"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.
In recent years, the [GOP’s] blind loyalty to Trump’s radicalism – especially his election lies – has caused it to even challenge the structure of democracy. A sense of national crisis and imminent political extinction, for example, ran through Trump’s rhetoric in the aftermath of the 2020 election, prompting some of his followers to use violence as a way of settling their political grievances on January 6, 2021.
Conservative Supreme Court decisions over the last two years have been especially hard for liberals to accept because they believe that the current majority is ill gotten.
The right’s dominance of the court happened in large part because then-Senate Majority Leader Mitch McConnell refused to even grant a confirmation hearing to Obama’s final pick for the top bench, Merrick Garland, who now serves as attorney general in the Biden administration. This allowed Trump to name Justice Neil Gorsuch as his first Supreme Court nominee in 2017. But McConnell later turned his back on his own questionable principle that Supreme Court nominees should not be elevated in an election year by rushing through the confirmation of Trump’s final pick, Amy Coney Barrett, in 2020 – which enshrined the current 6-3 conservative majority.
The move not only confirmed Trump’s status as a consequential president whose influence will be felt decades after he left office. It cemented McConnell among the ranks of the most significant Republican Party figures in decades and ensured conservative policies will endure even under Democratic presidencies and congressional majorities.
Recent revelations about questionable ethics practices by some of the conservative justices have further fueled fury about the legitimacy of the court among liberals.
But not all of the court’s recent decisions have infuriated the White House and Democrats. Earlier this week, for instance, liberals were hugely relieved when the court rejected a long-dormant legal theory that held that state courts and other state entities have a limited role in reviewing election rules established by state legislatures when it comes to federal elections. The so-called Independent State Legislature Theory, a favorite of the Trump campaign, had led to fears that Republican state legislatures in some states could simply decide how to allocate electoral votes regardless of results.
Still, the broad trajectory of the court – on issues including gun control, race, business, regulation, climate and many other issues – is firmly to the right.
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It’s no coincidence that the Trumpist far-right assault on democracy began during the 2016 campaign with unprovoked attacks on Mexican migrants and bogus claims about the border and immigration. It was skillfully, if corruptly, followed up with weaponization of the immigration bureaucracy and packing of the Immigration Courts by the likes of Miller, Sessions, Barr, and Cooch.
We have seen the GOP’s assault and dehumanization of migrants carry over into attacks on a wide range of disadvantaged groups in American society including African-Americans, Hispanic-Americans, Asian-Americans, Muslim-Americans, women, the LGBTQ+ community, and many others.
Although the Supremes have held that every “person” in the United States is entitled to due process under law, that concept is ludicrous as applied to the U.S. Immigration Courts, where anti-asylum, anti-immigrant, pro-DHS bias still drives much of the decision making, prosecutors appoint the judges and write the rules, the Government can change results that don’t match its political agenda, and individuals are on trial for their lives without a right to appointed counsel or many times even the ability to fully understand the proceedings against them. Predictably, the overwhelming number of individuals stuck in this abusive system are persons of color, many women and children!
This is “colorblind” American justice? Gimmie a break!
Although Dems acknowledged many of these outrageous defects in the Immigration Courts while campaigning for votes in 2020, once in power, they have shown little inclination to correct this unacceptable situation that undermines our democracy.
In particular, given a chance to reform the Immigration Courts, re-compete on a merit basis judicial positions filled under questionable procedures (at best) during the Trump Administration, bring in competent judicial administrators laser-focused on due process and best practices, and remake the Immigration Courts into a bastion of great progressive judging —driven by due process and equal protection, Garland and the Dems have whiffed. In that way they have largely followed the Obama Administration’s failure to take seriously due process for persons who happen to be in Immigration Court.
The failure of Dems to take immigrant justice seriously, and their inexcusable blown opportunity to reshape the Immigration Courts into a training and proving ground for the best and most qualified candidates for Article III judgeships ties directly into the anti-democracy shift in the Article IIIs and the GOP’s ability to carry out its right-wing agenda through a Supremes majority highly unrepresentative of Americans and our values.
An informed observer might well wonder “If the Dems are unwilling and unable to reform and improve the Federal Courts they do control — and apparently are ashamed of the progressive values they espouse — how will they ever counter the right’s anti-democracy agenda?”
Ron DeSantis Dave Grandlund PoliticalCartoons.com Republished under license Ron DeSantis and Donald Trump are “campaigning” on an agenda of racism, hate, and White Supremacist grievance not seen since the late Gov. George Wallace. Yet, mainstream media has largely “normalized” that which would have been unacceptable and unthinkable only a few years ago!Jamelle Bouie Columnist NY Times
The birthright citizenship clause of the 14th Amendment, based on similar language found in the Civil Rights Act of 1866, was a direct response to and a rebuke of [chief Justice] Taney’s reasoning [in Dred Scott]. Having won the argument on the battlefield, the United States would amend its Constitution to establish an inclusive and, in theory, egalitarian national citizenship.
The authors of the 14th Amendment knew exactly what they were doing. In a country that had already seen successive waves of mass immigration, they knew that birthright citizenship would extend beyond Black and white Americans to people of other hues and backgrounds. That was the point.
Asked by an opponent if the clause would “have the effect of naturalizing the children of Chinese and Gypsies born in this country,” Senator Lyman Trumbull, who helped draft the language of birthright citizenship in the Civil Rights Act, replied “Undoubtedly.” Senator John Conness of California said outright that he was “ready to accept the provision proposed in this constitutional amendment, that the children born here of Mongolian parents shall be declared by the Constitution of the United States to be entitled to civil rights and to equal protection before the law with others.”
In 1867, around the time Congress was debating and formulating the 14th Amendment, Frederick Douglass delivered a speech in Boston where he outlined his vision of a “composite nationality,” an America that stood as a beacon for all peoples, built on the foundation of an egalitarian republic. “I want a home here not only for the Negro, the mulatto and the Latin races; but I want the Asiatic to find a home here in the United States, and feel at home here, both for his sake and for ours,” Douglass said. “The outspread wings of the American Eagle are broad enough to shelter all who are likely to come.”
If birthright citizenship is the constitutional provision that makes a multiracial democracy of equals possible, then it is no wonder that it now lies in the cross hairs of men who lead a movement devoted to unraveling that particular vision of the American republic.
Embedded in birthright citizenship, in other words, is the potential for a freer, more equal America. For Donald Trump and Ron DeSantis, that appears to be the problem.
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Read the rest of Jamelle’s outstanding article and get the real story about the 14th Amendment. It has nothing to do with the racist lies and distortions spewed forth by Trump, DeSantis, and their fellow GOP white supremacists!
As we know, Congress has failed to address the realities of immigration since the enactment of IRCA in 1986. That has inevitably led to a large, disenfranchised population of undocumented residents — essential members of our society, yet deprived of political power and the ability to reach their full potential by their “status.” Consequently, they aresubject to exploitation.
Nevertheless, this phenomenon would be much more serious without the “genius of the 14th Amendment.” Notwithstanding the failure of the political branches to address immigration in a realistic manner, the overwhelming number of the “next generation” of that underground population are now full U.S. citizens with the ability to participate in our political system and otherwise assert their full rights in our society.
Thus, because of the 14th Amendment we have avoided the highly problematic phenomenon of generations of disenfranchised Americans, essentially “stateless individuals,” forced into an underground existence. It’s not that these individuals born in the U.S., who have known no other country, would be going anywhere else, by force or voluntarily. Nor would it be in our best interests to degrade, dehumanize, and exclude generations of our younger fellow citizens as Trump, DeSantis, and the GOP far right extremist crazies advocate.
Additionally, in contradiction of traditional GOP dogma about limited government, the Trump/DeSantis charade would spawn a huge new and powerful “citizenship determining bureaucracy” that almost certainly would work against the poor, vulnerable, and individuals of color in deciding who “belongs” and who doesn’t and what documentation suffices. How many adult American citizens today who have deceased parents could readily produce definitive documentation of their parents’ citizenship?
So, notwithstanding GOP intransigence, their vile and baseless attacks on the 14th Amendment, and the lack of political will to solve and harness the realities and power of human immigration, the 14th Amendment is at work daily, solving much of the problem for us and making us a better nation, sometimes in spite of our Government’s actions or inactions. And, it performs this essential service in a manner that is relatively transparent and minimally bureaucratic for most.
Trump & McConnell stuck a mob of these unqualified righty extremists on the lower Federal Courts. Even a super conservative Supremes might be tiring of the overt bias and lack of basic judicial competence exhibited by these judicial hacks. https://www.flickr.com/photos/rasputin243/ Creative Commons License
The Court’s decision in United States v. Texas was 8–1, with all eight justices in the majority concluding that Tipton didn’t even have jurisdiction to hear this case in the first place — though they split 5-3 on why Tipton lacked jurisdiction. Only Justice Samuel Alito, the Court’s most reliable Republican partisan, dissented.
The case concerned 2021 guidelines, issued by Secretary of Homeland Security Alejandro Mayorkas, that instructed ICE agents to prioritize enforcement efforts against undocumented or otherwise removable immigrants who “pose a threat to national security, public safety, and border security and thus threaten America’s well-being.”
Two red states, Texas and Louisiana, sued, essentially arguing that ICE must arrest more immigrants who do not fit these criteria. Moreover, because Texas federal courts often allow plaintiffs to choose which judge will hear their case by deciding to file their lawsuits in specific parts of the state, these two red states chose Tipton — a staunchly anti-immigrant judge who has been a thorn in the Biden administration’s side since the first week of his presidency — to hear this lawsuit.
In one of the most predictable events in the US judiciary’s history, Tipton promptly obliged the two states by striking down Mayorkas’s guidelines.
Justice Brett Kavanaugh’s opinion in Texas holds that no federal judge should have ever even considered this case. As Kavanaugh explains, the plaintiff states “have not cited any precedent, history, or tradition of courts ordering the Executive Branch to change its arrest or prosecution policies so that the Executive Branch makes more arrests or initiates more prosecutions.” To the contrary, the Court held in Linda R. S. v. Richard D. (1973) that “a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another.”
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That said, the decision does contain some language that anti-immigrant judges may latch onto to impose their preference on the country — including a paragraph that reads like it was written to preserve lawsuits challenging the Obama-era Deferred Action for Childhood Arrivals (DACA) program.
And there is one other very frustrating thing about this case. Although the Supreme Court eventually ruled that Tipton is not the head of ICE and cannot decide who its agents arrest, it rejected a request to temporarily block Tipton’s decision last July.
People talk frequently about forward and backward movement in one’s career, but less so about the gift of lateral moves. I have been lucky enough to make at least one facially “lateral” move that drastically changed the scope and reach of my immigration advocacy work: as the first Policy Counsel for Immigration at The Leadership Conference on Civil and Human Rights!
Through the work of incredible jacks-of-all-trades on staff like Rob Randhava, The Leadership Conference has played an integral role in a number of major moments in the immigration space and maintained an Immigration Task Force. The organization wanted to concretize this work by hiring a full-time staffer, and on the heels of my work at the UndocuBlack Network, I felt this role was the right fit. I grew up in a distinctly Jamaican household, visiting our home country most of my childhood summers, but I also sought a sterling education in the Black American experience.
One of my proudest moments at The Leadership Conference was also one of the most complex, challenging moments of my career—trying to connect the dots between seemingly disparate, painful topics to highlight the interconnectivity of our racial justice and immigrant justice movements. For me, the line between the so-called “Great Replacement Theory,” the targeting of Black Americans in Buffalo in May 2022, and the deleterious, disproportionate effects of Title 42 on Black asylum seekers couldn’t have been brighter. I felt The Leadership Conference was perfectly poised to connect those dots in a public way, by co-leading a sign-on letter to the Biden Administration. But I had to make my case with both internal and external partners with care and finesse, drawing on all of my education and experiences to guide me. No community wants to feel as though another community is opportunistically seizing a moment to elevate its interests while riding on the backs of others. I am proud to say that I persuaded a number of skeptics, many of whom were rightfully protective of their communities and civil rights legacies, to see the urgency of drawing these connections for those in power. Through this effort I was reminded that the work of connecting the Black diaspora is arduous, but can bear powerful fruit.
I’ve said it many times: There will be neither racial justice nor equal justice for all in America without justice for migrants!
Breanne obviously “gets it!” So do leaders like Cory Booker (D-NJ).
Sadly, however, many Democrats, including notable African-American leaders like President Barack Obama, Vice President Kamala Harris, AAG Civil Rights Kristen Clarke, and former AGs Eric Holder and Loretta Lynch don’t! They all blew or are squandering opportunities to make due process and equal justice for asylum seekers and other migrants a reality, rather than a hollow, unfulfilled promise!
In particular, the “intentional tone-deafness” of the Biden Administration on treatment of asylum seekers and other migrants of color has been astounding and shocking! Speaking out for justice for George Floyd and others while denying due process and the very humanity of Blacks and other people of color seeking legal asylum at the Southern Border is totally disingenuous and counterproductive!
Additionally, while there recently have been some improvements in merit-based selections by AG Garland, the U.S. Immigration Courts, including the BIA, are still glaringly unrepresentative of the communities affected by their decisions and the outstanding potential judicial talent that could and should be actively recruited from those communities. An anti-immigrant, pro-enforcement, uber-bureaucratic “culture” at EOIR, which metastasized during the Trump Administration, discouraged many well-qualified experts, advocates, and minorities from competing for positions at EOIR.
The inexplicable failure of Vice President Harris to establish herself as the “front person” to actively encourage and promote service in the Immigration Courts among minorities and women is highly perplexing. Additionally, the failure of the Biden Administration to recognize the potential of the Immigration Courts as a source of exceptionally-well-qualified, diverse, progressive, practical scholars for eventual Article III judicial appointments has been stunning!
Meanwhile, for an “upgrade” of the struggling EOIR, one couldn’t do better than Breanne Palmer: brilliant practical scholar, forceful advocate, courageous, creative innovator, and inspirational role model. As Breanne says on her website:
I try to live by one of Audre Lorde’s creeds:
“I am deliberate and afraid of nothing.”
Sure could use more of that intellectual and moral courage and “leadership by example” on the bench at EOIR! And, as I mentioned yesterday, there are or will be more judicial positions available at EOIR at both the appellate and trial levels. See, e.g., https://wp.me/p8eeJm-8KK.
Thanks Breanne for choosing to use your tremendous skills and abilities to further due process, equal justice for all, and racial justice in America. So proud of you!
I knew Michael as a friend, colleague, litigator, and sometimes worthy opponent from his days in law school until his untimely death in 2008! Michael’s wife, Candace Kattar, was actually a law student intern in the “Legacy INS” Office of General Counsel during the “Crosland/Schmidt Era” of the Carter Administration! Together they founded the highly-respected firm Maggio & Kattar.
Knowing both Michael and Hillary, I can’t think of a more deserving recipient for this prestigious honor. Congratulations, Hillary!!!😎👏
Melissa del Bosque reports for the Border Chronicle:
Both parties have doubled down on inhumane border policies, but it’s the GOP that is taking it to new depths in its race to the bottom over who can be more deliberately cruel.
It’s like some kind of grotesque Last Supper: In a publicity photo from last week’s press conference, Texas governor Greg Abbott is seated at the center of a long table surrounded by grim-faced White men, most of them elderly, in various postures of mental agita. Next to them is a large illustration on an easel board titled “Live Test of Attempt to Breach.” It shows a man with an inner tube (presumably an asylum seeker) clinging to a floating red buoy. Hundreds of these buoys Abbott announced, will be deployed on the Rio Grande near the town of Eagle Pass. The barrier will be 1,000 feet long, and its netting will extend underwater, catching anyone who tries to swim under it.
“We don’t want anyone to get hurt,” said Steve McCraw, head of Texas’s Department of Public Safety, at the June 9 press conference. “We want to prevent people from drowning.”
The floating buoy barrier will persuade people not to cross, he said. “This is to deter them from even coming in the water.”
But we already know this isn’t true. Both McCraw and Abbott were parroting the same strategy, known as “prevention through deterrence,” introduced in the mid-1990s during the Clinton administration. It has turned our southern border into a graveyard. After nearly three decades of militarized border buildup that has pushed people into increasingly deadly terrain like the Sonoran Desert, people haven’t stopped coming. But thousands of them have died.
As Todd [Miller] recently wrote in his poignant piece about this deadly strategy, “On the cusp of summer, we can predict like clockwork that hundreds of otherwise healthy people will be dead by summer’s end. It has an aura of premeditated murder.”
These floating barriers, which, according to the manufacturer’s website, can also be reinforced with spikes, will only contribute to an already-skyrocketing death count. Abbott’s latest announcement has already spurred many human rights organizations to sound a warning. Jenn Budd, a former Border Patrol agent and now border human rights activist, along with fellow Texas-based activist Marianna Treviño Wright, released a bilingual video warning migrants of the deadly new policy.
All-in on Fascism
Abbott has long toyed with the idea of running for president. While it increasingly looks less likely that he will, Florida governor Ron DeSantis has already joined the fray. And he’s all-in on fascism. When he’s not treating fellow human beings like FedEx packages, he’s modeling himself after Viktor Orbán, Hungary’s authoritarian leader, and darling of the CPAC circuit. Last week DeSantis released “B-roll” of Florida state troopers surveying the Texas-Mexico border as they participate in Abbott’s Operation Lone Star. I suspect they didn’t include any audio in the B-roll because it would humanize the children and adults waving to the troopers from the Mexican side of the river, detracting from DeSantis’s threatening narrative of an invading army.
DeSantis’s campaign video begins with a Texas DPS officer, who sports an official DPS seal on his tactical face covering, unlocking a tiny metal door surrounded by razor wire. This is next-level border security theater, as comical as it is utterly surreal and tragic. Several other Republican-led states are also, once again, sending troopers and National Guard soldiers to the Texas border—as they did before the 2022 midterm—to wage war against the Biden White House before the election. Unfortunately, it’s border communities and migrants who are caught in the crossfire.
For many years, I’ve documented border theater as it has ebbed and flowed depending on the political tide. But as I’ve been documenting in The Border Chronicle, we’ve reached an altogether different and deadly era of disinformation, with the GOP parroting invasion and great replacement rhetoric, and increasingly dehumanizing people, spurring mass shootings and political violence. This behavior is championed by a growing right-wing media ecosystem which in turn promotes more anti-democratic and extremist behavior.
I spoke with Sergio Muñoz, vice president of Media Matters for America, a nonprofit that has tracked conservative media for nearly two decades. I quoted Muñoz in a recent article, and wanted to include my full Q&A with him here. As Muñoz warns, the U.S. is in a “dangerous moment” as it approaches the 2024 presidential election.
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Read Melissa’s full report, including the interview with Sergio Muñoz at the above link.
Yes, “deterrence gimmicks” directed at refugees have a decades-long proven record of failure. You can just look at the efforts of the EU to “bar the door” to refugees from Africa and the Middle
East.
The boats continue to come, some sink, people drown. But, not surprisingly to those other than the “overprivileged and elitist White power class” like Abbott and DeSantis, desperate individuals forced from their homes are going continue to come — at any cost, even their own health, safety, and sometime lives.
Most would rather “risk it all” on a shot — even a very long shot — at stability and a real life, rather than facing the certainty of wasting away without hope, freedom, or opportunity and having to watch the same thing happening to younger generations. Some, against all odds, continue to believe that rich, powerfu Western countries like the U.S. will eventually live up to their solemn legal obligations to protect refugees and asylum seekers!
While, as Melissa cogently points out, these inane, yet deadly, gimmicks do kill migrants, they don’t do so at a high enough rate to materially affect the flow. It’s just causing pain, suffering, and sometimes death for their own perverted sake.
Apparently, neo-fascists like Abbott, DeSantis, Trump, and their “role model” Stephen Miller just “get off on” watching others suffer unnecessarily. Bullies and cowards often get a kick out of observing the effects of their handiwork.
Meanwhile, the public money being wasted on these cruel, yet ultimately ineffective stunts (remember former AZ Gov. Ducey’s shipping containers arrayed and then disassembled at government expense), could much, much better be spent on providing representation, organized resettlement, and humanitarian assistance to asylum seekers.
As Melissa says, the GOP’s (and sometimes, unfortunately the Dems’) “uber-enforcement/deterrence gimmicks are “as comical as [they are] utterly surreal and tragic.” It’s time for decent Americans to “just say no” to these horrible folks and their failed and deadly policies of dehumanization and degradation!
Ron DeSantis Dave Grandlund PoliticalCartoons.com Republished under license Ron DeSantis and Donald Trump are “campaigning” on an agenda of racism, hate, and White Supremacist grievance not seen since the late Gov. George Wallace. Yet, mainstream media has largely “normalized” that which would have been unacceptable and unthinkable only a few years ago!
Maine Voices: ‘Woke’ should not be a four-letter word
Being aware of how we have treated and still treat other people in our society is so important to our society’s evolving that it should be honored, not vilified.
It is frustrating to see the continuous redefining of words and terms by the extremist conservative element in our society and government. One of these terms is “woke.” According to Merriam-Webster, the definition is “aware of and actively attentive to important societal facts and issues.” I will add in the qualification as well: “especially issues of ABOUT THE AUTHOR
For my entire life I have strived to embrace this philosophy, trying to listen to and understand other opinions, beliefs and religions, whether they agreed with mine or not, understanding that one cannot fully comprehend a point of view without appreciating the counterpoint. This certainly requires personal evolution and maturity. Being aware of the true history of our country, of how we have treated and still treat other people in our society, is so important to our society’s evolving that it should be honored, not vilified.
The term “woke” has now been unjustly transformed into a negative term. Let that sink in: Attention to important facts and issues, the truth, is something to avoid and discredit. Somehow, this makes sense to a significant number of our political leaders and fellow Americans. It appears that what is most troubling for those who would see “woke” as a vile four-letter word is the qualification above, that it applies to “issues of racial and social justice.”
One of the tag lines for objecting to this thought is that it may cause someone to feel uncomfortable or criticized by being confronted with these historical facts. Personally, I strongly desire to know the truth. I am delighted – admittedly, shocked sometimes – by learning about the history we were never taught, which was suppressed to a large extent for so many years by those who perpetrated many injustices. The historical truth has never made me feel bad about myself. In fact, it is enlightening. It expands my understanding of how and why we have come to this place in our evolution. It shows me how to be better and more empathetic, and it suggests the path forward.
I believe I do understand why this can be so threatening and discomforting to so many. I believe that the truth is like a mirror to them. They see their own racist views, their distrust of anyone they perceive as being “different” as a significant threat. I feel so sad for them, since in my life, through being open to other races, ethnicities, religions and thoughts, I have learned so much and have been blessed with a much more beautiful world, life and friends.
It is extremely troubling to see elected officials, the leaders of our political parties, and fellow Americans embracing and endorsing this philosophy of derision, division and hateful rhetoric that has its roots in the cesspool of white supremacist thought. They are leading us into the abyss of an authoritarian kakistocracy, or government by the worst of us. We must all, every rational one of us, stand and reject this thinking. We must only, and always, embrace truth, the actual facts. These people should not be leading our wonderful country.
Don Bessey is an Air Force veteran of the Vietnam War and a resident of Old Orchard Beach.
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Well said, Don! Thanks for speaking out so forcefully!
Don’s views echo several previous postings from Courtside:
Walter Rhein: “When people say they are ‘anti-woke,’ I interrupt them and say ‘You mean ‘anti-black.’ They become enraged and act like they’re the victims (like racists always do).”https://wp.me/p8eeJm-8tJ
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As [Villanova University President] Father [Peter M.] Donohue said at yesterday’s celebration, “‘Woke’ means social justice!” https://wp.me/p8eeJm-8vF
Lindsay Toczylowski Executive Director, Immigrant Defenders “ I always tell the new immigration attorneys at Immigrant Defenders Law Center to never forget just how stacked against our clients the odds are in immigration court.“
Toczylowski is executive director of Immigrant Defenders Law Center, a nonprofit legal organization working along the U.S.-Mexico border and throughout Southern California, and lives in Los Angeles.
The lifting of Title 42 — the policy that shut down the U.S. asylum system for three years — should have been an inflection point leading to a more humane and orderly system for processing asylum seekers. Instead, the Biden administration doubled down on the politics of exclusion, introducing new restrictive measures, including an asylum ban, that keep asylum out of reach for those who need protection the most.
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When asylum seekers are finally able to ask for protection, they are often met not with compassion but with cruelty. Just days ago in San Ysidro, I saw mothers with children sleeping on dirt while in Customs and Border Protection custody, sharing one port-a-potty for more than 500 people. Good Samaritans handed out supplies because CBP did not provide sufficient food, water or medicine.
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President Biden has perpetuated these failed deterrence policies despite his campaign promises to restore humanity at our border. The administration has turned its back on asylum seekers. These are real people. They deserve our protection. They deserve to be safe.
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Read Lindsay’s complete op-ed at the link.
These cruel, unnecessary, cowardly, and illegal policies are a disgrace to America and an embarrassment to the Democratic Party!
You don’t have to be either an immigration expert or very smart to recognize that desperate individuals trying to turn themselves in to CBP agents at or near the border, to exercise their legal rights to seek protection, are NOT going to be a meaningful source of fentanyl smuggling. That trade is controlled by cartels who basically smuggle product through ports of entry in large quantities disguised as or mingled with legitimate commercial commerce.
Indeed, the preoccupation of CBP with improperly “deterring,” “discouraging,” and “punishing” legal asylum seekers not only empowers cartels, but significantly detracts from actual law enforcement against drug smugglers. And, the millions of dollars being misappropriated and wasted by Junkman and others on bogus National Guard deployments could much better and more appropriately be spent on humanitarian aid, coordinated, orderly resettlement programs for asylum seekers and asylees, and securing them legal representation to aid in the fair and timely processing of asylum claims.
However, the repetition of bogus and deliberately fabricated narratives like the “Junkman’s” latest wasteful stunt creates a “guilt by repetition” syndrome that feeds and enables the racist agenda of today’s GOP as well as the spineless “rollover” response of the Biden Administration, and, sadly, some other so-called Democrats.
This class will cover the constitutional and political framework for the U.S. Immigration System, enforcement and adjudication agencies, immigrants, nonimmigrants, removals and deportations, detention and bond, immigration hearings, judicial review, grounds for removal and inadmissibility, “crimmigration,” immigration reform, “Chevron” deference, refugee and asylum status and other international protections. It will also include analyzing major immigration cases like INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) (well-founded fear) and Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996) (female genital mutilation).
A bipartisan duo of Hispanic women Tuesday introduced the most robust immigration proposal to date this Congress, a significant collaborationas a new generation of lawmakers pushes for meaningful reform of the nation’s immigration systemafter decades of failed attempts.
For six months, Reps. Maria Elvira Salazar (R-Fla.) and Veronica Escobar (D-Tex.) have been quietly negotiating on key issues where Republican and Democrats have previously sought changes, while leaning on their lived experiences as lawmakers representing border districts with majority Hispanic constituencies.
The result is a roughly 500-page bill called the Dignity Act that, among other things, would provide billions of dollars for border security measures, create pathways to citizenship for some undocumented migrants already in the United States, update the legal immigration process, and establish “humanitarian campuses” on the U.S. border that would process asylum claims in 60 days.. . . . .
Salazar and Escobar were joined at a news conference Tuesday by four original co-sponsors who are all women: Reps. Hillary J. Scholten (D-Mich.), Kathy E. Manning (D-N.C.), Lori Chavez-DeRemer (R-Ore.) and Del. Jenniffer González-Colón (R-Puerto Rico.). Rep. Michael Lawler (N.Y.), a vulnerable Republican representing a Democratic-leaning district, signed onto the measure late Monday and also attended. Rep. Adriano Espaillat (D-N.Y.) also signed on Tuesday.
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The bill’s introduction comes after House Republicans passed a border security bill this month along party lines; House Republican leaders have said since last year that consideration of a large-scale immigrationoverhaul would not happen until a border security plan had passed the chamber.
Asked whether broad immigration legislation could be considered this year, Majority Leader Steve Scalise (R-La.) appeared to suggest last week that it would not happen until a border security plan is signed into law.
“We’ve got to first start with border security,” he said, before adding that it would mean getting such a bill to the president’s desk. “If we get that done, then you can start talking about the interior problems that exist.”
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“Nothing is off the table,” Salazar said when asked about the prospects of a discharge petition, a procedural effort that would allow them to bypass the regular pathway for a bill to reach the floor.
Escobar then responded, “All it takes to make this happen is 218 people in the House of Representatives saying that they’re ready for a real solution.”
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Read the complete article at the above link.
The myth that “border security” is unrelated to taking a more practical, humane, and realistic approach to migration generally shows how determined GOP leadership is NOT to address immigration problems in a fair and constructive manner and to “tune out” those interested in a potential bipartisan solution.
For those who don’t already know her, Rep. Hillary Scholten is, to my knowledge, the only EOIR attorney ever elected to Congress and has, therefore, seen how broken and in need of reform our system is at the “grass roots level.” So, her support of this measure is very significant.
Here’s a summary of the bill, known as “The Dignity Act of 2023:”
I haven’t seen the full text of the bill. But, from my perspective, the most disappointing aspect of this effort is the apparent failure to deal with the #1 most “solvable” and long, long overdue aspect of due process and fundamental fairness affecting immigration and the overall U.S. legal system: Creation of an independent, Article I U.S. Immigration Court focused solely on due process, fundamental fairness, and best practices!
Knightess of the Round Table — Somebody’s listening to our message! Too bad the Biden Administration doesn’t! It would save lots of time, resources, and lives if they did!
JUSTICE JACKSON delivered the opinion of the Court.
Under 8 U. S. C. §1252(d)(1), a noncitizen who seeks to challenge an order of removal in court must first exhaust certain administrative remedies. This case presents two questions regarding that statutory provision. For the rea- sons explained below, we hold that §1252(d)(1) is not juris- dictional. We hold further that a noncitizen need not re- quest discretionary forms of administrative review, like reconsideration of an unfavorable Board of Immigration Appeals determination, in order to satisfy §1252(d)(1)’s exhaustion requirement.1
. . . .
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Read the full opinion at the link.
So, why is a Dem Administration under AG Garland taking anti-immigrant positions that can’t even garner a single vote on the most far-right Supremes in recent history?
Incredibly, the DOJ made the absurdist argument that, in violation of the statute, an additional unnecessary layer of procedural BS should be inflicted on individuals already dealing with the trauma of a dysfunctional system running a 2 million plus backlog and a BIA with more than 80,000 un-adjudicated appeals at last count! Where’s the common sense? Where’s the competence? Where’s the “better government” that the Biden Administration promised?
Meanwhile, our Round Table continues to put our centuries of collective experience in due process, fundamental fairness, and practical problem solving to use! The Biden Administration might not be paying attention. But, many others, including Article III Judges, are taking advantage and listening.
Francesco Isgro, Esquire President & CEO of Casa Italiana Sociocultural Center, Inc. Editor-in-Chief, Voce Italiana PHOTO: LinkedinFrancesco Isgro
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Thanks for speaking out so forcefully and articulately for some of the most vulnerable among us, Francesco, my long-time friend and former DOJ colleague! Your own continuing distinguished career in both the public and now private/NGO sectors is a testament to the irreplaceable contributions of generations of immigrants to our great nation!
I’m proud to say that Francesco started as a legal intern in the “Legacy INS” Office of General Counsel during my tenure as Deputy General Counsel. He was then selected to become a INS Trial Attorney (now known as ICE Assistant Chief Counsel) under the Attorney General’s Honors Program. He eventually went on to a stellar career as a Senior Litigator, editor, and “hands on” educator at the Office of Immigration Litigation (“OIL”) in the DOJ’s Civil Division.
I specifically remember two of Francesco’s innovative contributions while in the INS OGC: collecting, indexing, and publishing the legal opinions of the General Counsel (and Deputy General Counsel); and creating a Law Bulletin that our office could use to inform the scores of field attorneys nationwide under our supervision and direction. This later led to vastly improved attorney training programs developed by OGC Counsel Craig Raynsford, assisted by Fran Mooney (who later went on to become the Public Information Officer for EOIR while I was BIA Chair).
I remember being a guest lecturer in Francesco’s immigration class while he was teaching at Georgetown Law. He also went on to found and become Editor-in-Chief of OIL’s Immigration Litigation Bulletin, a highly-respected internal source of information and guidance for USG attorneys involved in immigration.
My experiences on the bench during 13 years at the (now “legacy’) Arlington Immigration Court mirrored Francesco’s observations. Those whom we were able to help regularize their status under the law were overwhelmingly hard-working individuals making important contributions got our nation and our economy. Many had been doing it for years, sometimes even decades, and had USC children and even grandchildren who were “living proof” of the contributions of families who are given a chance to succeed.
Often, the “next generations” were present in court. I both congratulated them and asked them never to forget and appreciate the risks and hardships their parents had undertaken so that they could fulfill their complete promise in a free society! “Building America, one case at a time,” as I used to quip to the attorneys involved on both sides.
Francesco’s “Christian social justice message,” and his references to Pope Francis and the history of U.S. immigration also harken to a message I heard recently from Villanova University President Rev. Peter Donohue and Professor Michele Pistone during a recent educational event at Villanova Law. In his remarks, Rev. Donahue traced the founding of Villanova University to the response of Augustinian Friars to the burning of St. Augustine’s Church in downtown Philly during the Nativist Riots of 1844!
Professor Pistone credited Christian social justice teaching and the inspiration of Pope Francis for contributing to her success at the Villanova Immigration Clinic as well as the founding of the VIISTA Villanova Program to provide more well-qualified non-attorney accredited representatives to serve those in immigration proceedings. The VIISTA graduates whom I met and worked with on litigation skills over the two day seminar/celebration were totally impressive and dedicated.
Thanks again Francesco, for writing this inspiring piece setting forth fundamental truth about American immigration! That some in America shamefully and stubbornly refuse to recognize this truth doesn’t make it any less true, nor does it lessen the necessity to act upon it in moving our nation and our world forward toward a better future.
AILA is pleased to welcome this blog post from long-time AILA member Careen Shannon, Senior Counsel (formerly Partner) at Fragomen, Del Rey, Bernsen & Loewy, LLP, and the Executive Producer of an important new documentary, “Las Abogadas: Attorneys on the Front Lines of the Migrant Crisis.” AILA members in town for the Spring Conference have a chance to see “Las Abogadas” at the Washington, DC International Film Festival on Wednesday, April 26, at 6:00 p.m., with a second show on Friday, April 28, at 8:30 p.m.
When my friend Rebecca Eichler told me that a documentary filmmaker was making a movie about her experience providing legal advice to members of a Central American migrant caravan as it made its way north through Mexico in 2018, I said, “That’s nice.” Later, when film production stalled due to the COVID-19 pandemic, she sent me a link to a trailer and encouraged me to take a look, and I promised to do so. But I was busy managing my remote work for the Fragomen law firm where I was then a partner, and I put all thoughts of the film aside.
Then one day, I watched the trailer, and I was hooked. Here was a story that needed to be told. It wasn’t just about Rebecca, but about tenacious lawyers – mostly women – who were dedicating their lives to defending the rights of asylum seekers, reuniting migrant families torn apart by the Trump administration’s cruel family separation policy, and fighting to uphold the rule of law at a time when the few existing safeguards for migrants seeking refuge from harm were being systematically dismantled.
I reached out to the film’s Director, Victoria Bruce, who I later learned only reluctantly took my call at Rebecca’s urging, since at that point she had run out of steam – and money – and was not sure she had it in her to complete the film. But we had a great conversation, we fed off of each other’s enthusiasm for the subject matter, and by the end of our talk she had invited me to sign on as the film’s Executive Producer.
Two years into the pandemic, I decided to step down as a partner at Fragomen and dedicate myself to ensuring that this important film got made. Fast forward to today, and Las Abogadas: Attorneys on the Front Lines of the Migrant Crisis is making the rounds of film festivals, winning awards, and garnering critical acclaim. Las Abogadas (which means “the women lawyers” in Spanish) follows a group of women immigration attorneys over a multi-year odyssey as the U.S. government under Trump upends every protection for those fleeing from persecution, violence and war. The film’s narrative continues into the first two years of the Biden administration, where great hope gives way to a despair my fellow AILA members undoubtedly share, that nothing fundamental had changed in U.S. immigration policy.
. . . .
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Read the complete article at the link.
“Nothing fundamentally has changed.” Rather than listening to, recruiting, partnering with, and following the advice of those on the “front lines” of defending individual rights, freedoms, and upholding American democracy, the Biden Administration disastrously turned immigration, human rights, and racial justice policies over to a bunch of “wonks” disconnected from the preventable human tragedies and mocking of the rule of law represented by Trump’s xenophobic, White Nationalist agenda.
Today, President Biden announced his candidacy for re-election in 2024. Part of his slogan is “protecting personal freedoms” from the GOP right-wing authoritarian, police state — bedrooms, bathrooms, classrooms, voting booths, more guns, MAGA-maniacs plan to invade and regulate every aspect of your life. But Biden’s miserable performance on immigrants’ rights and his Administration’s tone-deaf “dissing” of those like the heroes of “Las Abogadas,” suggests he will need more than a slogan to energize a critical, too often ignored,“core component” of the Dem base.
He could start by watching “Las Abogadas” along with VP Harris (who “took on” the “immigration portfolio,” and has been MIA since), his politicos, and his campaign staff and heeding the message. Social justice advocates are understandably skeptical about Biden’s promises. He needs actions that advance due process, the rule of law, and humane, robust, orderly processing of refugees and asylum seekers!
As the Trump debacle demonstrated, when immigrants’ rights disappear, all other individual and personal rights in America are in the far-right’s sights! It doesn’t take much imagination (except, perhaps, for some so-called “centrist” Dems) to see how the onslaught of anti-immigrant myths, rhetoric, and legislation by the GOP right has quickly shifted to hate bills targeting gays, transgender, women, Black History, teachers, voters, election officials, rational gun control, heck, even doctors, nurses, and established medical science!
Careen Shannon Senior Counsel (formerly Partner) Fragomen, Del Rey, Bernsen & Loewy, LLP Executive Producer “Las Abogadas: Attorneys on the Front Lines of the Migrant Crisis.” Photo: Think Immigration
Many congrats to Careen Shannon and everyone else involved in this tremendous project!
Kirkland & Ellis LLP and NIJC represent class action of people facing prolonged waits for permanent immigration protection following 2021 evacuation from Afghanistan.
Afghan people seeking asylum are suing the U.S. government over delays in processing their asylum applications, nearly two years after they first arrived in the United States as part of a U.S. operation to evacuate allies who faced threats of persecution as the Taliban retook power in Afghanistan.
The plaintiffs in Ahmed v. Department of Homeland Security include people who worked for U.S. agencies in Kabul, women’s rights advocates, a healthcare worker, a teacher, and a journalist. Their temporary immigration status in the United States is set to expire in less than five months. The complaint, filed in the U.S. District Court for the Northern District of California, challenges the failure of the Department of Homeland Security (DHS) and U.S. Citizenship and Immigration Services (USCIS) to adjudicate the asylum applications filed by seven plaintiffs, and thousands of other Afghan people resettled in the United States, within the 150-day deadline set by Congress.
The plaintiffs ask the court to order DHS and USCIS to decide all overdue Afghan asylum adjudications within 30 days and to abide by the 150-day deadline in the future.
Kirkland & Ellis LLP Litigation Partner Mike Williams, who is working on this pro bono case, said: “This is a case about broken promises and broken trust, but also about the United States breaking its own laws. That is why we are asking the Court to require the United States to keep its promises to these Afghan people seeking asylum. These asylum applicants are among the most vulnerable to come to our country, and they should not be in legal limbo.”
National Immigrant Justice Center Attorney Richard Caldarone, who is co-counsel in the case, said: “USCIS’s systematic failure to decide asylum applications for Afghan people in the timeline set by Congress is inexcusable. For thousands of people — particularly those who had to leave family behind in Afghanistan — USCIS’s delays compound the trauma of Taliban threats and violence. Afghan people were forced to flee their homes and their country because they worked for liberty, equality, and democracy; they deserve better.”
The plaintiffs came to the United States in August 2021 as part of the U.S. government’s Operation Allies Welcome, which allowed Afghan people who passed stringent security and background checks to resettle in the United States and receive two years of humanitarian parole while they applied for more permanent immigration status. Additionally, Congress passed legislation requiring DHS and USCIS to “expeditiously adjudicate” asylum applications within 150 days for Afghan people who were resettled under the operation.
But DHS and USCIS have adjudicated just 11 percent of the roughly 16,000 asylum applications filed by Afghan people evacuated to the United States. Thousands of applications have been pending well past the 150-day adjudication deadline, and many people will see their temporary parole status expire in August 2023. The safety of those who applied for asylum remains in limbo, and their spouses and children trapped in Afghanistan continue to live under constant threats of danger.
This appears to be yet more “low hanging fruit” that the Administration could have handled without litigation to force them to do their job! What a HUGE, INSANE, UNNECESSARY WASTE of time and precious resources for the Biden Administration to choose to be perpetually “at war” with human rights experts and NGOs who have the knowledge and energy to craft and implement better legal approaches to refugees, asylum, adjudications, and restoring “order at the border!”
The Biden Administration’s propensity to adopt really bad approaches to human rights, asylum, and due process, and to “boot even the easy ones,” leaves Casey scratching his head and asking, “Can’t anyone here play this game?” PHOTO: Rudi Reit Creative Commons
Indeed, forcing Afghan evacuees into a ridiculously backlogged asylum adjudication system when they should have been admitted as refugees was a poorly conceived process in the first place! We sure could have used the Ambassadorial-level U.S. Refugee Coordinator originally created by the Refugee Act of 1980 but eventually swallowed by an intransigent State Department bureaucracy that always resented the function and its intended independence!
DUE PROCESS DOESN’T LIVE HERE ANY MORE: WEAPONIZED IMMIGRATION COURTS ARE AMERICA’S STAR CHAMBERS
By
Paul Wickham Schmidt
Retired U.S. Immigration Judge
“Immigration 101”
Renaissance Institute
Notre Dame University of Maryland in Baltimore
April 18, 2023
I. INTRODUCTION
Good morning. Thank you so much for inviting me, and for coming out on this beautiful Spring day. It’s an honor to be here.
Today, I’m going to tell you the sad story of how our Immigration Courts, housed in an agency called the Executive Office for Immigration Review (acronym “EOIR” for you “Winnie The Pooh” fans) within the U.S. Department of Justice, went from being the “Jewel in the Crown” to becoming “America’s Star Chambers,” where due process and human dignity are trampled daily. I will intertwine EOIR’s saga with my own career. Because, in many ways, my history and EOIR’s are the same. But, there’s a larger story in here that I hope you will pick up and that will tie together much of what you will learn in class.
Now, this is when I used to give my comprehensive disclaimer providing “plausible deniability” for everyone in the Immigration Court System if I happened to say anything inconvenient or controversial. But, now that I’m retired, we can skip that part.
However, I do want to hold Professor Rabben, the Renaissance Institute, the University, your faculty, trustees, you, and anybody else of any importance whatsoever “harmless” for my remarks which are solely my own views. No party line, no bureaucratic doublespeak, no sugar coating, no BS. Just the truth, the whole truth, and nothing but the truth, as I see and have lived it for five decades.
Also, because today is Tuesday, and you are such a great audience, I’m giving you my famous, industry-best, absolute, unconditional, money-back guarantee that this talk will be completely free from computer-generated slides, power points, or any other type of distracting modern technology that might interfere with your total comprehension or listening enjoyment. In other words, I am your “power point.”
II. CAREER SUMMARY
I graduated in 1970 from Lawrence University a small liberal arts college in Appleton, Wisconsin, where I majored in history. My broad liberal arts education and the intensive writing and intellectual dialogue involved were the best possible preparation for all that followed.
I then attended the University of Wisconsin School of Law in Madison, Wisconsin, graduating in 1973. Go Badgers!
I began my legal career in 1973 as an Attorney Advisor at the Board of Immigration Appeals (“BIA”) at the U.S. Department of Justice (“DOJ”) under the Attorney General’s Honors Program. Admittedly, however, the BIA’s Executive Assistant culled my resume from the “Honors Program reject pile.”
At that time, before the creation of the Executive Office for Immigration Review – “EOIR” — the Board had only five members and nine staff attorneys, as compared to today’s cast of thousands. Among other things, I worked on the famous, or infamous, John Lennon case, which eventually was reversed by the Second Circuit Court of Appeals.[1]
The Chairman of the BIA at that time was the legendary “immigration guru” Maurice A. “Maury” Roberts. Chairman Roberts took me under this wing and shared his love of immigration law, his focus on sound scholarship, his affinity for clear, effective legal writing, and his humane sense of fairness and justice for the individuals coming before the BIA. A sense, I might add, that is conspicuously absent from today’s EOIR.
In 1976, I moved to the Office of General Counsel at the “Legacy” Immigration and Naturalization Service (“INS”). There, I worked for another legendary figure in immigration law, then General Counsel Sam Bernsen. Sam was a first-generation immigrant who started his career as a 17-year-old messenger at Ellis Island and worked his way to the top of the Civil Service ranks. Perhaps not incidentally, he was also a good friend of Chairman Roberts.
At that time, the Office of General Counsel was very small, with a staff of only three attorneys in addition to the General Counsel and his Deputy, another mentor and immigration guru, Ralph Farb. At one time, all three of us on the staff sat in the same office!
In 1978, Ralph was appointed to the BIA, and I succeeded him as Deputy General Counsel. I also served as the Acting General Counsel for several very lengthy periods in both the Carter and Reagan Administrations.
Not long after I arrived, the General Counsel position became political. The incoming Carter Administration encouraged Sam to retire, and he went on to become a name and Managing Partner of the Washington, D.C. office of the powerhouse immigration boutique Fragomen, Del Rey, and Bernsen. He was replaced by my good friend and former colleague, the late Judge David Crosland, who selected me as his Deputy. Dave was also the Acting Commissioner of Immigration during the second half of the Carter Administration, one of the periods when I was the Acting General Counsel.
The third General Counsel that I served under, during the Reagan Administration, was one of my most “unforgettable characters:” the late, great Maurice C. “Mike” Inman, Jr. He was known, not always affectionately, as “Iron Mike.” His management style was something of a cross between the famous coach of the Green Bay Packers, Vince Lombardi, and the fictional Mafia chieftain, Don Corleone.
Although we were totally different personalities, Mike and I made a good team, and we accomplished amazing things. It was more or less a “good cop, bad cop” routine, and I’ll let you guess who played which role.
Among other things, I worked on the Iranian Hostage Crisis, the Cuban Boatlift, the Refugee Act of 1980, the Immigration Reform and Control Act of 1986 (“IRCA”), the creation of the Office of Immigration Litigation (“OIL”), and establishing what has evolved into the modern Chief Counsel system at Department of Homeland Security (“DHS”).
I also worked on the creation of EOIR in 1983, which combined the Immigration Courts, which had previously been part of the INS, with the BIA to improve judicial independence. Interestingly, and perhaps ironically, the leadership and impetus for getting the Immigration Judges into a separate organization came from Mike and the late Al Nelson, who was then the Commissioner of Immigration. Prosecutors by position and litigators by trade, they saw the inherent conflicts and overall undesirability, from a due process and credibility standpoint, of having immigration enforcement and impartial court adjudication in the same division.
I find it disturbing that officials at today’s DOJ have actually recreated and aggravated many of the problems and glaring conflicts of interest that EOIR originally was created to overcome. Indeed, as I will discuss later, they have allowed the Immigration Courts to become “weaponized” as a tool of immigration enforcement.
For example, former Attorney General Jeff Sessions unethically and improperly referred to supposedly fair and impartial Immigration Judges as “in partnership” with DHS enforcement. A.G. Garland has done little to dispel this notion.
By the time I left in 1987, the General Counsel’s Office, largely as a result of the enactment of IRCA and new employer sanctions provisions, had dozens of attorneys, organized into divisions, and approximately 600 attorneys in the field program, the vast majority of whom had been hired during my tenure.
In 1987, I resigned from INS and joined Jones Day’s DC Office, a job that I got largely because of my wife Cathy and her “old girl network.” I eventually became a partner specializing in business immigration, multinational executives, and religious workers. Among my major legislative projects on behalf of our clients were the special religious worker provisions added to the law by the Immigration Act of 1990 and the “Special Immigrant Juvenile” provisions of the INA.
Following my time at Jones Day, I succeeded my former boss and mentor Sam Bernsen as the Managing Partner of the DC Office of Fragomen, Del Rey & Bernsen, the leading national immigration boutique, where I continued to concentrate on business immigration. Immigration is a small community; you need to be nice to everyone because you keep running into the same folks over and over again in your career. While at Fragomen, I also assisted the American Immigration Lawyers Association (“AILA”) on a number of projects and was an asylum adviser to the Lawyers’ Committee on Human Rights, now known as Human Rights First.
In 1995, then Attorney General Janet Reno appointed me Chairman of the BIA. Not surprisingly, the late Janet Reno was my favorite among all of the Attorneys General I worked under. I felt that she supported me personally, and she supported the concept of an independent judiciary, even though she didn’t always agree with our decisions and vice versa.
She was the only Attorney General who consistently came to our Investitures and Immigration Judge Conferences in person and mixed and mingled with the group. She had a saying “equal justice for all” that she worked into almost all of her speeches, and which I found quite inspirational.
She was also hands-down the funniest former Attorney General to appear on “Saturday Night Live,” doing her famous “Janet Reno Dance Party” routine with Will Farrell immediately following the end of her lengthy tenure at the DOJ. Can you imagine Jeff Sessions, Bill Barr, or Merrick Garland making live appearances on SNL, and laughing at themselves. Not likely!
Among other things, as Chair, I oversaw an expansion of the Board from the historical five members to more than 20 members, a more open selection system that gave some outside experts a chance to serve as appellate judges on the Board, the creation of a supervisory structure for the expanding staff, the establishment of a unified Clerk’s Office to process appeals, implementation of a true judicial format for published opinions, institution of bar coding for the tens of thousands of files, the establishment of a pro bono program to assist unrepresented respondents on appeal, the founding of the Virtual Law Library, electronic en banc voting and e-distribution of decisions to Immigration Judges, and the publication of the first BIA Practice Manual, which actually won a “Plain Language Award” from then Vice President Gore.
I also wrote the majority opinion in my favorite case, Matter of Kasinga, establishing for the first time that the practice of female genital mutilation (“FGM”) is “persecution” for asylum purposes.[2] The “losing” attorney in that case was none other than my good friend, then INS General Counsel David A. Martin, a famous emeritus immigration professor at University of Virginia Law, who personally argued before the Board.
In reality, however, by nominally “losing” the case, David actually won the war for both of us, and more important, for the cause of suffering women throughout the world. We really were on the same side in Kasinga — the side of protecting vulnerable women.
During my tenure as Chairman, then Chief Immigration Judge (now BIA Judge) Michael J. Creppy and I were founding members of the International Association of Refugee Law Judges (“IARLJ”). This organization, today headquartered in The Hague, promotes open dialogue and exchange of information among judges from many different countries adjudicating claims under the Geneva Convention on Refugees.
In 2001, under pressure from the incoming Bush Administration and new Attorney General John
Ashcroft, I stepped down as BIA Chairman, but remained as a Board Member until April 2003. At that time, Ashcroft, who was not a fan of my opinions, invited me to vacate the Board and finish my career at the Arlington Immigration Court, where I remained until my retirement on June 30, 2016.
So, I’m one of the few ever to become an Immigration Judge without applying for the job. Or, maybe my opinions, particularly the dissents, were my application and I just didn’t recognize it at the time. But, it turned out to be a great fit, and I truly enjoyed my time at the Arlington Court.
I have also taught at George Mason School of Law and at Georgetown Law where I am still an Adjunct Professor.
As a sitting judge, I encouraged meticulous preparation and advance consultation with the DHS Assistant Chief Counsel to stipulate or otherwise narrow issues. There currently are approximately two million pending cases in Immigration Court, a backlog that grows every day. Because of this overwhelming workload, efficiency and focusing on the disputed issues in court are particularly critical.
III. THE DUE PROCESS VISION
Now, let’s move on to the other topics: First, vision. The “EOIR Vision” once was: “Through teamwork and innovation, be the world’s best administrative tribunals, guaranteeing fairness and due process for all.” In one of my prior incarnations, I was part of the group that developed that now abandoned and disrespected vision statement. Perhaps not surprisingly given the timing, that vision echoed the late Janet Reno’s “equal justice for all” theme.
Sadly, the Immigration Court System has moved ever further away from that due process vision. Instead, years of neglect, misunderstanding, mismanagement, and misguided priorities imposed by the U.S. Department of Justice have created judicial chaos with an expanding backlog now at an astounding two million cases, continuing to grow, with no clear plan for resolving them in the foreseeable future. Indeed, former AG Sessions actually maliciously and intentionally tried to add a potential 300,000 previously closed cases to those already on the active docket.
There are now more pending cases in Immigration Court than in the entire U.S. District Court System. Notwithstanding the hiring of hundreds of new judges by the past two Administrations, most in the Trump Administration from the ranks of Government prosecutors, the backlog continues to grow by leaps and bounds.
The Government has added hundreds of thousands, of new cases to the Immigration Court docket, again without any transparent plan for completing those already pending cases consistent with due process and fairness. They have done this despite efforts by the Biden Administration to re-establish sensible enforcement priorities and prosecutorial discretion that were trashed by the Trump Administration.
Even under Attorney General Garland, inexcusably, the “flavor of the day” is haphazardly advanced before pending cases which, in turn, are “orbited” to the end of the years long line. This results in what I call “Aimless Docket Reshuffling” or “ADR, EOIR-style.”
Notably, and most troubling, the only things that aren’t “priorities” for any Administration are fairness and due process in the immigration hearing process which have clearly been “thrown from the train” as the deportation express hurtles down the track. The Due Process Clause of the U.S. Constitution – has become “the enemy” in today’s disgracefully dysfunctional Immigration Courts.
Nobody has been hit harder by this preventable disaster than asylum seekers, particularly scared women and children fleeing for their lives from the Northern Triangle of Central America. In Immigration Court, notwithstanding the life-or-death issues at stake, unlike criminal court there is no right to an appointed lawyer.
Individuals who can’t afford a lawyer must rely on practicing lawyers who donate their time or on nonprofit community organizations to find free or low-cost legal representation. Although the Government stubbornly resists the notion that all asylum seekers should be represented, studies show that represented asylum seekers are at least five times more likely to succeed than those who must represent themselves. For recently arrived women with children, the success differential is an astounding fourteen times![3]
Although the Biden Administration promised to do better, they actually are using somewhat improved technology to make matters worse for lawyers, mindlessly overbooking cases without advance consultation with counsel — sometimes simultaneously scheduling cases for the same attorney in different cities at the same time.
An Assistant Chief Judge for Training in the Obama Administration infamously claimed that he could teach immigration law to unrepresented toddlers appearing in Immigration Court. Issues concerning representation of so-called “vulnerable populations” continue to haunt our Court System. Even with Clinics and Non-Governmental Organizations pitching in, there simply are not enough free or low-cost lawyers available to handle the overwhelming need.
To make matters worse, Administrations of both parties engage in a number of legally questionable and morally reprehensible “gimmicks” and “schemes” to keep asylum applicants at the Southern Border from getting fair hearings in Immigration Court.
Whether it’s “dedicated dockets,” Remain in Mexico, abusive use of Title 42, family detention, child separation, invented “bars” to asylum, or forcing applicants stranded in dangerous conditions in Mexico to use failing technology to schedule appointments, the objective is to prevent asylum applicants from receiving due process. Instead, they are often wrongfully “orbited” back to Mexico, Guatemala, Haiti, Honduras, and El Salvador.
These are among the world’s most dangerous countries, some basically without functional governing systems. Once there, many suffer kidnapping, extortion, rape, torture, and even death at the hands of the same forces from which they originally fled.
It’s a total and intentional perversion of asylum law and American values. Worst of all, complicit Article III Courts, all the way up to the Supreme Court, regularly “tank” in their duties to protect asylum applicants’ legal and constitutional rights. Instead, they “go along to get along” or pretend not to see or understand the grotesque human tragedy that they have enabled.
Customs and Border Protection officials brag about how limiting or eliminating asylum protections helps solve “the problem” and “reduce the numbers” at our Southern Border. In their view, refugees seeking legal protections under our laws and international conventions are a “problem” and human lives are merely “numbers” to be “reduced.”
It’s part of a concerted effort to “dehumanize the other” and convert them to “non-persons” under the law. I call this “Dred Scottification” after the infamous pre-Civil War Supreme Court case that declared that Blacks were not “persons” under our Constitution, although I hardly originated this term.
Notwithstanding today’s legal, Constitutional, and human rights disaster, I, for one, still believe that with proper enlightened leadership and some guts the “EOIR vision” could be fulfilled.
IV. THE ROLE OF THE IMMIGRATION JUDGE
Changing subjects, to the role of the Immigration Judge: What’s it like to be an Immigration Judge? As an Immigration Judge, I was an administrative judge. I was not part of the Judicial Branch established under Article III of the Constitution.
The Attorney General, part of the Executive Branch, appointed me, and my authority was subject to her regulations. I might add that I also served at her pleasure, something that GOP Administrations “get,” but ineffectual Democratic Administrations, not so much. And, that has lots to do with the abysmal state of justice in the Immigration Courts under Garland.
We should all be concerned that the U.S. Immigration Court system, between 2017 and 2021, was totally under the control of Attorneys General Jeff Sessions and Bill Barr, who consistently took negative views of immigrants, both legal and undocumented. Both failed to recognize the many essential, positive contributions that immigrants make to our country. They were also unfailingly biased against migrants in Immigration Court and their attorneys, in their negative and unethical “precedents,” and in prosecutor-friendly, immigration experience light, criteria for appointing new Immigration Judges and Appellate Judges at the BIA.
Indeed, in February 2020, a group of more than 2,500 former DOJ officials from Administrations of both parties, including me and many of my colleagues from the Round Table of Former Immigration Judges, took the extraordinary step of publicly calling on Barr to resign for corruption and compromising the independent role of the DOJ.[6] Among other things, we “strongly condemn[ed] President Trump’s and Attorney General Barr’s interference in the fair administration of justice.” Certainly, that was reflected in his mishandling of the Immigration Courts and “weaponizing” them against migrants and their lawyers
The late Judge Terence T. Evans of the Seventh Circuit Court of Appeals offered one of the best descriptions of what it’s like to be an Immigration Judge:
Because 100 percent of asylum petitioners want to stay in this country, but less than 100 percent are entitled to asylum, an immigration judge must be alert to the fact that some petitioners will embellish their claims to increase their chances of success. On the other hand, an immigration judge must be sensitive to the suffering and fears of petitioners who are genuinely entitled to asylum in this country. A healthy balance of sympathy and skepticism is a job requirement for a good immigration judge. Attaining that balance is what makes the job of an immigration judge, in my view, excruciatingly difficult.[5]
My good friend and colleague, Judge Dana Leigh Marks of the San Francisco Immigration Court, who is the past President of the National Association of Immigration Judges, offers a somewhat pithier description: “[I]mmigration judges often feel asylum hearings are ‘like holding death penalty cases in traffic court.’”[7]
An actual practitioner before today’s dysfunctional Immigration Courts was even blunter in an interview appearing in Mother Jones, one of my favorite scholarly publications: “An [expletive deleted] disaster that is designed to fail.”[7]
Certainly, balance, Due Process, and fundamental fairness have been sacrificed in today’s Immigration Courts in favor of expediency and “weaponizing” the Immigration Courts as tools of DHS enforcement. In other words, they are now structured to be little more than a whistle-stop on the deportation express as the complicit Article IIIs look on.
Barr even took the extreme, unethical, step of moving to “decertify” the Immigration Judges union, the National Association of Immigration Judges (“NAIJ”), of which, for full disclosure, I am a retired member. Actually, I believe my appearance here today was arranged through Linda contacting the NAIJ!
One of the keys to the Immigration Judge’s job is supposed to be issuing scholarly, practical, well-written opinions in the most difficult cases. That ties directly into the job of the Immigration Court’s Judicial Law Clerks (“JLCs”) assisted by legal interns from local law schools. Obviously, however, quality and care took a back seat to “productivity” under the Trump Administration’s program of “dumbing down” the Immigration Courts — not by any means effectively countermanded under Garland. Indeed, the already-strained ratio of Immigration Judges to judicial law clerks has gotten much worse over the past few years.
V. RECLAIMING THE VISION
Our Immigration Courts are going through an existential crisis that threatens the very foundations of our American Justice System. Earlier, I told you about my dismay that the noble due process vision of our Immigration Courts has been derailed and trashed. What can be done to re-establish it?
First, and foremost, the Immigration Courts must return to the focus on due process as the one and only mission. We must end the improper use of our due process court system by political officials to advance enforcement priorities and/or send “don’t come” messages to asylum seekers.
Ultimately, that will take an independent Article I Immigration Court, which has been supported by groups such as the ABA, the FBA, and the NAIJ, and was introduced in the last Congress by Subcommittee Chair Zoe Lofgren (D-CA).
Indeed, in February 2020, a hearing on “The State of Judicial Independence and Due Process in U.S. Immigration Courts” took place before Chair Lofgren’s Subcommittee on Immigration and Citizenship. Our 50+ strong “Round Table of Former Immigration Judges” filed a written statement in support of Due Process and creation of an independent, Article I Court.
You can find it on my blog “Immigrationcourtside.com,” which, of course, I highly recommend for anyone trying to understand what’s really happening in immigration these days.[8] We also joined 53 other distinguished organizations and NGOs in writing to Congress urging them to establish an independent Immigration Court.[9]
But, Article I is still a future dream. In the meantime, there is no excuse for Garland’s failure to make needed personnel, structural, and “cultural” changes at EOIR to restore due process.
Second, there must be radical structural changes so that the Immigration Courts are organized and run like a real court system, not a highly bureaucratic, headquarters bloated, enforcement agency. This means that sitting Immigration Judges, like in all other court systems, must control their dockets.
We must end the practice of having often clueless administrators in Falls Church and political bureaucrats in Washington, D.C., none of whom are sitting judges responsible for daily court hearings, manipulate and rearrange local dockets in an attempt to achieve policy goals unrelated to fairness and due process for individuals coming before the Immigration Courts.
Additionally, the judicial hiring process over the past 22 years has failed to produce the necessary balance because judicial selectees from private sector backgrounds – particularly those with expertise in asylum and refugee law –have been so few and far between. Indeed, during the Obama Administration nearly 90% of the judicial appointments were from Government backgrounds.
In the Trump Administration, nearly 100% of judicial appointments by Attorney General Barr came from prosecutorial or other public sector backgrounds. A number of these conspicuously lacked expertise in immigration and human rights laws!
Garland has done better in bringing in expert practical scholars and even getting rid of a few of the most horribly unqualified judges. But, in an out-of-control system with more than 600 judges, and growing, it’s going to take more than this “nibbling around the edges” to restore due process.
Third, there must be a new administrative organization to serve the courts, much like the Administrative Office of the U.S. Courts. Currently, the unwieldy hiring process, inadequate courtroom space planning and acquisition, and unreliable, often-outdated technology are simply not up to the needs of a rapidly expanding court system.
EOIR basically has “institutionalized worst practices.” This includes limiting legitimate continuances and placing judges under “performance plans” designed to hustle cases through the system, with insufficient quality control, while producing “assembly line injustice.”
Fourth, I would repeal all of the so-called “Ashcroft & Barr reforms” at the BIA and put the BIA back on track to being a real appellate court, as the “Appellate Division” of a new independent Immigration Court. A properly comprised and well-functioning Appellate Division should transparently debate and decide important, potentially controversial, issues, publishing dissenting opinions when appropriate.
All Appellate Judges should be required to vote and take a public position on all important precedent decisions. The Appellate Division must also “rein in,” rather than encourage and enable, those Immigration Courts with asylum grant rates so incredibly low as to make it clear that the generous dictates of the Supreme Court in Cardoza-Fonseca[9] and the BIA itself in Mogharrabi[10] are not being followed.
Well over a decade has passed since Professors Andy Schoenholtz, Phil Shrag, and Jaya Ramji-Nogales published their seminal work Refugee Roulette, documenting the large disparities among Immigration Judges in asylum grant rates.[11] The BIA, the only body that can effectively establish and enforce due process within the Immigration Court system, has not adequately addressed this situation.
Indeed, among the still-serving Barr appointments to the BIA are Immigration Judges who deny asylum nearly 100% of the time and are the subject of complaints from the private bar and NGOs about bias, rudeness, and other unprofessional behavior. In other words, Barr implemented “worst practices and policies” at the BIA and in the Immigration Courts in an attempt to “snuff out” every remnant of fundamental fairness and due process for migrants. He and Sessions particularly targeted the most vulnerable asylum seekers and their families for unfair treatment.
Inexplicably, and outrageously, Garland has failed to “clean house” and bring in the necessary qualified experts to reshape the Immigration Courts in a due process image. In particular, Trump holdovers contain due to dominate the BIA and turn out lousy, anti-immigrant, anti-due process decisions, many of which are slammed by the Circuit Courts on review.
This is hardly “through teamwork and innovation being the world’s best administrative tribunals guaranteeing fairness and due process for all!” The sharp drop-off in Immigration Court asylum grant rates during the Trump Administration was impossible to justify in light of the generous standard for well-founded fear established by the Supreme Court in Cardoza-Fonseca and the BIA in Mogharrabi, the regulatory presumption of future fear arising out of past persecution that applies in many asylum cases,[14] and the simple fact that there has been no worldwide diminution in the conditions causing refugees to flee. Indeed, they have gotten worse, in many cases.
The BIA’s chronic inability or unwillingness to aggressively stand up for the due process rights of asylum seekers and to enforce the fair and generous standards required by American law have robbed our Immigration Court System of credibility and public support, as well as ruined the lives of many who were denied protection that should have been granted. We need an Appellate Division that functions like a Federal Appellate Court and whose overriding mission is to ensure that the due process vision of the Immigration Courts becomes a reality rather than a cruel, intentionally unfulfilled promise.
Fifth, and finally, the Immigration Courts need better public service now! Without it, the courts are condemned to “files in the aisles,” misplaced filings, lost exhibits, and exorbitant courier charges. The public receives a level of service disturbingly below that of any other major court system.
That gives the Immigration Courts an “amateur night at the Bijou” aura totally inconsistent with the dignity of the process and the critical importance of the mission. Yet, after two decades of largely wasted effort, EOIR has failed to produce and implement a coherent, professional, user friendly court management system.
VI. GETTING INVOLVED
Bleak as this picture is, there is some good news. There are hundreds of dedicated and courageous lawyers out there who are former JLCs, interns, my former students, and those who have practiced before the Immigration Courts.
They form the nucleus what I call the “New Due Process Army!” You can be members, and I hope you will.
Thanks to an innovative new online program called VIISTA Villanova, developed by my friend Professor Michele Pistone, retirees who are not lawyers can train to become accredited representatives of recognized nonprofit organizations and actually represent asylum seekers in Immigration Court. Check it out on the internet.
VII. CONCLUSION
In conclusion, in the process of describing my career, I have introduced you to one of America’s largest and most important, yet least understood and appreciated, court systems: The United States Immigration Court. Right now, it is, inexcusably, clearly and beyond any reasonable doubt America’s worst and most dysfunctional court system.
I have shared with you that court’s once-noble due process vision and how it has been viciously and cruelly trampled, first to advance a xenophobic, White Nationalist Qrestrictionist agenda and then because Garland has failed to do his duty.
I have also shared with you my ideas for effective court reform that would restore and elevate the due process vision.
My friends, both our Immigration Courts and our democratic republic are in a grave existential crisis. There are powerful and well-organized forces with a very dark, exclusive vision of America’s future: one that reverses generations of human progress and knowledge and actively promotes intolerance, misinformation, dehumanization, and deconstruction of our democratic institutions and fundamental human values.
It’s an intentionally “whitewashed” version of American history. One that denies the ingenuity, creativity, and forced labor of generations of African Americans who literally built our country! It disregards the courage, tenacity, skill, and strength of Asian Americans who built our Transcontinental Railroad and literally brought our nation together. And, of course, it dismisses the legions of Hispanic Americans who have been “making America great” since before “America was America,” with their culture, hard work, determination, and commitment to the “real” American dream, not the “whitewashed” version.
The future envisioned by these dark forces “x’es out” some of you in this room. Don’t let their darkness and willful ignorance be your future and that of generations to come.
Look around you at the real history and the real America. The future is ours! Don’t let the forces of darkness and a “past that never was” deny our destiny!
Now is the time to take a stand for Due Process, fundamental fairness, human rights, human dignity, and human decency! Join the New Due Process Army and fight to make equal justice under law and the constitutional and human rights of everyone a reality rather than an unfulfilled promise! Due process forever!
Thanks again for inviting me and for listening.
(04/19/23)
[1] Matter of Lennon, 15 I&N Dec. 9 (BIA 1974), rev’d Lennon v. INS, 527 F.2d 187 (2d Cir. 1975).
[2] Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996).
[4] “Immigration Director Calls for Overhaul of Broken System,” NBC Bay Area News, May 27, 2015, available online.
[5] Guchshenkov v. Ashcroft, 366 F.3d 554 (7th Cir. 2004) (Evans, J., concurring). [6] Hon. Thomas G. Snow, “The gut-wrenching life of an immigration judge,” USA Today, Dec. 12, 2106, available online at http://www.usatoday.com/story/opinion/2016/12/12/immigration-judge-gut-wrenching-decisions-column/95308118/
[7] Julia Preston, “Lawyers Back Creating New Immigration Courts,” NY Times, Feb. 6, 2010.
[15] See, e.g., Matter of Y-S-L-C-, 26 I&N Dec. 688 (BIA 2015) (denial of due process where IJ tried to bar the testimony of minor respondent by disqualifying him as an expert witness under the Federal Rules of Evidence). While the BIA finally stepped in with this precedent, the behavior of this Judge shows a system where some Judges have abandoned any discernable concept of “guaranteeing fairness and due process.” The BIA’s “permissive” attitude toward Judges who consistently deny nearly all asylum applications has allowed this to happen. Indeed the Washington Post recently carried a poignant story of a young immigration lawyer who was driven out of the practice by the negative attitudes and treatment by the Immigration Judges at the Atlanta Immigration Court. Harlan, Chico, “In an Immigration Court that nearly always says no, a lawyer’s spirit is broken,” Washington Post, Oct. 11, 2016, available online at https://www.washingtonpost.com/business/economy/in-an-immigration-court-that-nearly-always-says-no-a-lawyers-spirit-is-broken/2016/10/11/05f43a8e-8eee-11e6-a6a3-d50061aa9fae_story.html
How does this live up to the EOIR Vision of “through teamwork and innovation being the world’s best administrative tribunals guaranteeing fairness and due process for all?” Does this represent the best that American justice has to offer?
We need to keep challenging this mockery of justice from all angles until the system changes! Keep raising the EOIR farce with Dems at all levels — let them know that due process at EOIR is a “front burner” issue they can’t keep sweeping under the rug!
Help groups that are assisting individuals stuck in this bureaucratically-created “Hell on Earth.” The EOIR system “feeds” on (picks on) the unrepresented, uninformed, traumatized, and desperate! Help people get effective representation, win cases, save their lives, and bring systemic attention to the gross injustices being inflicted on a daily basis by this dysfunctional system!
The “powers that be” at DOJ and the White House have little interest in leading and institutionalizing due process and excellence in judging at EOIR. But, neither are they positioned to prevent it from taking hold and growing on its own. That’s particularly true because Immigration Judges with practical expertise, courtroom skills, and a commitment to enforcing and vindicating individual rights ultimately “move” dockets more efficiently, motivate others to work together toward the ends of justice, and create fewer problems and embarrassments.
Even the BIA can’t screw up cases they don’t get! At some point, even inept and largely tone-deaf Dem politicos and their bureaucratic minions start “warming” to proven solutions rather than recreating failures and flailing away with bone-headed “deterrence” gimmicks.
The BIA might eschew precedents favorable to individuals. But, thanks to litigation against EOIR by the NY Legal Assistance Group, unpublished decisions are more widely available now on the internet. Even at the IJ level, advocacy organizations have established online networks and banks of good decisions by Immigration Judges granting relief.
These recognize and credit outstanding, exemplary, courageous judicial performance in a way that EOIR never does. Perhaps more importantly, these “unheralded victories” provide “road maps” and inspire others! Also, every concrete example of how good judging and good lawyering, on both sides, can work at EOIR serves as a condemnation and rebuke of the Administration’s lack of concern about due process, fundamental fairness, and best practices at EOIR.
While the picture is undoubtedly ugly, we must keep “painting it” — with vivid colors — until complacent folks in the power structure (particularly tone-deaf Dems) can no longer look away, cover their eyes and ears, and deny the truth about the “third world” system they are disingenuously passing off as American “justice.”
The message is straightforward: Due process, fundamental fairness, and best practices work! For everyone! It’s past time for Garland and the rest of this Administration to “get their collective heads out of the sand” and start heeding and acting decisively on that truth!
Bury your head in the sand Sander van der Wel from Netherlands Creative Commons Attribution-Share Alike 2.0 It’s way past time for AG Merrick Garland and Biden politicos to change this highly ineffective approach to the EOIR due process disaster!
