"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration JudgesMe
Excerpts from Jennifer’s article:
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Garland’s latest vacatur was well-received by Jeffrey S. Chase and Paul W. Schmidt, who were among 40 retired immigration judges to sign a letter last spring urging Garland to undo all 17 BIA decisions issued by his Trump-appointed predecessors.
“Prohibiting an appellate body from accepting party stipulations below or honoring concessions on appeal is simply insane. Why would any party stipulate to an issue if it will simply be ignored on appeal?” Judge Schmidt said in a statement to Law360, calling such agreements “a really important part of encouraging efficiency in litigation and reducing backlog.”
According to Judge Chase, Monday’s order “will again allow valuable court time to be spent focusing only on issues actually in dispute between the parties, a practice that could save hours of hearing time on a single case.”
“And limiting the scope of administrative review to the issues actually raised on appeal by the parties eliminates the need to sacrifice fairness in order to achieve that increased efficiency,” he continued.
Retired Immigration Judge Paul Wickham Schmidt, a former chairman of the Board of Immigration Appeals who was also general counsel to the Immigration and Naturalization Service at the time of the EOIR’s creation, likewise praised Judge Illston’s order in an interview with Law360 Thursday.
Judge Schmidt, a vocal opponent of the Trump administration’s management of the EOIR, characterized the rule as part of a larger effort to discourage immigrants by stacking the courts against them, rather than a good-faith effort to reduce ballooning backlogs.
“When your docket is 1.3 million, it’s not the fact that someone is getting a few extra days in a continuance, it’s the fact that DHS is adding more cases,” he said.
As for whether the DOJ under President Joe Biden would continue defending the rule — as it is for one of the Trump-era asylum rules — Judge Schmidt said it was hard to say. But newly confirmed Attorney General Merrick Garland should prioritize changing the EOIR, as he stated his mission would be to restore nonpartisanship and defense of civil rights as pillars of the department, the judge said.
“If Garland wants to straighten out the Department of Justice, he’s got to straighten out EOIR. EOIR is a living refutation of everything Garland says he stands for,” Judge Schmidt told Law360.
Representatives for the DOJ did not respond to a request for comment Thursday.
The immigrant advocates are represented by Jingni (Jenny) Zhao, Anoop Prasad and Glenn Michael Katon of Asian Americans Advancing Justice — Asian Law Caucus, Seferina Young Berch, Stephen Chang, Naomi Ariel Igra, Michael O McGuinness, Scott T. Nonaka and Irene Inkyu Yang of Sidley Austin LLP, and Judah Ben Lakin and Amalia Margarete Wille of Lakin & Wille LLP.
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Thankfully, Jennifer is operating “outside the paywall” on this particular article. So, all of you can get full access to her outstanding reporting on this case at the above link.
Dear Judge Garland:
Congratulations again and best wishes on your recent appointment as our Attorney General. I write to beg you, as a former DOJ colleague, Senior Executive, and administrative judge to deal immediately with a festering problem undermining the entire U.S. Justice system that is unfolding right under your nose, whether or not you have had time to focus on it.
A number of the individuals and organizations whose help you will need to fix EOIR and achieve equal justice for all in America are instead having their time and precious resources diverted to defending our justice system and the Constitution from absurdly illegal and obscenely counterproductive decisions and actions now being taken in YOUR NAME, such as the illegal EOIR regulations in this case. Indeed, these regulations and many other travesties still being pursued by EOIR at the behest of the former regime should have been on the chopping block long before you were even sworn in.
Not only are you now squandering Executive Branch and private sector resources that could better be devoted to solving problems, you are also wasting the time and trying the patience of thoughtful Federal Judges like U.S. District Judge Susan Illston. Certainly, as a former highly admired and respected Federal Judge, you know the value of judicial time in our system.
Additionally, failure to take immediate steps to end the dysfunction, disorder, and nonsense still streaming from EOIR on a daily basis is not only destroying vulnerable human lives, but also costing you goodwill with the very NGOs and talented, dedicated, often pro bono advocates whose assistance and support will be absolutely necessary for you to succeed in your stated objectives of returning integrity to the DOJ, eradicating institutionalized racism, and finally, finally achieving long overdue equal justice under law for all in America.
As I told Jennifer, EOIR is a “living contradiction” of everything you said in your confirmation hearing. It’s also a repudiation of the values that I have always seen and respected in you, even if mostly from afar.
I beseech you to “pull the plug” on today’s EOIR and put someone in there who can start getting it back on track: A “Due Process/Human Rights/Immigration Guru,” if you will. In terms to which we both can relate, you must find a judicial leader in the image of our late great colleague from the Carter DOJ, and your former colleague on the D.C. Circuit, Judge Patricia M. Wald. As we both know, she was was brilliant, energetic, yet highly practical, well-organized, and unswervingly committed to realizing social justice on both the national and eventually international stages.
Put someone who can run a real due-process-oriented court system in charge of the EOIR mess and let ‘er rip. You can cement your legacy to American Justice by achieving EOIR’s once noble, now discarded, vision that many of us who once served there established to guide our actions: “Through teamwork and innovation, be the world’s best tribunals guaranteeing fairness and due process for all.”
With my very best wishes for your continued success,
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”“Justice” Star Chamber Style“She struggled madly in the torturing Ray” Amazing StoriesArtist Unknown, Public domain, via Wikimedia CommonsBIA Members Unwind After Harassing Another Expert, Overruling Circuit Court, & Aiding Their “Partners” At ICE In Demeaning Justice https://www.flickr.com/photos/rasputin243/ Creative Commons LicenseBIA Asylum Panel In Action Albrecht Dürer, Public domain, via Wikimedia Commons
‘White Nationalism’ In Immigration Courts Must Go: Ex-Judge
By Jennifer Doherty
Law360 (January 28, 2021, 9:48 PM EST) — A former immigration judge called on the Biden administration to reorient the mission of immigration courts on Thursday, saying that a “white nationalist program” had taken root under the Trump administration and needs to be eradicated.
Speaking on a panel about a new report showing that the vast majority of non-detained migrants appear at their immigration court hearings, retired Judge Paul Wickham Schmidt called out Trump administration officials over “big lies and bogus narratives” promoted by the U.S. Department of Homeland Security and the Executive Office of Immigration Review, including claims that detention was necessary to prevent migrants from disappearing.
Judge Schmidt, who used to be the chair of the Board of Immigration Appeals, pointed to former Attorney General Jeff Sessions’ intervention in immigration cases to relitigate cases such as whether women who suffer domestic abuse in regions with high rates of femicide qualify for asylum, as well as the former administration’s messaging to immigration judges that their role was an extension of DHS’ enforcement mechanism.
“It’s all been part, I think, of the Stephen Miller white nationalist program, that there is no such thing as a good immigrant; all the immigrants are here to take our jobs or to evade the system,” Judge Schmidt said, referring to one of former President Donald Trump’s senior advisers.
Meanwhile, Thursday’s report from the American Immigration Council, an advocacy nonprofit group, confirmed what many immigration judges have known for years, according to Judge Schmidt.
Relying on a sample of 2.8 million immigration court cases where migrants were either released or were never detained, the report found that 83% of respondents with pending or completed removal cases showed up for every hearing, a share that increased to 96% for immigrants represented by counsel.
“Represented asylum-seekers appearing before fair, knowledgeable judges show up for virtually all of their EOIR merits hearings,” Judge Schmidt said.
Based on those findings, the report recommended four policy reforms, including reducing immigration detention and ending the Migrant Protection Protocols, which have forced over 70,000 people to wait in Mexico for decisions in their asylum cases.
The report also called for additional training for immigration judges and the rollback of a law requiring judges to issue orders of removal for migrants who failed to appear, an occurrence the authors found was frequently due to faulty notices to appear.
Creating an Article I, also called a legislative court, would also give immigration judges more independence in their review of individual cases and relieve them from pressure to meet case quotas, according to the report.
UCLA School of Law professor Ingrid Eagly, co-author of the report, said that additional training would serve to reduce inconsistencies between immigration courts and ensure that judges held the
government accountable for its responsibility to notify migrants of their court dates.
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Those with access can read the rest of Jennifer’s article on Law360.
Jennifer Doherty Reporter Law 360 Photo: Twitter
I was talking to a lawyer/reporter this afternoon. Her comment was: “Could anybody have designed a worse system for deciding life or death cases?” She was told in “pro bono training” to observe how certain judges like the chairs arranged in the courtroom because it could affect the outcome of her client’s asylum case!
Another attorney I spoke with who had practiced personal injury law couldn’t believe that no immigration cases ever “settled.” Even those with clear merit bounce around the system for years and then go to full hearings, sometimes with inconsistent results!
How can a system operate like this? It can’t! That’s why doubling the number of questionably qualified “judges” has resulted in at least doubling, perhaps tripling, the “backlog.”
Under pressure from White Nationalists like Miller, Sessions, Hamilton, and Barr, EOIR has generated an artificially created “backlog” consisting largely of : 1] cases that could have easily been granted in a fair, functional, practical system; 2) cases that could be granted or placed in line at USCIS (another broken and dysfunctional agency); and 3) cases that never should have been filed in a rational system!
An incompetent BIA has failed to set forth the precedents for granting asylum and other relief that are necessary to restore the rule of law and common sense to a broken system! And they have totally failed to hold biased anti-asylum and nativist-enabling judges accountable! That’s because the BIA itself has become an organ of White Nationalist restrictionist bias bearing little, if any, resemblance to a “court” within the common understanding of the term. “Judicial independence,” impartiality, expertise, due process, and rationality have become “bad jokes” at EOIR!
And, for the past four years, the folks “running” this godawful system haven’t set foot in a courtroom in years (if ever) and don’t have a clue about asylum law or representing humans (rather than “agencies” or “nativists” as clients). It’s a friggin’ inexcusable disaster. FUBAR+++++++!
