"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.
We examine the record of one of the toughest immigration judges in the country, including the surprising way her decisions benefited transgender asylum-seekers. Then we follow one transgender woman who flees El Salvador for the United States to try to claim asylum.
Our final story takes us to Turkey, and focuses on a small but growing group of refugees seeking a new life: young Afghan women fleeing abuse, forced marriage and persecution in their homeland. Reporter Fariba Nawa tells the story of Hoor, who made the dangerous journey into Turkey alone, only to be assaulted by an Afghan man in Istanbul. Against all odds, Hoor sought justice for her abuser and ultimately prevailed.
Credits
Our first story about an immigration judge who ruled on hundreds of cases involving transgender asylum seekers was reported and produced by Patrick Michels and edited by Brett Myers.
Our second story about a transgender woman who fled El Salvador was reported by Alice Driver. It was produced by Casey Minor with help from Emily Harris and Amy Isackson and was edited by Brett Myers.
Our story about Afghan female migrants was reported and produced by Fariba Nawa and edited by Taki Telonidis.
Our production manager is Najib Aminy. Original score and sound design by Jim Briggs and Fernando Arruda, who had help from Kaitlin Benz and Katherine Rae Mondo.
The lack of sensitivity training and proper application of the legal standards for asylum that was allowed to go on for many years in this Immigration Courtroom is appalling;
The BIA, whose job is supposed be insuring that individuals’ Due Process rights are respected and asylum law is applied in a fair and impartial manner, failed to do its job;
The qualification of individuals for asylum based on gender classifications has been well established since Matter of Tobago-Alfonso, 20 I&N Dec. 819 (BIA 1990) was published (at the direction of then-Attorney General Janet Reno) in 1994;
LGBTQ cases were well-documented, credible, and routinely granted by the U.S Immigration Judges at the Arlington Immigration Court during my tenure there;
I don’t remember ever denying a transgender case — most were either stipulated or agreed upon by the DHS Office of Chief Counsel — yet EOIR failed to institutionalize those “best practices” that would have promoted justice, consistency, and efficiency;
Immigration Judges are bound to follow not only BIA precedents, but also the precedents by the U.S. Circuit Courts in the jurisdiction where they sit — that obviously was not happening here — a clear violation of both law and ethics;
You can see the difference when an Immigration Judge does listen, properly applies the law in the generous manner dictated by the Supreme Court in INS v. Cardoza-Fonseca and the BIA in Matter of Mogharrabi, and gives the respondent “the benefit of the doubt” as set forth in the U.N. Handbook on the Refugee Convention;
The difference in people’s lives and the benefits to the U.S. when judges properly apply asylum law to protect individuals, as intended, is obvious;
Those without lawyers and those held in long-term detention are being treated unfairly and not in accordance with Due Process;
This system needs reform so that it operates independently, impartially, and under the legal standards established by law and by Article III Circuit Courts;
Immigration Judges who are biased against asylum seekers must be uniformly reversed and “outed” by a real Appellate Tribunal, not the current “go along to get along” version of the BIA;
Judges who unwilling to threat asylum applicants and other foreign nationals fairly should not be reappointed to the bench in a competitive, merit-based process;
Trump’s recent “we don’t need no stinkin’ judges for asylum cases” rhetoric is as absurd as it is ignorant, unconstitutional, and damaging to both our precious justice system and vulnerable human beings who need and are legally entitled to our protection.
Many thanks to Lawrence University Scarff Professor of Government Jason Brozek for bringing this highly relevant podcast to my attention.
I am at Lawrence University (my alma mater) in Appleton, WI for two weeks as the Scarff Family Distinguished Visiting Professor. Jason and I currently are teaching a “mini-seminar” in Kasinga/FGM/Gender-Based Asylum in the Government Department at Lawrence. This podcast is directly relevant and “breathes life” into the issues we have been discussing with the wonderfully talented and engaged students in our class.
Last week, retired Immigration Judge Nathan “Nate” Gordon passed away. At his funeral, dozens of immigration attorneys, judges and others shared their stories of this wonderful man.
Judge Gordon changed many people’s lives in a very positive way.
I have a lot of stories about Judge Gordon.
Let me share one of them with you.
Judge Gordon – Background
Judge Gordon was born on Christmas Day in 1926 in New Jersey to Jewish immigrant parents from Eastern Europe. He served in the US Army during World War II and graduated from New York Law School some years later.
He was employed by the U.S. Immigration and Naturalization Service (INS) as an Attorney from 1962 to 1977. After that, he became an Immigration Judge, first in Newark, New Jersey, then in Los Angeles.
I first met Judge Gordon in the mid-1980s, after I had left the INS and entered private practice. The tremendous amount of compassion that he had for immigrants was truly impressive. It trumped all legal standards. If he believed that a person deserved to stay in the US, Judge Gordon would find a way to make it happen.
Honor Student Miguel Perez
I remember getting a phone call one day from Congressman Mervin Dymally’s office. It concerned a young man born in El Salvador. He had been brought over the U.S.-Mexican border by his mother when he was 14 years old in order to save him from the violence of the civil war which was raging in their native country. They were immediately arrested and taken into custody by the Border Patrol. Though they were later released on bail, the experience was so stressful for his mother that she died of a heart attack a few weeks later.
The young man, Miguel Perez, not knowing a single word of English, was placed under deportation proceedings. The process took years. Ultimately, his application for asylum was denied by an Immigration Judge. The Board of Immigration Appeals (BIA) affirmed the Judge’s decision.
By this time, Miguel had not only mastered the English language, he had become an honor student at a local university. In his spare time, he tutored underprivileged children in South Central Los Angeles. After learning of the BIA’s decision, he packed his bags and got ready to book a flight to El Salvador. However, his professors and friends, horrified by the thought of what might happen to him if he returned to El Salvador, urged him to speak with his local Congressman.
The Congressman’s office arranged to have Miguel meet with me. The next day, his story appeared on the front page of the Los Angeles Times. We immediately appealed his case to the U.S. Court of Appeals for the 9th Circuit which overturned his denial. Miguel was scheduled for a new hearing before an Immigration Judge.
Miguel had, by this time, lived in the U.S. for more than 7 years. Under a law which existed at that time, he could apply for a green card through “suspension of deportation”. He would need to show that he was a “person of good moral character” which he clearly was. He would also need to demonstrate that he would suffer “extreme hardship” if he were forced to return to El Salvador. This was a discretionary determination.
What he needed was a compassionate Immigration Judge.
Enter Immigration Judge Nathan Gordon, Supermensch
Fortunately, the Judge who had ordered Miguel deported had retired. By a great stroke of luck, Miguel’s case was transferred to Judge Gordon.
From my previous experiences with Judge Gordon, I was certain that he would find that Miguel would suffer extreme hardship if he were forced to return to El Salvador.
I scheduled a meeting with the INS District Director. I explained the facts of the case to him. Did the government want to look like bad guys eager to deport an honor student? Or would he consider having the government’s attorney tell Judge Gordon that they agree that Miguel’s application should be granted? The District Director agreed that Miguel should be granted suspension of deportation.
I told the District Director that there would be dozens of reporters and TV cameramen waiting outside the courtroom. At the hearing, we requested that Judge Gordon grant Miguel’s application for a green card. Judge Gordon then asked the government attorney what their position was. She told him that the government agreed that Miguel’s application should be granted. Judge Gordon smiled and proceeded to grant Miguel’s application.
Had Judge Gordon not been assigned to the case, I doubt that the government would have agreed prior to the hearing that Miguel’s application should be approved.
Fast Forward
Miguel went on to get a Ph.D and became a distinguished professor at a public university. He is married and is a great husband and father.
As I watched Judge Gordon’s casket being lowered into his grave last week, I thought about the thousands of immigrants like Miguel whose lives were altered in such a positive way by Judge Gordon.
Judge Nate Gordon was truly a Supermensch.
Carl Shusterman
Carl Shusterman served as an INS Trial Attorney (1976-82) before opening an 8 attorney firm specializing in immigration law. He is a Certified Specialist in Immigration Law who has testified as an expert witness before the Senate Immigration Subcommittee. Carl was featured in the February 2018 edition of SuperLawyers Magazine.
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Thanks, Carl, for a lovely and fitting tribute to a great jurist and a fine person! Judge Gordon actually took the bench shortly before I became the Deputy General Counsel at the “Legacy INS.” I became familiar with him and his work both during my time at the “Legacy INS” and during my time at the BIA. Indeed, Nate’s son, Attorney Louis Gordon, had an oral argument before a panel of the BIA sitting in Los Angeles. (Yes, there was a time, before Ashcroft, when the BIA was actually allowed to function largely along the lines of a real Federal Court and to decide to have arguments “on the road.” Now, the BIA is “confined to quarters” at Falls Church.)
Carl worked for me for a short time as a Trial Attorney at the Los Angeles Immigration Court when I was the DGC. But, he quickly found fame and fortune elsewhere.
Note how Immigration Court was once a more “user friendly” place, where there was mutual respect among the two parties and the Immigration Judge, and the objective was doing justice, not just cranking out more removal orders to keep the politicos at DOJ happy. Sadly, under Trump and his cronies at DOJ, the U.S. Immigration Court system is actually regressing in terms of expertise, professionalism, independence, and management — “stuck in reverse.”
