https://www.jeffreyschase.com/blog/2020/12/14/a-wish-list-for-2021

JEFFREY S. CHASE | OPINIONS/ANALYSIS ON IMMIGRATION LAW

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A Wish List for 2021

To use another sports analogy, we have entered the preseason of the Biden Administration.  As any sports fan knows, preseason (which generally starts five or six weeks before the real season begins) is a time for dreaming.  During preseason, every team is undefeated, and every fan is permitted to believe that this will finally be the year in which their suffering and loyalty are rewarded.

I’ve spoken to several law school classes this fall via Zoom.  One question I’ve been asked by students (both before and after the election) is what reforms I would like to see under the Biden Administration.  Although it seemed significantly more likely before November 3 that the Democrats would control both houses, I’ve stuck with the original list.  This is, after all, preseason, and I’m allowed to dream.

Just to be clear, Biden will be the 13th president to serve during my lifetime, and the seventh since beginning my career in immigration law.  I am well aware that most of the items on my list won’t happen; I wouldn’t be surprised if none come to pass.  Maybe I’ll continue that thought in a future blog; this one is devoted to dreaming.  That being said, some of the changes I hope to see are:

Safeguarding Asylum: In spite of numerous reminders from Article III courts that it is Congress, and not the Attorney General, that writes our laws, and that in enacting the 1980 Refugee Act, Congress intended to bring our asylum laws into accordance with our treaty law obligations, the Trump Administration showed shameless disregard for these facts, doing everything it could think of to upend Congressional intent by eliminating asylum eligibility to all who apply.  Ideally through statute, but if not possible, then at least through regulation, safeguards must be added making it absolutely clear to future administrations that asylum is meant to be a broad and flexible relief from any type of persecution creative persecutors may conceive; that the designated grounds required for such protection are to be interpreted broadly, and that persecution may be attributed to a government providing imperfect protection to its citizens.  It is important to note that none of these principles constitute changes to the law,  but simply shore up or repair long-existing principles following the storm of the past four years.

An Independent Immigration Court: It is time for the Immigration Courts to be moved out of the Department of Justice, and into independent Article I status.  We’ve seen over the past four years the worst-case scenario of what happens when an enforcement agency realizes that it controls the courts that exist to keep that same agency’s worst impulses in check.  Article I has been strongly endorsed by the American Bar Association, the Federal Bar Association, the American Immigration Lawyers Association, the National Association of Immigration Judges, and many other groups, including the Round Table of Former Immigration Judges.  Enacting this change is the only way the integrity and independence of the Immigration Courts can be safeguarded from future attack.

Government Appointed Counsel for Children in Removal Proceedings: This is a no-brainer.  In a case before the Ninth Circuit involving this issue, J.E.F.M. v. Lynch,  an amicus brief was filed by the states of Washington and California.  The brief began: “In this case, the federal government argues that an indigent child charged with removability in a federal immigration proceeding does not, as a matter of due process under the federal Constitution, have the right to be represented by appointed counsel at government expense….Such a position is at odds with principles of ordered liberty and due process.  It ignores the reality that indigent children are incapable of representing themselves in an adversarial immigration removal proceeding, let alone raising complex claims of due process or navigating federal administrative and appellate procedure.”  The brief continued: “An adversarial immigration system, which depends on the presentation of both sides of a case in a highly specialized area of law, demands that a child, standing alone, be represented by counsel.”  The brief was signed (in March 2016) by California’s then Attorney General, Kamala Harris.  Hopefully Vice President Harris will work to make this right a reality.

Eliminate Chevron Deference for BIA and Attorney General Decisions:  Last year, the Third Circuit, in a concurring opinion by Judge McKee in its decision in Quinteros v. Att’y Gen. (which all three judges on the panel joined), stated that “it is difficult for me to read this record and conclude that the Board was acting as anything other than an agency focused on ensuring Quinteros’ removal rather than as the neutral and fair tribunal it is expected to be. That criticism is harsh and I do not make it lightly.”  The court’s observation highlights the problem with according broad deference to those who use their decision-making authority for politically motivated ends.

In a blog post earlier this year, I highlighted three recent scholarly articles questioning the continued propriety of applying Chevron’s principles to decisions of the BIA concerning asylum, or to any decisions of the Attorney General.  I believe Article I status would resolve this problem, as decisions issued by an independent court outside of the executive branch would no longer constitute the interpretation of an executive branch agency covered by Chevron.  In the meantime, Congress and/or the Department of Justice should consider means of exempting such decisions from Chevron deference, and thus keep both the BIA and Attorney General honest in their efforts to reach neutral and fair results.

Create a “Charming Betsy” Reg Requiring Adherence to International Law:  Since 1804, the Supreme Court’s decision in Murray v. The Schooner Charming Betsy has required domestic statutes to be interpreted consistently with international law whenever possible.  As the Supreme Court in INS v. Cardoza-Fonseca observed that in enacting the 1980 Refugee Act, “one of Congress’ primary purposes was to bring United States refugee law into conformance with the 1967 United Nations Protocol Relating to the Status of Refugees,” it would seem that interpreters of our asylum laws should look to international law interpretations of that treaty for guidance.  Recent examples in which this has not been the case include the just-published “death to asylum” regulations that will completely gut the 1980 Refugee Act of any meaning; as well as regulations that bar asylum for conduct falling far, far short of the severity required to bar refugee protection under international law (which a federal district court blocked in Pangea v. Barr).

As the Board seems disinclined to listen to the Supreme Court on this point, it is hoped that the Biden Administration would codify the Charming Betsy doctrine in regulations, which should further require the BIA, Immigration Judges, and Asylum Officers to consider UNHCR interpretations of the various asylum provisions, and require adjudicators to provide compelling reasons for rejecting its guidance.

Eliminate or Curtail the Attorney General’s Certification Power: Until Article I becomes a reality, Congress must pass legislation that either eliminates or at least seriously limits the Attorney General’s certification power by removing the ability to rewrite established law on a whim.  At most, the Attorney General’s role should be limited to requesting the BIA to reconsider precedent in light of interceding Supreme Court or Circuit Court decisions, changes in law or regulations, or other legal developments that might materially impact the prior holding.  Furthermore, any right to certify must be limited to cases before the BIA, and to actual disputes between the parties arising in the proceedings below.

Revamp Immigration Judge Training:  This is more important than it might sound.  Conservative commentator Nolan Rappaport has commented on the inadequacy of Immigration Judge training, particularly where many recent appointees come to the bench with no prior immigration experience.  This problem predates the present administration.  Under Attorneys General Holder and Lynch, the BIA in particular was extremely resistant to exposing its judges and attorneys to views not considered part of the official party line.  During that period, I was amazed at how the BIA’s vice-chair (who continues to hold that position up to present) viewed respected immigration experts as the enemy, and employed a director of training and subject matter experts whose only qualification was their willingness to shield EOIR employees from outside sources.  This problem has worsened over the past four years.  A committee including not only those within EOIR, but also academics and members of the private bar should be formed to completely rethink the curriculum and resources available to judges and support staff.

Copyright 2020 Jeffrey S. Chase.  All rights reserved. Reprinted with permission.

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Jeffrey’s point on training is particularly well-taken. This has been a festering “below the radar screen” problem at EOIR for decades. 

Jeffrey’s analysis supports my call for the immediate end of the “EOIR Clown Show” and the replacement of EOIR Senior “Management” and the entire BIA with expert “practical scholars” from the NDPA. Indeed, one of the most grossly “underrepresented” groups in the current Immigration Judiciary are those who gained their expertise and courtroom knowledge as clinical professors! That group includes some of the finest legal minds I have run across in nearly 50 years of government, “big law,” and academic practice.

In my experience, EOIR training ranged from the “minimally adequate,” to the sadly comical, to the overtly insulting. In the latter category were the years we had no in person training and were sent a series of “mandatory videos.” Some were inaudible; others wrong or misleading; a few were actually reprises of BIA “staff brown bag lunches.” “Amateur Night at The Bijou” to be sure!

It was not that the resources weren’t available. We had among our ranks colleagues like Judge Dana Marks, one of the “Founding Mothers” of U.S. asylum law, who successfully argued the landmark Cardoza-Fonseca (“well-founded fear”) case before the Supreme Court as a private lawyer; and Board Member/Appellate Immigration Judge Lory D. Rosenberg, to my knowledge the only EOIR judge at any level whose legal analysis was favorably cited by name by the Supreme Court in the St. Cyr case (212(c) waiver retroactivity). 

Yet instead of getting insights and pointers from these and other luminaries of modern immigration and asylum law, we often were treated to government litigators telling us how to narrowly interpret asylum law or make denial decisions “easier to defend” in the Circuit Courts. One government prosecutor famously informed us that we weren’t really “judges” at all but simply “highly paid immigration inspectors working for the Attorney General.” 

Others told us that as “mere DOJ attorneys” we weren’t allowed to claim status as “administrative judges” for state bar purposes, even though by law we were barred from performing non-adjudicative legal functions. This is the kind of nonsense on which some of our limited “training time” was spent. Still others told us that although Congress had granted us statutory contempt authority, the Attorney General was withholding it because we shouldn’t be allowed to hold “other government attorneys” (that is, INS/DHS prosecutors) accountable for their conduct in our “courts” (which, clearly, these bureaucrats didn’t consider “courts” at all, except, perhaps, when arguing against judicial review by the Article IIIs).

Training is important! Many of the Circuit Court reversals highlighted in “Courtside” and on Jeffrey’s blog show grossly deficient understanding and application at both the trial and appellate levels of EOIR of the fundamentals of immigration and asylum law — things like standards of proof, considering all the evidence, judging credibility, and following Circuit and sometimes even BIA precedents favorable to respondents. 

This isn’t “rocket science!” They are the “x’s and o’s” of basic due process and fair immigration adjudication. Yet, all too often, EOIR “expert” tribunals (that really aren’t) come up short. Indeed very few members of today’s EOIR judiciary would be generally recognized as “experts” in the field based on their lifetime body of work. A sad, but true, commentary. But, one that can and must be changed by the Biden-Harris Administration!

The BIA should not only be reconstituted as an true “expert tribunal,” along the line of a Circuit Court of Appeals, but as a tribunal that teaches, instructs, and promotes best practices through its jurisprudence.

And, contrary to some of the restrictionist commentary that I continue to read, asylum law following Cardoza, Mogharrabi, the Refugee Act of 1980, and the U.N. Convention & Protocol from which it flows is neither intentionally narrow nor inherently restrictive. As indicated in Cardoza, it could and should properly be interpreted generously and humanely to grant life-saving protection wherever possible. The purpose of the Convention was to set forth legal minimums while inspiring greater protections along those lines. 

The “spirit of Cardoza and Mogharrabi” have long been lost, and now gleefully exorcised at the “EOIR Clown Show.” It’s past time for the appointment of competent, expert EOIR judges and administrators from the NDPA. Those who are intellectual leaders with moral courage who will insist on its long overdue restoration and fulfillment of this spirit!

Due Process Forever!

PWS

12-15-20