"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.
As of December 31, 2023, only the first quarter of FY 2024, the Biden Administration had already initiated 696,400 cases at EOIR. That’s more than the highest FULL FY (12 mo.) of the Trump Administration, 2019, in which 694,771 cases were started.
Moreover, in FY 2023, Biden filed an astounding 1,485,769 cases, more than twice the number that Trump did in FY 2019. Biden’s numbers in FY 2023 topped Trump’s other three years (278,218; 356,034; 216,589) BY MULTIPLES. In fact, Biden instituted approximately as many Immigration Court cases in FY 2023 as Trump did in his entire FOUR YEARS and is on a path to greatly exceed his 2023 total in FY 2024!
So the Trump/GOP blather about Biden not enforcing immigration laws is complete BS!
Biden’s muscular immigration enforcement efforts give lie to the GOP’s “open borders” claims, a point seldom made by the “mainstream media.” But, such over the top enforcement is NOT necessarily good news for America.
Even with more Immigration Judges under Biden — going on 700 — the annual decision-making capacity at EOIR is somewhere between 350,000 to 550,000. So, the Immigration Courts will not come close to keeping up with the flow of incoming cases, let alone reducing the backlog that has now mushroomed to more than 3,000,000.
There is no apparent plan for controlling the EOIR backlog and improving the much-criticized quality of decisions, which disproportionately harms legal asylum seekers of color while often adding to the backlog when rejected on review. That makes the Administration’s institution of new cases on a level guaranteed to create additional backlog appear irresponsible.
Moreover, it hasn’t helped that Attorney General Garland ignored pleas from most experts to make EOIR reform one of his highest, ideally his highest, national priority. Nor has Congress paid much attention to the glaring, chronic dysfunction at EOIR, despite pending legislation to create an Article I Immigration Court!
Biden is following in the footsteps of his Dem predecessors Obama and Clinton. In their initial election campaigns they “played to their base” by criticizing harsh GOP enforcement policies and extolling the benefits of immigration. Once in office, however, they became convinced that their credibility, and perhaps manhood, depended on out-enforcing and “out-crueling” their GOP predecessors.
Of course, this naive approach never produces the apparently desired result: That the GOP will acknowledge that Dems are serious about enforcement and strike the long needed “grand bargain” on immigration reform.
Predictably, that always backfires. The GOP just keeps repeating their “open borders” big lies, and the mainstream media provide little, if any, critical analysis or pushback. As long as kids aren’t being proudly exhibited in cages, the “mainstreams” quickly lose interest in the suffering, dehumanization, and death piling up on both sides of the border and in the “New American Gulag” as a result of the disastrously (and predictably) failed “enforcement-only” approach.
What Biden’s effort to “out-Trump Trump” REALLY shows is that more enforcement and attempting to use anti-immigrant legal decisions and a hopelessly backlogged adjudication system that keeps legal asylum seekers waiting indefinitely with a significant chance of wrongful denial if and when they are reached as a “deterrent,” doesn’t work, and in fact never has worked!
What’s needed is actually painfully obvious: A balanced approach that combines a properly generous asylum adjudication system, more avenues for legal immigration (both permanent and temporary), and an independent, functioning, expert, due-process oriented Immigration Court with reasonable, targeted, humane enforcement. That’s a message that both parties and the mainstream media are ignoring, to our national detriment. Too many Americans seem to have forgotten that in the process of dehumanizing and demonizing “the other” we degrade ourselves.
Or, put another way, we can diminish ourselves as a nation, but it won’t stop human migration!
President Biden is asking Congress for $13.6 billion to fund border enforcement operations, a significant portion of which will go to Immigration and Customs Enforcement (ICE) to detain more immigrants. This strategy is reminiscent of President Trump’s administration, which also poured resources into ICE detention in 2018 and 2019, but that effort produced very little change in the number of ICE removals—the stated goal for both Trump and Biden.
. . . .
In fact, President Biden is proposing to increase ICE detention by only 9,000 beds, from the current 37,000 to 46,000. The federal government should detain and deport individuals who pose national security and public safety threats to the United States, but it should not spend taxpayer dollars on useless anti‐ immigrant theater. Moreover, the Department of Homeland Security’s Office for Civil Rights and Civil Liberties has found that ICE detention sites routinely mistreat their detainees in ways that are “barbaric,” and there is no reason to expose anyone unnecessarily to this type of treatment.
A more effective approach to address the border issue is to facilitate legal immigration: let people come legally. This approach has been demonstrated to work, would reduce government expenditures, and make the immigration process more orderly.
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Read David’s full article, with charts and data, at the above link.
As David points out, the“New American Gulag” is bad for our nation and humanity. Unhappily, though, it’s good for the corporations who run private prisons. They also provide jobs in out of the way places where migrants are stashed. And, they contribute money and lobby politicos of both parties. That’s why human rights lose out almost every time in the immigration debate.
Immigration enforcement is an “industry” where failure = success! The more detention, apprehension, and deportation fail, the greater demand there is by politicos for more of it!
You can bet that when the coming waves of “enhanced” repression and human rights violations predictably fail, there will be demands for even harsher and more expensive enforcement, imprisonment, and deportations to deadly places!
It’s a dangerous, degrading, wasteful cycle that America just can’t seem to break. There are too many interests that see the human and fiscal misery of the “Gulag” as a profit center or a political advantage and therefore are disinterested in what works or the common good.
Even some Dems find that joining the white nationalist bullies in degrading and dehumanizing migrants of color is a “better political strategy” than standing up for the human rights of those who can’t vote! Bully – The Noun Project icon from the Noun Project Date 18 December 2017 This file is made available under the Creative Commons CC0 1.0 Universal Public Domain Dedication
As my friend Dan Kowalski often says, “the cruelty is the point.” Dehumanization, degradation, and gratuitous abuse of migrants of color is both highly profitable and politically advantageous for those on the right. So much so, that often even Democrats and some so-called “liberals” are afraid to oppose it and find their best “strategy” is to align with or enable the playground bullies! After all, they figure, it’s “only migrants from s—-hole countries whose lives and humanity are at stake.” Nothing to be gained from defending vulnerable persons!
That’s something for human rights activists and progressives to remember when some of these same spineless folks pelt your inbox with requests for your hard-earned dollars and your vote to help them save democracy — a democracy that they and their GOP nativist buddies don’t really believe in or defend!
Another example of truth losing out: Despite irrefutable evidence to the contrary, a substantial majority of GOP voters believe Trump’s “stolen election” lies. https://www.poynter.org/fact-checking/2022/70-percent-republicans-falsely-believe-stolen-election-trump/. And, whether or not they actually believe Trump’s falsehoods, almost no GOP office-holders, at any level, have the guts to challenge his absurdist claims.
YOU can be on the team with these and other NDPA superheroes:
Paula Fitzgerald Executive Director AYUDALaura Trask Director of Development & Communications AYUDA
📣 Job alert! 📣 Ayuda is seeking an immigrant champion to become our next Director of Legal Programs and lead the continued expansion of our immigration legal services.
If you share our mission of creating a world in which immigrants thrive, take a look at the full job posting and apply now: https://lnkd.in/e_yypNsk
Ayuda is a 501 (c)(3) nonprofit organization dedicated to providing direct legal, social and language access services, education, and outreach to low-income immigrants in the Washington, DC metropolitan area. Since 1973, Ayuda has provided critical services on a wide range of issues, in the process acquiring nationally recognized expertise in several fields including immigration law, language access, domestic violence and human trafficking. Ayuda has office locations in Washington, DC, Silver Spring, MD and Fairfax, VA.
WHY DO YOU WANT THIS JOB?
Because, just like everyone at Ayuda, you believe:
• In seeing communities where all immigrants succeed and thrive in the United States.
• In the overall success of our organization and all our programs.
• That families should be healthy and safe from harm.
• That all people should have access to professional, honest, and ethical services, regardless of ability to pay or status in this country.
• That diversity and equality make this country better.
WHAT WILL THIS JOB ENTAIL?
• Ensure the delivery of client-centered, high-quality legal services across Ayuda’s offices in DC, Maryland, and Virginia.
• Provide supervision to Legal Managers, and other positions as needed.
• Provide strategic direction for the legal program within Ayuda and lead the team towards meeting goals and objectives.
• Maintain and develop consistent practices and policies across legal programs.
• Oversee financial management of grants for the legal program, including client trust accounts for the low-bono fee-based services.
• Manage legal program budget, including overseeing the overall annual budget as well as providing support and oversight to Managing Attorneys on individual legal grant budgets (preparation, revisions, etc).
• Provide oversight to managers and support to Grants and Finance staff for grant management, including grant reporting and grant applications.
• Manage Ayuda’s delivery of low-bono fee-based immigration legal services.
• Collaborate with Ayuda’s Social Services and Language Access programs to ensure the provision of holistic services.
• Represent Ayuda in meetings with prospective grantors and donors to support Ayuda’ s fundraising efforts.
• Stay informed about legal changes and help to communicate legal changes and their significance to staff.
• Support Communications & Development team by drafting external legal updates and supporting participation in media interviews by legal team.
• Represent Ayuda and its clients at local and regional stakeholder, coalition, and advocacy meetings.
• Participate in Ayuda’s efforts to bring about systemic change on behalf of our clients.
• Represent the legal program as a member of Ayuda’s Senior Management Team, supporting organizational management and strategic planning and implementation.
HOW DO YOU KNOW IF YOU CAN DO THIS JOB?
Eligibility: Must be legally able to work in the United States and maintain proper work authorization throughout employment. Must be able to meet the physical requirements of the position presented in a general office environment.
Education/Experience:
• J.D. or L.L.M. degree from an accredited law school and licensed and in good standing to practice law in any U.S. state or territory.
• 3+ years of experience providing legal services to low-income immigrants (immigration, domestic violence/family law and/or consumer law experience preferred but not required).
• 3+ years of supervisory experience.
• Program management and leadership experience required.
• Experience working with low-income immigrant survivors of domestic violence, sexual assault, human trafficking, child abuse/neglect or other forms of trauma.
Preferred Knowledge & Skills:
• Excellent written and verbal communications skills, flexibility, and good humor.
• Excellent judgment, calm demeanor even under pressure, strong work ethic, resourceful, and able to maintain confidentiality.
• Decisive, with ability to exercise independent judgment.
• Proven ability to develop and maintain and positive team environment and support staff morale and resilience.
• Ability to mentor, train and provide career path guidance to staff.
• Ability to work collaboratively in a team environment and to initiate and follow through on work independently.
• Excellent time management skills and ability to work in a fast-paced environment.
• Ability to adapt to changing priorities.
• Program evaluation and project management skills.
• Knowledge of a second language a plus, with Spanish language skills preferred (examples of other languages commonly spoken by Ayuda’s clients include Amharic, Arabic, Tagalog, French, and Portuguese).
SALARY AND BENEFITS:
The anticipated salary for this position is $125,000 – $140,000, depending on experience.
We are proud of the benefits we can offer that include:
• Platinum-level medical insurance plan 100% employer-paid.
• Pre-tax 401(k) with Employer match on first 3% of salary.
• Vacation Days: 21 days per year until year 3, 27 per year in years 3-7 and 33 days per year after 7 years employment. Employees begin with 3 days of vacation leave.
• New employees begin with 5 days of Health & Wellness (sick) leave and accrue an additional 5 hours per pay period plus emergency medical leave up to 12 weeks per year.
• 12 weeks paid parental leave/family leave.
• 24 days paid holidays and staff wellness days, including Winter Break the last week of the year.
• Job-related professional development fees (including annual state bar dues and professional memberships).
• Flexible work schedules.
This position is exempt for overtime purposes.
Employees with federal student loan debt may be eligible to apply for Public Service Loan Forgiveness through the Department of Education. For more information, go to https://myfedloan.org/borrowers/special-programs/pslf.
TO APPLY:
Please apply with resume and cover letter. Writing samples may be requested.
Applications will be considered on a rolling basis until the position is filled. If you have questions about this position, please reach out to us at HR@ayuda.com.
EQUAL OPPORTUNITY EMPLOYMENT STATEMENT:
Ayuda is an Equal Opportunity Employer. All qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, or protected veteran status and will not be discriminated against based on disability.
We believe that a diversity of experiences, opinions, and backgrounds is integral to achieving our mission and vision. We celebrate diversity and seek to leverage the passion, energy, and ideas of a culturally diverse team.
This is a spectacular chance to work with really dedicated professionals performing a meaningful mission to help migrants adapt, prosper, and obtain legal status in our DMV area while enriching and assisting our communities. It’s about working together to build a better America for everyone!
As I have mentioned before, I am a proud member of AYUDA’s Advisory Council. At our meeting held at AYUDA this week, I was surrounded by talented, dedicated folks, who, unlike the often biased and ill-informed politicos out to destroy our legal immigration framework, are committed to solving problems in a humane, creative, legal manner recognizing the humanity and talents of our migrant communities.
Among other things, I heard:
Busses continue to arrive in our area without warning and coordination from either the “sending states” or the Feds;
The overwhelming number of those arriving are forced migrants with strong asylum claims;
Many of the current arrivals are from Venezuela and Nicaragua, countries with repressive leftist dictatorships with established records of persecution and human rights abuses recognized and condemned by Administrations of both parties;
Many arrivals, because of language problems and haphazard Government processing, do not understand how the asylum system operates;
Through information sessions, AYUDA and other NGOs are filling an information gap left by poor Government performance;
Despite the monumental efforts of terrific pro bono lawyers from across the DMV area (more needed) there is neither rhyme nor reason to the handling of these cases at EOIR and the Asylum Office;
Some cases are expedited, some are placed on slow dockets;
There are no BIA precedents or useful guidance on the many recurring situations that should result in grants;
Different results on similar material facts are a continuing problem;
Delays and “Aimless Docket Reshuffling” by EOIR hinders pro bono representation.
These are the problems that Congress and the Administration could and should be solving! Instead, outrageously, they are focused on spreading dehumanizing myths and devising even more wasteful “enforcement only” gimmicks that are bound to fail and leave more devastation, trauma, and wasted opportunities in the wake! Human lives and human rights are neither “bargaining chips” nor “political props” in an election year!
Americans are being bombarded by false messages of hate, fear, resentment, and dehumanization directed at out immigrant communities. That’s a HUGE problem for our nation of immigrants’ future! Fight back by joining AYUDA and becoming part of the solution!
AYUDA and other NGOs offer a chance to be part of the solution, save lives, and stand against the disgraceful failure of our Government to honor our legal commitments to asylum seekers and other migrants. Be a champion of migrants who make our “nation of immigrants” really great!
🇺🇸 Due Process Forever!
PWS
01-19-24
⚠️ DISCLAIMER: The views expressed in this promotional recruiting message are mine and do not represent the position of AYUDA or any other entity!
States can’t use the federal courts to try to force the federal government to arrest and deport more people who are in the country illegally, the Supreme Court ruled Friday.
The 8-1 decision could cut down on a flood of lawsuits recent administrations have faced from state attorneys general and governors who disagree with Washington on immigration and crime policy.
The high court’s ruling found that Texas and Louisiana lacked standing to pursue litigation challenging immigration enforcement priorities established by President Joe Biden’s administration soon after he took office.
It’s the second decision in eight days in which the Supreme Court has rejected lawsuits from Texas on standing grounds. Last week, the court ruled that the state did not have standing to challenge a federal law that gives preferences to Native American families in the adoptions of Native children.
Six states are challenging the debt-relief plan, but it’s not clear if the states have suffered the sort of concrete harm that is typically necessary to challenge a policy in court. (In a separate case, two student-loan borrowers who oppose the plan are also suing. Their legal standing is also contested.)
In the immigration case, critics of the states’ approach said their claim of likely financial injury from unwarranted release of undocumented migrants was murky. But the court’s majority opinion written, by Justice Brett Kavanaugh, took a different tack and said the case was flawed because of a general principle against suits trying to force the executive branch to enforce the law against someone else.
“This Court has consistently recognized that federal courts are generally not the proper forum for resolving claims that the Executive Branch should make more arrests or bring more prosecutions,” Kavanaugh wrote, in an opinion joined by Chief Justice John Roberts and the court’s three liberals. “If the Court green-lighted this suit, we could anticipate complaints in future years about alleged Executive Branch under-enforcement of any similarly worded laws — whether they be drug laws, gun laws, obstruction of justice laws, or the like. We decline to start the Federal Judiciary down that uncharted path.”
I suppose whether you “like” or “hate” this decision depends on who is in power and what you think about them. As my friend and immigration commentator Nolan Rappaport told me, immigrants’ rights advocates might cheer this decision today, but will not be happy if Trump is elected and they can no longer team up with Democrat State AGs to challenge alleged abuses of prosecutorial authority by Trump’s Administration.
Recognizing Nolan’s point that the “sword cuts both ways,” I think this is the correct result. Perhaps, that’s because it’s a derivation of a long line of cases on prosecutorial discretion that we often successfully invoked during my time in the “Legacy INS” OGC. Also, it seems correct from a “separation of powers” standpoint.
One of the cases that the Court relied upon is Linda R. S. v. Richard D., 410 U. S. 614 (1973). Interestingly, that case, then relatively recently decided, was one of the many I cited in the July 15, 1976 opinion that I drafted for then General Counsel Sam Bernsen approving the INS’s use of prosecutorial discretion.See https://immigrationcourtside.com/wp-content/uploads/2018/02/Bernsen-Memo-service-exercise-pd.pdf.
The “Bernsen opinion” (FN 8) cited the various Lennon cases and made reference to Leon’s article in Interpreter Releases (1976) on the topic.
After five decades of working in the immigration field in different positions and different levels, I think it’s always interesting how things from my “early career” still have relevance today!
Indeed, although you wouldn’t know it from the mainstream media and the “alternate universe debate” now going on in Congress, the GOP claims of “open borders” and lack of immigration enforcement are total BS. In fact, the Biden Administration has far “out-deported” and “out-enforced” the Trump Administration. See, e.g., https://amsterdamnews.com/news/2024/01/03/deportation-numbers-under-biden-surpass-trumps-record/.
As experts and those who actually work with migrants at the border know, “enforcement only” doesn’t work at the border or anywhere else, although it does fuel political movements and powerful corporate interests. See, e.g., .https://open.substack.com/pub/theborderchronicle/p/prepare-yourselves-for-the-2024-border?r=1se78m&utm_medium=ios&utm_campaign=post. But, truth, rationality, humanity, expertise, and the rule of law are largely absent from today’s one-sided immigration discussions. That doesn’t bode well for the future of our nation or the world.
Rekha Sharma-Crawford ESQUIRE Partner and Co-Founder Sharma-Crawford Law Kansas City, KS
Rekha Sharma-Crawford writes:
Registration is now open for the 7th Annual Immigration Court Trial Advocacy College.
One-of-a-kind training designed to give attendees a one-of-a-kind experience. The picture below is of the late Judge John O’Malley teaching students at the trial college. He loved the college and taught each year-even while battling cancer. Having served years on the Bench in State Court, he joined the Kansas City Immigration Court in 2009. He became a believer in the power of trial advocacy training for immigration removal defense attorneys. He understood the need for this kind of training to transform immigration attorneys into trial lawyers who were fearless and zealous storytellers for their clients. Judge O’Malley will be missed this year, but I know he will be watching as the next set of students graduate and join the elite group of alums. Alums who are no longer afraid to stand up for justice, demand due process and help their client’s stories come to life in the courtroom. Join us this April.
Really looking forward to reuniting with my Round Table 🛡️⚔️ buddies Judge Lory Rosenberg and Judge Sue Roy and all of the other wonderful faculty who along with motivated students make this such a terrific experience!
MIAMI (AP) — Eight months after crossing the Rio Grande into the United States, a couple in their 20s sat in an immigration court in Miami with their three young children. Through an interpreter, they asked a judge to give them more time to find an attorney to file for asylum and not be deported back to Honduras, where gangs threatened them.
Judge Christina Martyak agreed to a three-month extension, referred Aarón Rodriguéz and Cindy Baneza to free legal aid provided by the Catholic Archdiocese of Miami in the same courthouse — and their case remains one of the unprecedented 3 million currently pending in immigration courts around the United States.
Fueled by record-breaking increases in migrants who seek asylum after being apprehended for crossing the border illegally, the court backlog has grown by more than 1 million over the last fiscal year and it’s now triple what it was in 2019, according to government data compiled by Syracuse University’s Transactional Records Access Clearinghouse.
Judges, attorneys and migrant advocates worry that’s rendering an already strained system unworkable, as it often takes several years to grant asylum-seekers a new stable life and to deport those with no right to remain in the country.
. . . .
Experts like retired judge Paul Schmidt, who also served as government immigration counsel while the last major reform was enacted nearly forty years ago, say the broken system can only be fixed with major policy changes. An example would be allowing most asylum cases to be solved administratively or through streamlined processes instead of litigated in courts.
“The situation has gotten progressively worse since the Obama administration, when it really started getting out of hand,” said Schmidt, who in 2016, his last year on the bench, was scheduling cases seven years out.
. . . .
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At the above link, read Giovanna’s excellent full article, based on interviews with those who actually are involved in trying to make this dysfunctional system function. Thanks, Giovanna, for shedding some light on the real, potentially solvable, “human rights crisis” enveloping and threatening the entire U.S. legal system. Contrary to “popular blather,” fulfilling our legal obligations to refugees is not primarily a “law enforcement” issue and won’t be solved by more border militarization and violations of individual rights of asylum seekers and other migrants!
There are lots of ways to start fixing this system!Gosh knows, most of them have been covered here on Courtside, sometimes several times, and they are all publicly available on the internet with just a few clicks. See, e.g.,
The “debate” on the Hill defines “legislative malpractice!” The voices of legal integrity, experience, and practicality aren’t being heard! Also, lots of great ideas from experts on fixing EOIR are stuffed in the “Biden Transition Team” files squirreled away in some basement cubbyhole at Garland’s DOJ.
But most politicos aren’t interested in listening to the experts, nor do they seem motivated to understand the real human problems at the border, in the broken Immigration Courts, and how many of the things they are considering will make the situation worse while empowering smugglers and cartels! Those are real human corpses piling up along the border, carried out of immigration prisons, being abused in Mexico, and floating in the river — mostly due to the brain-dead “enforcement only” policies now being given an overdose of steroids by congressional negotiators.
So, things just keep deteriorating. Many in the backlog who deserve a chance at a permanent place in our society, and the ability to contribute to their full abilities and potential, remain in limbo! That’s bad for them and for us as a society!
Paulina Vera President, Hispanic Bar Association of DC PHOTO: Linkedin
As I have mentioned before, I’m proud that Paulina is an alum of the Legacy Arlington Immigration Court Internship Program and a “charter member” of the NDPA!
For those of you who don’t know her, here’s Paulina’s “official bio” from the GW Law website:
Paulina Vera supervises GW Law Immigration Clinic students and provides legal representation to asylum-seekers and respondents facing deportation in Immigration Court. She is a Professorial Lecturer In Law and has taught Immigration Law I.
Ms. Vera previously served as the only Immigration Staff Attorney at the Maryland-based non-profit, CASA.
She is a double GW alumna. In 2015, Ms. Vera graduated from the George Washington University Law School. During law school, she was a student-attorney at the Immigration Clinic. In 2012, she graduated from GW with a Bachelor in Arts in International Affairs, concentrating on Latin American Studies and International Politics and a minor in Spanish Language and Literature.
Ms. Vera is involved in a number of professional organizations. She is the President-Elect of the Hispanic Bar Association of DC (HBA-DC), a scholar for the American Bar Association (ABA) YLD Leadership Academy, and a member of the inaugural Hispanic National Bar Association (HNBA) National Task Force on Hispanic Law Professors and Deans. She also serves as the Public Relations Director for the GW Latino Law Alumni Association (LLAA).
Ms. Vera has been recognized locally and nationally; she is the recipient of the GW Latinx Excellence Awards, Alma Award (2019), DC Courts Community Agency CORO Award (2019), Hispanic Bar Association of DC (HBA-DC) Rising Star Award (2019), and the Hispanic National Bar Association (HNBA) Top Lawyers Under 40 Award (2021).
Her passion project is managing an online community called Hermanas In The Law, where she features Latinas thinking about law school, Latina law students, and Latina lawyers. Ms. Vera is originally from Tucson, AZ and is the proud daughter of two immigrants.”
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You can also learn more about Paulina and her many accomplishments by clicking on her name in the “Courtside” sidebar!
Paulina is just the brilliant, honest, values-driven, charismatic leader that America needs for a better future!
I am featured in the attached “20 Stories for 20 Years” video for Waterwell’s 20th anniversary with Kristin Villanueva, the star of the play and film versions of “The Courtroom.”
Waterwell is the theater company co-founded by the actor Arian Moayed that has been a great advocate on behalf of immigrants.
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Congrats, my friend and Round Table colleague, to you and to Waterwell!👏
Come to think of it, “Sir Jeffrey” is a pretty good moniker for an actor, as well as a leading warrior of the Round Table!🛡️⚔️
And, certainly, Immigration Court is a continuing human drama. Some would say “Repertory Theater of the Absurd!”🎭🤯
One day in 2003, I got a call from an acquaintance — the mother of one of my daughter’s middle school classmates — who happened to be the Vice Dean of Cardozo Law School, part of Yeshiva University in New York City. She knew that I was a practicing immigration lawyer with a major immigration law firm, so she was wondering: would I be interested in teaching a course in Immigration Law at Cardozo?
It turned out that Leon Wildes, founder of the esteemed immigration law firm Wildes & Weinberg, PC, and most famous for his representation of John Lennon, had been teaching Immigration Law at Cardozo for many years. But at the age of 70, he was ready to slow down a bit, and teach only one semester per year instead of two semesters. I was asked if I would be willing to teach the class during the spring semester. Leon would continue to teach the fall semester course, as well as oversee an externship program through which he placed students for a semester with nonprofit legal services organizations representing immigrant clients.
I eagerly said yes, and was given the freedom to design my own syllabus and curriculum. I taught the basic doctrinal course in Immigration Law at Cardozo from 2004 through 2011. Then Leon decided to step down from teaching completely. His son, Michael Wildes, an esteemed immigration attorney in his own right, took over the class, and I segued into running the externship program, which I turned into a full-fledged field clinic with a weekly seminar where we did case rounds and focused on different substantive topics each week — both legal topics such as deportation or different visa types, and practice-oriented issues such as how to interview clients who have suffered severe trauma. I continued to run the Immigration Law Field Clinic at Cardozo Law School until 2015.
Now Leon Wildes has passed on, at the age of 90. He leaves behind an incredible legacy as one of the grand old men of the immigration bar. And that story about John Lennon? It’s worth reading.
Photo from the Wildes & Weinberg, PC website.
Because of Lennon’s affiliation with the Left and his ability to rally young people (during the first presidential election when 18- to 20-year-olds could vote), Richard Nixon considered Lennon to be a threat to his reelection in 1972 and wanted him deported. In defending Lennon against deportation, Leon Wildes — who was so conventional that he purportedly didn’t even know who John Lennon was before he took him on as a client — managed to uncover the then-secret practice (then called the “non-priority program”) within the then-Immigration and Naturalization Service (INS) of exercising prosecutorial discretion not to deport certain otherwise deportable individuals.
Wildes’ advocacy led John Lennon and Yoko Ono to succeed in their fight against deportation and enabled them to obtain permanent residence. Moreover, Wildes’ unmasking of the INS’s ability to exercise prosecutorial discretion paved the way for the Obama Administration to later create a policy allowing young people brought to the United States as children — the so-called “Dreamers” — to remain in the United States under the Deferred Action for Childhood Arrivals (DACA) program.
Read the story of Leon Wildes’ representation of John Lennon in his first-person account, “Not Just Any Immigration Case,” reprinted on the Wildes & Weinberg website from the Benjamin N. Cardozo School of Law Alumni Review.
RIP Leon Wildes. May his memory be a blessing
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
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Thanks, Careen! Lot’s of “good historical stuff” on the Lennon case on the Wildes & Weinberg PC website: https://www.wildeslaw.com/
I drafted the BIA decision in Lennon that was reversed by the late Chief Judge Irving Kaufman and the 2d Circuit. Leon argued the case before the BIA.
Another legend, the late Vinnie Schiano (who, according to my Round Table colleague and immigration historian Hon. “Sir Jeffrey” Chase, claimed to have been a co-inventor of the “Master Calendar”) argued for the “Legacy” INS.At that time, the BIA counted immigration “gurus” Chairman Maury Roberts and Louisa Wilson among its five members.
I ran into Leon at a number of AILA functions over the years. I think he was friendly with Maury Roberts and the late Sam Bernsen, two of my “mentors.”
Leon was a gentleman, scholar, and educator, widely respected by those in Government and private practice.
This guy’s ugly presence and vile racist views hang over the 2024 election campaign and Congressional negotiations. Why? Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com
Texas Governor Greg Abbott (R) says he has transported 95,000 migrants from the Texas border to New York, Washington, DC, and other cities. On New Year’s Eve, Abbott flew hundreds of migrants — including many children — to the Rockford airport in Illinois, 30 miles outside of Chicago. It was snowing upon their arrival, and some of the migrants had no coats or shoes. Others were wearing flip-flops. The migrants were then loaded onto buses chartered by Abbott and dropped off in various suburbs.
Abbott says that he is transporting migrants to “sanctuary cities” as punishment for the cities’ permissive policies. A “sanctuary city” is a derisive term used by the right to describe a city that chooses not to volunteer local law enforcement resources to assist federal immigration agents. But in this case, the issue is largely irrelevant. The overwhelming majority of people being used as pawns by Abbott are in the United States legally.
One approach to deterring migrants is ignoring human rights and making the ordeal as traumatic as possible. That appears to be Abbott’s strategy. But it is not the law.
The Refugee Act of 1980, which passed Congress unanimously, gives migrants inside the United States the right to claim asylum based on “a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” It was enacted “in part to make amends for the country’s shameful refusal to accept Jewish refugees during the Holocaust.”
Previously, most people seeking to cross the southern border of the United States came from Mexico. They were generally seeking seasonal work inside the United States and, therefore, sought to evade detection by U.S. Customs and Border Protection (CBP). But beginning in 2010, there was an influx of migrants from Central America fleeing gang violence, racial discrimination, and extreme poverty. More recently, political and economic disruption has prompted an increase in migrants from Venezuela, Cuba, Nicaragua, and Haiti. These new migrants are seeking legal asylum and want to present themselves to border agents — not evade them.
Migrants are being transported by Abbott to places where housing is expensive and in short supply. Most asylum-seekers would like to work to support their families, but the law does not allow them to receive a work permit for 180 days. Because of bureaucratic delays, asylum-seekers often wait a year or more before they are able to work legally.
Abbott also says his efforts are in protest of President Joe Biden’s “open border policies.” Biden has not opened the border. He did recently repeal Title 42, the Trump-era program that denied migrants the right to seek asylum, citing the public health emergency created by the COVID pandemic. Title 42 was legally questionable from the outset, but its continued use after other pandemic-related restrictions were lifted was indefensible. Title 42 also encouraged repeated border crossings. After Title 42 was imposed, “migrant encounters reported by CBP increased every month for 15 straight months.” Under Title 42, many migrants were deported immediately, and no record was created. This meant there was an incentive for migrants to attempt to cross the border again and again until they were successful.
Despite the rhetoric of Abbott and other prominent Republican officials, Biden has taken a hard line against migrants. Some advocates believe that Biden’s efforts to deter migrants from crossing the southern border have exceeded his legal authority.
The truth about Biden’s immigration policy
During his campaign for president in 2020, Biden vowed to undo Trump-era immigration policies. His promises included not building “another foot of wall” on the border and a pledge to stop using private prisons as immigration detention centers. On day one of his presidency, Biden proposed legislation “to restore humanity and American values to our immigration system.” His plan, known as the U.S. Citizenship Act of 2021, would have created pathways to citizenship for undocumented immigrants, increased assistance to Central America, and strengthened oversight and accountability of border operations.
The bill, however, died in Congress. Since then, Biden has only managed to make modest changes to immigration — like overruling Trump’s Muslim Ban and creating a task force to reunify separated migrant families. For the most part, experts say, Biden has continued many of Trump’s policy decisions.
Earlier this year, for example, Biden imposed new restrictive rules for asylum seekers who are not from Mexico. Dubbed by critics as the “Asylum Ban,” the rule assumes most migrants are ineligible for asylum and were similar to ones previously proposed (but never implemented) by Trump. In most cases, migrants will only be considered for asylum if they make an appointment in advance through a smart phone app, CBP One. There are far more people seeking asylum each day than appointments available through the app. In October 2023, the Biden administration announced that it was waiving 26 federal laws to construct up to 20 miles of the border wall in Texas.
A Washington Post analysis found that “nearly 18,000” family members were deported in fiscal year 2023 – about 3,000 more than were deported under Trump in fiscal year 2020. Since Biden took office, the number of migrants detained by ICE has also more than doubled. The majority of these people, the ACLU says, are held in private detention facilities. According to the group, the share of migrants detained in facilities “owned or operated by private prison corporations” has increased under Biden. In some instances, the administration has even kept open detention facilities “that its own oversight agencies have recommended for closure in light of abusive conditions and safety risks.”
Last month, immigration advocacy groups alleged in a federal complaint that officials have “forced asylum seekers to remain in CBP custody in open-air detention sites along the U.S.-Mexico border in California.” The group accuses CBP agents of forcing migrants to wait in “dangerous, exposed conditions” and “failing to provide the adequate food, water, sanitation, shelter, and medical care required under the law.” So far, at least one migrant has died while waiting outside.
Texas passes its own immigration law
On December 18, Abbott signed a law, Senate Bill 4 (SB 4), that will allow state law enforcement to arrest migrants in Texas. The new state law would make it illegal to cross into Texas from Mexico without using an official port of entry. This practice is already illegal under federal law. But now state law enforcement officers will be permitted to arrest individuals based on their suspected immigration status.
SB 4 includes exceptions for migrants in “public or private schools; churches and other places of worship; health care facilities; and facilities that provide forensic medical examinations to sexual assault survivors,” but does not protect those on college or university campuses. The law does not require that law enforcement officers complete any additional training on immigration law, “despite the fact it would authorize them to quickly make decisions about a person’s immigration status.”
Opponents argue that SB 4 is unconstitutional because the federal government, not Texas, is responsible for enforcing immigration laws. On December 28, the Justice Department sent a letter to Abbott stating that SB 4 “violates the United States Constitution.” Yesterday, the Justice Department filed a lawsuit against Texas and Abbott. The lawsuit states that “Texas cannot run its own immigration system” and that SB 4 “intrude[s] on the federal government’s exclusive authority to regulate the entry and removal of noncitizens, frustrate[s] the United States’ immigration operations and proceedings, and interfere[s] with U.S. foreign relations.”
In response to the December letter, Abbott posted on X, the platform formerly known as Twitter. “The Biden Admin. not only refuses to enforce current U.S. immigration laws, they now want to stop Texas from enforcing laws against illegal immigration,” Abbott said in the post. According to NBC 5 Dallas-Fort Worth, when signing SB 4 into law, Abbott said, “We think that Texas already has a constitutional [right] to do this but we also welcome a Supreme Court decision that would overturn the precedent set in the Arizona case.”
HISTORICAL NOTE: The article states that the Refugee Act of 1980 “passed Congress unanimously.” But, that isn’t completely accurate.
There was indeed very strong bipartisan support for that Act. It passed the Senate, 88-0.
A different version of the bill overwhelmingly passed the House, 328-47. Therefore, a Conference Committee was formed to resolve differences.
The Conference Committee report largely adopted the Senate version. The Conference bill unanimously passed the Senate again. But, the vote in the House was closer, 207-192, with 34 Representatives abstaining.
The above summary was reconstructed from the outstanding historical article by refugee guru Professors Deborah Anker and Michael Posner in the San Diego Law Review (1981) with an assist from my own recollection of events in which I long ago participated. https://digital.sandiego.edu/cgi/viewcontent.cgi?article=1735&context=sdlr.
Another helpful resource that I consulted is Ballotpedia.
The Popular Informationarticle reprinted above does very accurately set forth the lies, misinformation, and invidious intent behind the GOP’s attack on and attempt to dehumanize legal asylum seekers!
When a party has no issues, no accomplishments, and no plans for governing in a responsible way, “ginning up” hate, resentment, and “revenge” with lies, misrepresentations, and myths becomes a “strategy.” And somehow, the mainstream media largely falls for it.
Mary Meg McCarthy Executive Director National Immigrant Justice Center PHOTO: LinkedinA girl peers out from an encampment at the U.S.-Mexico border where she and several hundred people waited to present themselves to U.S. immigration to seek asylum. Politicos of both parties disgracefully treat the lives of asylum seekers as “collateral damage” and apparently expect no consequences from their deadly, inhumane, and often illegal actions against legal asylum seekers! / Photo by David Maung
Elected officials must act to prevent more migrant deaths
The United States has the resources to welcome new neighbors, but it is going to take cooperation, from the White House to the mayor’s office, to prevent further loss of life and improve safety for migrants.
By Letters to the Editor Dec 21, 2023, 3:32pm CST
It was heartbreaking to learn of the death of 5-year-old Jean Carlos Martinez Rivero, who had been living with his family at a privately contracted Chicago migrant shelter. This tragedy must be a wakeup call for all levels of government to start working together to protect people’s basic human rights at a time of increasing global humanitarian displacement.
For months, community members raised concerns about conditions inside the city’s shelters and volunteered to help better meet migrants’ basic needs. The accounts of life inside the shelter now coming to light are disturbingly similar to those that my colleagues at the National Immigrant Justice Center hear from clients held in immigration detention centers.
The city and the companies profiting from shelter contracts must be held accountable.
No doubt, the city has been forced to face the unprecedented challenge of welcoming thousands of new neighbors with minimal support from the federal government. The Biden administration and Congress must also be held accountable to repair the broken immigration system, support cities like Chicago that are welcoming migrants, and provide legal pathways so new arrivals have access to employment, secure housing and safety.
Jean Carlos’ death occurred at the same time the Biden administration and some U.S. senators are considering signing off on extreme anti-immigrant legislation in exchange for military aid for Ukraine and Israel.
The proposals under negotiation would create permanent new barriers to asylum protection and put U.S. immigrant communities at heightened risk of mass deportations. The proposals are structured to put Black, Brown and Indigenous communities at most risk.
Biden seems to have lost sight of his prior promises to defend immigrants’ rights, not to mention the U.S. government’s obligations to uphold international human rights law. Chicagoans should be holding our own Sens. Dick Durbin and Tammy Duckworth accountable to loudly oppose these proposals.
The United States has the resources to welcome new neighbors, but it is going to take cooperation at every level — from the White House to the mayor’s office — to prevent further loss of life and improve access to safety for migrant communities.
Mary Meg McCarthy, executive director, National Immigrant Justice Center
***********************
Unfortunately, accountability seems unlikely unless it happens at the ballot box.The GOP has become the party of inhumanity, irresponsibility, and immunity. And, although the Biden Administration and “wobbly” Dems tend to avoid overtly dehumanizing asylum seekers with their language, their actions and attitudes too often mirror those of Trump, Miller, and the GOP nativists. Indeed, quite disgustingly, politicos of both parties appear to expect to harvest political gains from the blood of migrants! 🤮
The Senate is basically engaging in “bipartisan” negations to knowingly and intentionally violate domestic and international protection laws, abrogate constitutional due process, and increase the number of unnecessary deaths of asylum seekers. That arrogant politicos, on both sides of the aisle, although primarily the GOP, openly advocate for such actions shows just how little fear of any type of accountability they have.
In many ways, that’s precisely the message that Trump and his MAGAmaniacs have been pushing — intentionally hateful and inflammatory language, followed by horrible, sometimes deadly, actions with little or no fear of any type of accountability.Sadly, the Dems seem to think that a program of cowardly acquiescence, rather than principled opposition, is the key to political success.
GW Law Immigration Clinic Director Professor Alberto Benítez & Co-Director Professor Paulina Vera
Friends,
My colleague Paulina Vera and I report our 2023 recap and we wish everyone a safe, prosperous, and happy 2024:
Hearings in Immigration Court: 5
Lives saved with grants of asylum: 9
Green cards obtained: 5
New U.S. citizens: 1
Oral arguments before the 4th Circuit: 1
Petitions for writ of certiorari filed at the US Supreme Court: 1
Countries represented: 13
In the spring our student-attorneys and interns wrote a comment to a federal regulation relating to asylum and hosted a public forum at the law school in which they described their comment and in the fall they organized a period products collection and distribution.
Reading* the news, it appears that many are freaking out about the “crisis” along the U.S. / Mexico border.
In fact, there is no crisis. Yes, there are logistical problems around feeding and housing migrants, and legal problems around sorting out their legal claims in immigration court.
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But the numbers are the numbers: “[T]he past decade has seen unusually slow growth in immigration. In fact, the period from 2012 to 2022 saw slower growth in the immigrant share of the population than the 2000s, 1990s, 1980s and 1970s. You have to go all the way back to the 1960s, when the immigrant population actually shrank, to find a lower growth rate.” – David J. Bier, Oct. 3, 2023
America is graying. We need more immigrants, not fewer, and the younger the better. “With the national unemployment rate reaching a historic low of 3.4% in 2023—and states like Massachusetts (2.5%) and Pennsylvania (3.5%) reaching record lows—employers and elected officials have been desperate to find new workers.” – Andrew Kreighbaum, Dec. 29, 2023.
But under current law, it can take many months, if ever, for migrants to obtain work permits. Meanwhile, they are forced to work for cash, under the table, exposed to horrible working conditions, sub-market wages and the continual threat of deportation. Once they have work permits, however, they gain bargaining power.
Hein de Haas, professor of sociology at the University of Amsterdam, and the author of How Migration Really Works, says: “Fundamental choices have to be made. For example, do we want to live in a society in which more and more work – transport, construction, cleaning, care of elderly people and children, food provision – is outsourced to a new class of servants made up mainly of migrant workers? Do we want a large agricultural sector that partly relies on subsidies and is dependent on migrants for the necessary labour? The present reality shows that we cannot divorce debates about immigration from broader debates about inequality, labour, social justice and, most importantly, the kind of society we want to live in.”
Many years ago I was “on the bus” for a border journalism junket. With me was Wall Street Journal editorial writer Jason Riley. His 2008 book, Let Them In: The Case for Open Borders, is still fresh as a daisy.
Look I get it: I was lucky enough to grow up bilingual, enjoy the benefits of “higher ed,” and travel a lot, so I am not afraid of immigrants. Many Americans aren’t so lucky. Still, unless we are OK with China and India eating our economic lunch, we need to face facts and let in more immigrants, stat.
* Pro Tip: Never watch television.
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There’s plenty of empirical support for Dan’s view that we are largely creating a “crisis” while missing a golden opportunity. Indeed, while the U.S. is the world’s richest and most powerful nation, many smaller and poorer countries are able to resettle more asylum seekers, refugees, and other types of forced migrants, by both absolute numbers and proportion. See, e.g.,https://www.nrc.no/shorthand/fr/a-few-countries-take-responsibility-for-most-of-the-worlds-refugees/index.html.
What we appear to have is more of a politically-driven crisis of lack of confidence, political will, and basic competence to manage a humanitarian situation that is predictable, largely inevitable, and an opportunity to harness the human capital of migration — the same energy that actually built our nation and made it great. We’ve wasted huge amounts of money, resources, and time on cruel, failed, counterproductive enforcement gimmicks, while underfunding and failing to creatively update adjudication and resettlement functions.
Sadly and disturbingly, politicos of both parties and the Administration are basically pledging and scheming to ignore the advice of experts and creative problem-solvers and to do an even worse job next year and into the future. They will certainly leave a scurrilous trail of fraud, waste, abuse, cruelty, futility, failure, death, and missed oportunities in their wake — if we let them get away with it!
Austin Kocher, Ph.D. Research Assistant Professor TRAC-Syracuse PHOTO: Syracuse U.
Dan’s essay also reminds me of another recent Substack essay from immigration expert and statistical guru, Professor Austin Kocher. Austin’s theory is that backlogs in and of themselves might not be as bad as we often portray them — particularly in light of the alternatives and the intentional failures to make obvious reforms to improve the “robustness” and fairness of our immigraton system. Seehttps://austinkocher.substack.com/p/3-million-cases-are-now-pending-in.
Here’s the core of what Austin says:
First, it is worth questioning our basic assumptions about whether the “backlog”, as it is somewhat sensationally referred to, is actually a bad thing. Unlike the Obama administration, when the rapid growth of court cases was more attributable to people who lived in the U.S. for a long time getting caught up in interior enforcement, the recent growth is almost entirely due to the arrival of asylum seekers into the country. If you believe that asylum seekers deserve an opportunity to have their cases heard, then these numbers might be a positive sign. More people will have at least a nominal opportunity to apply for asylum instead of being turned away outright at the border.
Second, it remains absurd to me that the current practice in the U.S. is to force recently arrived asylum seekers into court in front of an immigration judge rather than to direct their cases toward asylum officers at USCIS who are trained for precisely this purpose. Immigration courts were designed to adjudicate cases of non-citizens who are suspected of violating U.S. immigration laws. The courts are adversarial environments that, as far as I can tell, require far more taxpayer resources and migrant resources than non-adversarial asylum interviews do. The fact that there are 3 million cases in court is, to me, an indictment of a system that treats humanitarian crises through the lens of quasi-criminalization.
Third, since no real change is likely forthcoming, I think we should rethink our sensationalization of the backlog number and simply accept the growing immigration court backlog much like we accept the U.S. national debt ticker in New York City.2 It’s just going to keep going up unless something absolutely fundamental changes about the world we live in. Get over it. This is how things work now. We need to end the delusional thinking that reforms—even much-needed reforms, such as the creation of an independent court system—are going to “solve” the backlog. The U.S. immigration system either needs radically rethought or we need to simply accept that the number of pending cases will reach 4 million, 5 million, or 6 million cases in the next few years.
Lastly, if we really want to solve the backlog, the easiest way to resolve the backlog is for Congress to give everyone with an NTA (i.e., everyone with a pending court case) and who meets certain minimal criteria a special visa that regularizes their status and puts them on a path to citizenship just like other lawful permanent residents. Yes, yes—I know that not everyone will like that solution for political reasons, but at least admit that you don’t like it for political reasons, not because it wouldn’t solve the backlog (because it would). After all, the US Census Bureau is already forecasting absolute population decline in the US within our lifetimes. Three million new citizens now wouldn’t solve that problem, but it might not hurt in the long run.
I was struck by his second point. One of the positive regulatory changes made by the Biden Administration was to confer authority on USCIS Asylum Officers to grant asylum immediately, at the border or in reception centers, rather than referring all arriving asylum seekers who pass credible fear to the Immigration Courts. Nevertheless, as I among many pointed out, the Administration had neither the personnel nor the training in place to make this change effective.
I also argued that without a new BIA of expert Appellate Judges and exceptionally-well-qualified asylum expert Immigration Judges assigned to key Immigration Courts to provide dynamic leadership, de facto supervision, and a series of far better positive precedents guiding adjudicators to grant asylum in many repetitive situations, this positive change was doomed to failure.
Sure enough, the Administration botched the implementation — running inept, timid, and minute “pilot programs” that could only be termed “sad jokes.” To make matters worse, when recently faced with a humanitarian situation at the border, where a “surge” of qualified Asylum Officers working with NGOs to screen arrivals could have made a huge difference, the Administration inexplicably “suspended” this most useful part of their regulations. Meanwhile, they opted to keep more problematic provisions in effect.
To compound the problem, nativist GOP State AGs mounted frivolous court challenges to the expanded role of Asylum Officers. Stripped of its legal gobbledygook, they essentially and absurdly argued that the Administration lacked authority to empower statutory Asylum Officers to grant asylum.
Dan’s essay found favor with well-known expert Careen Shannon:
This post about the opportunity presented by migrants who want to live in the United States is a sensible message with which to end the year. Kudos to Dan Kowalski for stating what should be obvious but apparently cannot be repeated often enough.
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