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Billy is desperately trying to put Jeff “Gonzo Apocalypto” Sessions and “John the Con” Mitchell in the rearview mirror in the race to be the worst Attorney General in U.S. history!
BETRAYAL OF AMERICA: What, On Earth, Are Trump’s Sycophantic GOP Defenders Talking About? — The Evidence Of Wrongdoing, Released By the WHITE HOUSE, Confirms The Whistleblower’s Complaint!
By Paul Wickham Schmidt
Exclusive for Immigrationcourtside.com
Sept. 26, 2109
Congressional Republicans continue to spout utter nonsense about the Whistleblower’s admitted lack of “first hand evidence” of Trump’s inappropriate conversations with the Ukrainian President that were both criminal and a threat to our national security.
But, the White House released a “transcript” that clearly shows that Trump improperly asked the Ukraine for a “favor” — to investigate political rival Joe Biden and his family in return for improved relations. Not the least among the latter was release of the Congressionally appropriated defense funding that Trump had put on hold and then lied about his reasons. His initial claim that funds were withheld out of a concern about “corruption” (this, from the most corrupt President in US history who recently closed bogus immigration “Safe Third Country Agreements” with the notoriously unsafe and blatantly corrupt Governments of the Northern Triangle) was later contradicted by an equally incredible claim that he was trying to get European Governments to pay their imaginary “fair share.”
The same transcript also shows Trump “pressing” the Ukrainian President about a fabricated right wing conspiracy theory relating to the non-existent Democratic Party “server” as well as making completely inappropriate and unethical references to Attorney General Barr and Trump’s personal attorney, Rudy Giuliani, in connection with investigating the Biden family. (In fact, Hunter Biden was cleared of wrongdoing by a previous Ukrainian investigation, and there have never been any credible allegations of wrongdoing by Joe Biden).
In other words, the heart of the Whistleblower complaint was confirmed by Trump’s own evidence of his own misconduct.
So, in this context, the lack of first-hand information is totally irrelevant. Trump himself has corroborated the Whistleblower’s major concerns.
That GOP sycophants keep raising irrevancies as bogus ”defenses” merely confirms what everyone outside ”Trumpworld” already knows: There is no defense for the President’s illegal and unethical conduct and the GOP’s continued support of this sleazy charlatan.
President Trump told a crowd of staff from the United States Mission to the United Nations on Thursday morning that he wants to know who provided information to a whistle-blowerabout his phone call with the president of Ukraine, saying that whoever did so was “close to a spy” and that “in the old days,” spies were dealt with differently.
The remark stunned people in the audience, according to a person briefed on what took place, who had notes of what the president said. Mr. Trump made the statement several minutes into his remarks before the group of about 50 mission employees and their families at the event intended to honor the mission. At the outset, he condemned the former Vice President Joseph R. Biden Jr.’s role in Ukraine at a time when his son Hunter Biden was on the board of a Ukrainian energy company.
Mr. Trump repeatedly referred to the whistle-blower and condemned the news media reporting on the complaint as “crooked.” He then said the whistle-blower never heard the call in question.
“I want to know who’s the person who gave the whistle-blower the information because that’s close to a spy,” Mr. Trump said. “You know what we used to do in the old days when we were smart with spies and treason, right? We used to handle it a little differently than we do now.”
“Over the past four months, more than half a dozen U.S. officials have informed me of various facts related to this effort,” the complaint stated. It described concerns that the president was using his phone call with the Ukrainian president for personal gain to fulfill a political vendetta.
Some in the crowd laughed, the person briefed on what took place said. The event was closed to reporters, and during his remarks, the president called the news media “scum” in addition to labeling them crooked.
The ambassador to the United Nations, Kelly Knight Craft, was in the room.
A White House spokesman did not immediately respond to a request for comment.
An intelligence whistle-blower law protects intelligence officials from reprisal — like losing their security clearance or being demoted or fired — as long as they follow a certain process for bringing allegations of wrongdoing to the attention of oversight authorities.
The whistle-blower followed that process — filing a complaint with the inspector general for the intelligence community. The Trump Justice Department later proclaimed that the information the whistle-blower put forward did not qualify under the intelligence whistle-blower law, raising the question of whether the official was still protected from reprisal. The acting director of national intelligence, Joseph Maguire, has said he would not permit the official to suffer retaliation, but the inspector general has pointed out that this personal assurance is not a legal shield.
Moreover, whistle-blower laws are aimed at channeling complaints to certain officials with oversight responsibilities — Congress, supervisors or inspectors general — and do not protect officials who provide information to other people without authorization. For that reason, these laws almost certainly do not protect the officials who told the whistle-blower about the call in the first place.
Mr. Trump spoke as the director of the Office of the Director of National Intelligence was testifying before Congress that the president had never asked for the identity of the whistle-blower, whose complaint was initially withheld from Congress by the Trump administration.
At a fund-raiser at Cipriani 42nd Street in Manhattan immediately after the United Nations event, Mr. Trump walked out before the crowd of several hundred donors clutching paper in one of his hands and said, “This is the call.” He then said it was “the greatest thing” to happen to the Republican Party because they had raised so much money off the controversy.
In a Twitter post later in the day, Mr. Trump referred again to the whistle-blower having “second hand information” and called the inquiry “Another Witch Hunt!”
Those of us who have been saying for some time now that Trump’s conduct makes him a “clear and present danger” to the continued existence of our nation have been proved right again. Not, of course, that it means that Trump, with lots of help from the GOP and complicit courts, won’t succeed in destroying American democracy. Democracy is “on the ropes” while Trump is still in office.
What would Thomas More, former Lord High Chancellor of England, say about Trump’s rhetoric? More was famously executed in 1535 for refusing to recognize Henry VIII as the head of the Church in England.
In a time where Trump, Barr, McAleenan, Mulvaney, Pence, Graham, McConnell, Pompeo, the majority of the Supremes, and many others illustrate the complete absence of integrity and ethics in Government, the “Whistleblower” reminds us that there still are are some persons of integrity left in our Government. Sadly, they appear to be an “endangered species.”
Voters have a chance to save our nation by throwing Trump and his GOP scoundrels out of office, at every level, in 2020. Whether they are “up to the task” or not remains to be seen.
The vast majority of Immigration Judges, DHS attorneys, Asylum Officers, and USCIS officers are professional and respectful. But what if they are not? What do you do then?
First off, I think it is important to understand that the bad officials are a small minority. I’ve been to many interviews and court hearings, and I’ve only ever made one complaint (against a USCIS officer at a Green Card interview). In other words, at least in my experience, government officials in immigration-world are generally pretty good.
Now admittedly, I am a lawyer and I know my clients’ rights and what to expect from “the system.” Pro se (unrepresented) applicants may not receive the same level of respect. They are easier to abuse, and it is more likely that decision-makers will cut corners in cases where the applicant is unable to protect herself.
That said, I am also involved in the BIA Pro Bono Project, where I review a dozen or so unrepresented appeals cases each month. I see the transcript of the Immigration Court case, and I can read how the Immigration Judge and the DHS attorney treated the applicant. While it is fairly common to see Judges and DHS attorneys moving quickly through a pro se hearing, it is also common to see these same officials taking extra time to ensure they are properly adjudicating the case. Once in a while, I see a case where the Judge steamrolled the proceedings to reach a quick decision, but that is the exception. In most cases, even those that were adjudicated quickly, the outcome seems fair, given the available evidence and testimony (one big caveat – many of these pro se cases are not well developed and are lacking in evidence. This is because the cases we review are for individuals who are detained. If these people had access to a lawyer and could better prepare their cases, many—even most—would achieve a better outcome).
The government takes your complaints very seriously.
While outright hostility and rule breaking seem quite rare, adjudicators can sometimes be testy, intimidating or unfriendly. What to do if you have the bad luck of encountering a hostile or impolite decision-maker?
The first thing to do is to remain calm. The demeanor of the decision-maker is often unrelated to the outcome of the case, and we have seen examples where an unfriendly officer issues a positive decision. Remember too that this person is not someone you will likely ever encounter again in your life. All you want from him is a favorable decision. Even if your experience at the interview is unpleasant or frightening, that won’t matter much if the case is granted. If you can keep your cool, answer all the questions, remain polite, and not lose your composure, you increase the likelihood of a good result. Getting angry, or arguing with the decision-maker is unlikely to get you the decision you want.
Second, make your record. This means, if you have something that you think is important to say, you should try to say it. In other words, don’t let an aggressive officer or judge intimidate you into silence. Court hearings and some USCIS interviews are recorded. Asylum Officers are supposed to write down everything you say (and if they do not write down what you say, you can complain to a supervisor). Even if you are ultimately prevented from saying something, if you indicate that you had something else to say, that exchange might be reviewed on appeal (or by a supervisor) and could result in a new trial or interview.
In making your record, you can be explicit. You can say to the judge or officer, “I think you are treating me unfairly because you are not allowing me to talk about X.” Say this politely and calmly, and it might soften the decision-maker’s stance. Say it aggressively, and you will likely harden the decision-maker’s position. I remember one case where the DHS attorney seemed (to me at least) to be taking a very aggressive position towards my asylum-seeker client. Finally, I simply asked (politely) why DHS was so opposed to asylum in the case. The attorney explained his motivation, which helped me better understand the case, and ultimately, the client received asylum.
Third, especially if you are unrepresented, you should write down what happened after the interview or court hearing. When things go wrong, it is important to try to understand what happened, and the more information you have, the better. If you write down what happened immediately, the information is more likely to be accurate. This will be useful if you later want someone else, like a lawyer, to review the case. It is also important if you need to make a formal complaint against the decision-maker.
Finally, if you feel you were subject to unfair treatment, you can make a complaint. Different forums have different procedures for complaining. For example, if you are with an Asylum Officer, you can ask to speak with a supervisor. You do this during the interview itself by telling the Asylum Officer that you would like to speak to a supervisor. For an Immigration Court case, you would typically contact the judge’s supervisor (called the Assistant Chief Immigration Judge) after the court hearing, or–more typically–you would just file an appeal to the Board of Immigration Appeals.
Periodically, I receive decisions that I think are wrong or unfair, but my clients have never been subject to treatment by an Asylum Officer or Judge that warranted a complaint. I did make a complaint once about a USCIS officer. I spoke to the officer’s supervisor immediately after the interview, and then sent a written complaint directly to the supervisor. I do not know whether the officer herself was informed of the complaint (I never saw her again), but I do know that my client’s case was approved in short order.
Most Immigration Judges and Asylum Officers are professional and respectful, and so hopefully, you will never encounter an official who is treating you unfairly. But if you do, keep calm, remain respectful, and politely make the points you need to make. This is the best way to maximize your chances for a positive decision.
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There is a systemic problem here that must be resolved before the current Immigration Court System can be expanded. It isn’t “rocket science.” A competent Administration interested in Due Process, efficiency, and the rule of law would:
Reduce detention of asylum seekers to a bare minimum;
Work with NGOs and the private bar toward universal representation of asylum seekers (which also means basically “universal appearance at hearings”);
Establish positive precedents to guide Immigration Judges & ICE Counsel to work with the private bar to grant more well-documented cases to implement the generous intent of the Refugee Act of 1980;
Ultimately, establish robust refugee programs in the areas of the Northern Triangle (thus making it unnecessary for folks to travel to the border to apply) and authorize and encourage Asylum Officers to grant more asylum, withholding of removal, and/or Convention Against Torture applications, thus eliminating the need to place so many cases where protection is clearly warranted into Immigration Court.
As long as we insist on dealing with a humanitarian refugee situation as a bogus “law enforcement” issue, we will continue to fail and actually divert resources from real law enforcement. Contrary to the false narrative pushed by DHS officials before Congress, increasing arrivals of “families with children” is not a law enforcement crisis, although the way this Administration approaches it does waste law enforcement resources.
An Administration truly interested in solving problems could initially process most of these individuals promptly and fairly at or near Ports of Entry, and then send those found to have a “credible fear” on to interior locations where they could work with attorneys to develop and present their claims in Immigration Court. Those legitimately found to be without credible fear would be subject to “Summary Removal” without going to Immigration Court.
The vast bulk of the 1.1 million cases in the largely “artificially created” and unnecessary Immigration Court backlog could be removed from the docket through a sensible exercise of prosecutorial discretion or processed for other forms of relief through USCIS. With a reduced docket, the Immigration Courts with 475 Immigration Judges (if allowed to operate independently, without idiotic quotas or other inappropriate and unethical political interference) should be able to fairly process arriving asylum applicants, detainees, other “priority criminal cases,” and recent arrivals without relief on a reasonable 12-18 month cycle.(Note that many in the latter category would be subject to “summary removal” without going to Immigration Court.) The Border Patrol and ICE Investigations could then focus on real law enforcement issues.
We can diminish ourselves as a nation; but, that won’t stop human migration.
COMPLAINT AGAINST CHIEF IMMIGRATION JUDGE FOR ORDERING JUDGES TO IGNORE FEDERAL LAWS PROTECTING CHILDREN
by Bryan Johnson on December 22, 2017
The following complaint was filed today against Chief Immigration Judge, MaryBeth Keller for ordering immigration judges to disregard special legal protections for unaccompanied children as mandated by 8 USC 1232(e):
Gotta believe that this one will get a quick coat of whitewash from EOIR, particularly since Chief Judge Keller’s “rise through the ranks” of the HQ bureaucracy was fueled, in part, by her role as the Assistant Chief Judge in charge of Judicial Conduct.
I always liked Chief Judge Keller, who once worked for me at the BIA. She’s a fundamentally decent person working for a bad guy (Jeff Sessions) and just trying to hang onto her job and limit the damage as best she can until she’s eligible to retire. I doubt that the “offending (and offensive) memo” was her idea. She was undoubtedly ordered to write it by Acting Director McHenry and his “handlers” at the DOJ. And, it certainly echoes Sessions’s clear bias against all immigrants, particularly young people of color. Remember the completely uncalled for “smear job” he did on “Dreamers” while gleefully announcing their planned demise as if it were some great achievement, rather than something of which we all should be ashamed?
Dreamers make our country better; Gonzo Apocalyto, not so much.
