"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.
Judge (Ret.) Susan G. Roy Accepting 2023 Legislative Service Award from NJSBANJSBA Legislative Service Award to Judge (Ret.) Susan G. Roy Jan. 2023
Sue writes:
I am honored to have received the NJSBA 2023 Distinguished Legislative Service Award, along with several immigration attorney colleagues. It is always so rewarding to be recognized by fellow attorneys. #immigration#immigrationattorney#njsba
According to the NJSBA:
The Annual Distinguished Legislative Service Award is the highest recognition and The Legislative Recognition Award is to acknowledge noteworthy legislative service. These awards are a yearly opportunity to acknowledge commitment to The NJSBA’s legislative goals and members’ willingness to testify before the State Legislature, prepare amendments and contact legislators on the Association’s behalf.
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Congratulations, my friend and colleague! And, thanks for all you do for our Round Table, due process, and fundamental fairness in America! You are an indefatigable force for justice!
Knightess of the Round Table
I look forward to being reunited with you, our Round Table colleague Judge Lory Rosenberg, and pro bono maven and course sponsor Rekha Sharma-Crawford on the faculty at the upcoming “Sixth Annual Litigation Trial College” in Kansas City, April 29-May 1! There’s still time to register, here:
Genevra W. Alberti, Esq. The Clinic at Sharma-Crawford Attorneys at Law Kansas City, Mo. PHOTO: The Clinic
Dear Colleagues,
The Clinic at Sharma-Crawford Attorneys at Law – a nonprofit removal defense organization in Kansas City, Missouri – is hosting its sixth annual Immigration Court Trial Advocacy College from Thursday, May 4, 2023 to Saturday, May 6, 2023 in the Kansas City metro area.
This is a unique, hands-on, one-on-one, training experience designed to make you confident in immigration court, and the program has something for beginners as well as experienced removal defense litigators. Under the guidance of seasoned trial attorneys from all over the country (myself included) and using a real case, real witnesses, and real courtrooms, participants will learn fundamental trial skills while preparing a cancellation of removal case for a mock trial. The complete conference schedule and faculty bios are available on The Clinic’s website here.
Days 1 and 2 of the program will focus on helping attendees master the fundamentals of trial practice and prepare a cancellation of removal case and witness for trial. For many of the sessions, attendees will be broken up into smaller groups, each with its own set of faculty members to provide one-on-one input. Each attendee will be assigned a role – either the respondent’s attorney, or the DHS attorney – and will have a volunteer “witness” to prep. On day 3, mock trials will be held in real courtrooms with faculty serving as the judges.
Tickets are available now, and you can register on The Clinic’s website here. There is a discounted rate for attorneys who are employed by a nonprofit. Price includes breakfast, lunch, coffee and refreshments throughout, along with a happy hour on Thursday. **VERY IMPORTANT: It is imperative that you commit to attending all 3 days of the conference, so please do not register unless you can do so.** If you have questions about this, please let me know. Proof of COVID-19 vaccination is also required.
Space is limited, so be sure to get your tickets soon. We hope to see you there!
I’ll be there again, along with my Round Table colleagues Judge Lory Rosenberg, Judge Sue Roy, and a host of other great faculty. See you in Kansas City in May!
“Going to Kansas City, Kansas City here I come . . . .”
“Join the ABA Commission on Immigration for a 3-part series on the Mechanics of Immigration Court. This series covers the nuts and bolts of how to practice in immigration court. Part I takes an in depth look at the Master Calendar Hearing and Filing Applications for Relief with Immigration Court. Topics to be covered include reviewing the Notice to Appear, getting your client’s court file, how to prepare for the initial Master Calendar Hearing and what to expect, best practices for appearing via WebEx and Open Voice, and a brief overview of common forms of relief and prosecutorial discretion. This webinar is designed for pro bono attorneys and immigration practitioners who are new to immigration law, or for anyone who wants to brush up on their practical skills.”
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PLAYING IN HOME, OFFICE, AND CLASSROOM THEATERS NOW!
RATED G — Suitable & Highly Recommended for All Audiences
Win cases, save lives, achieve racial justice, fulfill the wrongfully withheld promises of the U.S. Constitution, force change into a deadly and dysfunctional system that has been weaponized to “Dred Scottify” the other and degrade humanity!
Make an “above the fray” AG finally pay attention to and address the disgraceful, due-process-denying, wasteful mess in “his wholly-owned parody of a court system.” This is what being a lawyer in 21st Century America is all about!
The video is 1 hour and 15 minutes!
“If you can win a case in this system, everything else in law, indeed in life, will be a walk in the park!” — Paul Wickham Schmidt, ImmigrationCourtside
I want to say a bit about “foreground” versus “background” issues in immigration cases. I have noticed puzzlement at these concepts and recently when lecturing noticed that people do not appreciate the difference. In addition, it is not a common way of thinking about the law. It has become crucial for me, however, in my experience to clearly and effectively distinguish between these two concepts. It is also a rich source of ideas, strategies and techniques in a variety of cases, so let me try to explain it here. The other motivation for laying out the theory is that (in the future) I can point to this piece of writing as a “backgrounder” for my lectures … Sorry for the pun!
First, what are some foreground issues? You can start by readily imagining the elements of any claim – take for example an asylum case. In such a case, the applicant (or a respondent, in court) has the burden to prove most (but not all) of the issues. Those may include past persecution, future persecution, nexus (“on account of” one of the five statutory grounds), etc. The applicant may or may not have to prove that he or she cannot safely internally relocate or that there has been a fundamental change in circumstances in the country of origin. Nevertheless those are all “foreground” issues. Other pretty straightforward issues that have to be adjudicated and will be evaluated by the IJ include (1) credibility; (2) sufficiency of the evidence or corroboration; and (3) related to credibility, the consistency or coherence of the applicant’s story. Of course, background and foreground do not apply just to asylum, but can be imagined in the context of any case, and in any field of the law.
At this point, I would implore students to shout-out any “background” issues they can think of. In a pedestrian sense, all issues that come up in the course of a hearing or series of proceedings can be “brought to light” – by the judge or either party – and therefore get converted from “background” to “foreground.” But, many times these issues are not brought up, and often go unaddressed. If they are not brought up by counsel, for example, they may be waived and therefore a rich source of argument on appeal may be lost.
Some examples of background issues, and by now you probably see where I am going, include, interpreter (verbal) or translation (written) errors, transcription issues, competency or more saliently “incompetency” issues, jurisdiction, firm resettlement, other bars to relief, U.S. citizenship as a defense to deportation, other defenses, the existence of qualified relatives, unexplored avenues for relief, etc., etc. Basically, any issue that is lurking behind the scenes in any immigration court litigation can be seized upon and (in appropriate cases) be used on appeal when the BIA is reviewing what happened below before the trial judge.
A good example from an actual case may be helpful as an illustration to the reader at this point.
In my first pro bono BIA appeal years ago I utilized a series of “background” issues that resulted successfully (albeit after several months or years) in: (1) a remand to the IJ; (2) termination of the case on remand; and (3) ultimately, an (affirmative) grant of asylum for the mother and young child before USCIS. The case involved a young Haitian mother and her 7 or 8 year-old son. I got the case on appeal and read the transcript immediately. What struck me on reviewing the record was that at the very beginning of the proceedings, at the Master Calendar Hearing, an attorney or the judge mentioned very briefly in passing that the young boy was deaf. He had a disability that resulted in his being fitted with a device, a cochlear implant. The comment went unexplored or unremarked upon throughout the pendency of proceedings. Ultimately, the judge denied the political asylum claim of the mother. The fact that the child would be persecuted on account of his disability was not argued, mentioned, or even touched upon in the IJ’s decision denying relief.
As appellate counsel, I wondered if this “background” issue might be addressed on appeal. By researching how to make this a “foreground” issue on appeal, and hopefully a basis for a good remand, I learned about a very helpful case, Matter of Lozada (still good law) and was able to follow the rules and strict procedures in that case to prove that the prior attorney was ineffective by failing to bring out a key argument that could have been dispositive of the entire case.
The task was not an easy one. It should not be overlooked that Lozada and the case’s not insignificant requirements are burdensome. Moreover, the motion to remand had to be very thoroughly documented with expert affidavits, NGO reports, witness statements, and not to mention medical documents.
Once remanded, I noticed a further issue: in the file there was a one-page document with an old agency stamp which happened to be a copy of the I-589 asylum application that my client had never received an interview on and which had not been adjudicated. In bringing this further “background” issue to the Court’s attention, the burden shifted to my opposing counsel to provide the Department’s position on when, if ever, the agency had provided the required affirmative interview as required by Due Process, the INA, and the regulations.
Because the government could not prove that the interview had ever occurred, the motion to terminate was granted and I was permitted to file affirmatively (again) with USCIS, arguing this time the dire circumstances that would befall my clients in Haiti in consideration of the disability of the son and other details about the case involving the political situation in their home country.
Given these considerations, it is important for attorneys on appeal to take the record not as a given, as static, but something dynamic that can be researched and creatively explored at every level. A part of the case that was not appreciated previously can and often does exist. It may be a change of law that occurred while the case was winding its way through the lengthy and frustrating backlog (which stands of this writing at 1.6 million cases). It could be misdirection or mistaken advice by notarios or prior counsel. It can take the form of errors, made perhaps innocently and innocuously by interpreters that, if uncorrected, doom the respondent’s chances.
A further point: the retrospective stance of an appeal makes seeing background issues perhaps easier than seeing them in real time. What is really hard sometimes is seeing such issues as they happen in the context of the trial court setting. A key example of such issues that often get overlooked is burden of proof. We often see attorneys conceding deportability or inadmissibility, often overlooking key arguments or defenses. These are not really background but should be foreground issues, especially where the burden is on the government in most situations to prove by clear and convincing evidence the ground of deportability, now removability, has been proven. Other key arguments, for example, surrounding admissibility of statements of ICE officers, or others such as in the I-213 record of inadmissibility / deportability are also largely overlooked.
Finally, I want to mention in closing further fall-out from Niz-Chavez v. Garland and Pereira v. Sessions, and the latest developments surrounding the defective NTA issue. The defective NTA problem is probably one of the most underappreciated “background” issues because it implicates “jurisdiction,” or as the Board has left open, and it still remains to be decided, at the very least a “claims-processing” rule violation.
More specifically, for everyone who has an in absentia order, the rule in Rodriguez v. Garland, 15 F.4th 351, 354–56 (5th Cir. 2021), in the Fifth Circuit, and more recently, Singh v. Garland, (No. 20-70050), in the Ninth Circuit, has given us important opportunities to raise this as a crucial background issue. Even though these cases are at odds now with Matter of Laparra, 28 I&N Dec. 425 (BIA 2022), there are two circuits finding that in absentia orders must be reopened where the NTA was defective under most circumstances.
Given these developments there is no question that the defective NTA issue is not going away anytime soon. And if, as I think the Board will soon find, a defective NTA is indeed a claims-processing rule violation, at the very least, it will be important to raise such a “background” issue to reopen proceedings, obtain a remand, or otherwise preserve the procedural issue to ensure relief is available for many respondents.
*Clinical Professor, University of Houston Law Center; Individual Capacity and institution for identification only
KJ
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Thanks, Geoffrey, for giving us such a timely and much-needed dose of your “accessible practical scholarship!” And, as always, thanks to Dean Kevin Johnson and ImmigrationProf Blog for getting this out to the public so quickly.
Laparra is already in trouble in two Circuits at opposite ends of the spectrum — the 9th and the 5th. As Geoffrey points out, the potential of “counter-Laparra” litigation to force some due process back into both the trial and appellate levels of Garland’s dysfunctional “courts” is almost unlimited!
But, litigation challenging Laparra and raising defective NTAs as a “claims processing rule” must be timely raised at the first opportunity. It’s a great example of “background issues” that talented NDPA litigators must “bring to the foreground” and use to save lives! It also shows the importance of great practical scholarship and meticulous preparation. Good lawyering wins!
Genevra W. Alberti, Esq. The Clinic at Sharma-Crawford Attorneys at Law Kansas City, Mo. PHOTO: The Clinic
Dear Colleagues,
The Clinic at Sharma-Crawford Attorneys at Law – a nonprofit removal defense organization in Kansas City, Missouri – is hosting its fifth annual Immigration Court Trial Advocacy College from Thursday, April 28 to Saturday, April 30, 2022 in the Kansas City metro area.
This is a unique, hands-on, one-on-one, training experience designed to make you confident in immigration court, and the program has something for beginners as well as experienced removal defense litigators. Under the guidance of seasoned trial attorneys from all over the country (myself included) and using a real case, real witnesses, and real courtrooms, participants will learn fundamental trial skills while preparing a defensive asylum case for a mock trial. The complete conference schedule and faculty bios are available on The Clinic’s website here.
Among our All-Star Faculty will be Members of the Round Table of FormerImmigration Judges Hon. Lory Diana Rosenberg, Hon. Sue Roy, and Hon. Paul Wickham Schmidt.
Hon. Susan G. Roy Law Office of Susan G. Roy, LLC Princeton Junction, NJ Member, Round Table of Former Immigration JudgesHon. Lory Diana Rosenberg Senior Advisor Immigrant Defenders Law Group, PLLC, Member, Round Table of Former Immigration Judges
Me
Days 1 and 2 of the program will focus on helping attendees master the fundamentals of trial practice and prepare a defensive asylum case and witness for trial. For many of the sessions, attendees will be broken up into smaller groups, each with its own set of faculty members to provide one-on-one input. Each attendee will be assigned a role – either the respondent’s attorney, or the DHS attorney – and will have a volunteer “witness” to prep. On day 3, mock trials will be held in real courtrooms with faculty serving as the judges.
Tickets are available now, and you can register on The Clinic’s website here. There is a discounted rate for nonprofit attorneys. Price includes lunch, snacks, coffee and refreshments on all three days, along with breakfast on Friday and Saturday and a happy hour on Thursday. **IMPORTANT: It is imperative that you commit to attending all 3 days of the conference, so please do not register unless you can do so.** If you have questions about this, please let me know. Proof of COVID-19 vaccination is also required.
Space is limited, so be sure to get your tickets soon. We hope to see you there!
Small Acts of ThanksI would like to share a nice story (for once). It illustrates how a postscript can sometimes prove far more meaningful than the main story.
A friend and colleague in the DC area, Eileen Blessinger of Blessinger Legal, planned a series of training lectures via Zoom during the pandemic. When I initially agreed to present one of the sessions on asylum law, I was told it would be for an audience of eighteen people.
Somehow, the number of attendees increased significantly. Because meetings of more than 100 people require an upgrade on Zoom, Eileen asked participants for a small donation. I believe the training went well, and that seemed to be the end of the story.
Later that night, Eileen informed me that because the number of attendees was well over 100, there was a surplus of donations beyond what was needed to cover the Zoom upgrade. After a brief exchange, we agreed that the surplus should go to pandemic first responders.
Realizing the virtue of what was initially an unintended consequence, the next speaker, Louisiana-based attorney Glenda Regnart, also agreed to open her session to a wider audience, who were invited to make a small donation to treat first responders. Subsequent speakers Kelly White, Himedes Chicas, Anam Rahman, Julie Soininen, Danielle Beach-Oswald, Heain Lee, and Jennifer Jaimes agreed to follow suit. Over $1300 was raised.
Eileen took over from there, inviting suggestions for recipients from her staff. So far, she has provided meals to nurses at Mass General Hospital in Boston; to employees at supermarkets in Louisiana and Virginia, and to preparers of meals for those in need in Alexandria, VA. Plans are also in the works to provide a meal for DC-area sanitation workers.
Those of us able to quarantine comfortably and work from home owe an unimaginable debt to those putting themselves at risk to keep our cities and towns running, keeping us all fed and safe. And as most of us read of infection and death rates as impersonal statistics, the nurses and other medical workers who are battling the disease on the frontlines on a daily basis, putting their own health at risk in the process, are far beyond our ability to properly thank.
It was a donation to another group that touched me in an unexpected way because of its connection to an earlier unspeakable tragedy. Eileen forwarded me the accompanying photo of FDNY firefighters enjoying the meal provided for them from the training surplus. Looking at the photo, I was suddenly transported back to the fall of 2001. My wife and I, who both worked in lower Manhattan, were physically very close to events on 9/11. What we saw still triggers traumatic memories. Among the horrible and tragic statistics is the heartbreaking fact that 343 firefighters died that day. More than 200 more have died as the result of illnesses they subsequently contracted in the rescue effort.
I walked past the firehouse on Duane Street every day on my way to and from work when I was an immigration judge. I remember the feeling of grief when passing by in the months following 9/11, and of stopping there one day in October to make a donation, and of words completely failing me as I tried to express my sadness and gratitude.
In the present pandemic, 15 firefighters in the unit pictured here (Engine 286/Ladder 135) had contracted COVID-19 as of last week. As early as April 7, 500 of New York’s Bravest had contracted coronavirus. Many more continue to be exposed as first responders to emergency calls from those stricken with the disease. And the firefighter who took the photo, Jerry Ross, was also a 9/11 responder.
So once again, we are reminded of the great debt we owe to so many. Thanks again to Eileen and all of the other speakers, and of course to all who contributed. Hopefully, these small acts of thanks will bring a little joy to these most essential and selfless heroes.
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Go to Jeffrey’s blog at the above link for the accompanying photo of Engine 286/Ladder 135 enjoying their meal!
Thanks Jeffrey & Eileen!
So proud that in addition to Eileen, of course, so many of the wonderful pro bono attorneys highlighted in this article were “regulars” before us during my time at the Arlington Immigration Court: Kelly White, Anam Rahman, Julie Soininen, Danielle Beach-Oswald, and Jennifer Jaimes. Also, Jennifer is a former Legal Intern at the Arlington Immigration Court who was part of our daily “run the stairs challenge” (at the former Ballston location) with then Court Administrator Judges Bryant and Snow, and me. Ah, those were the days!
Jennifer Jaimes Esquire Jaimes Legal, LLC Baltimore, MD
fl-undocumented-minors 2 – Judge Denise Slavin, executive vice president of the National Association of Immigration Judges in an immigration courtrrom in Miami. Mike Stocker, Sun Sentinel
Subject: Do’s and Don’ts for Demonstrative Evidence in Immigration Court – NITA’s studio71 March Webcast
Register for NITA’s upcoming free webcast
FREE LIVE WEBCAST
Do’s and Don’ts for Demonstrative Evidence in Immigration Court
Presented by:
Judge Denise Slavin
Retired Immigration Judge and President Emerita of the National Association of Immigration Judges (NAIJ)
March
31
10:00am PDT / 1:00pm EDT
Demonstrative evidence – maps, drawings, photos, diagrams – to help demonstrate or illustrate the testimony of a witness is a vastly underutilized litigation tool in immigration court. But immigration court – where the pivotal events have occurred in another country and the witness might not have access to real evidence to corroborate his/her story – is the ideal place for the use of such evidence to assist the Immigration Judge by clarifying testimony and explaining the facts. This webcast will discuss various ways that demonstrative evidence may be useful in immigration court, provide the mechanics or “how to” for using such evidence, and address some special concerns in the for the use of such evidence in immigration court.
If you can’t make the live presentation, this webcast will be available to view on demand, beginning the next day.
The National Institute for Trial Advocacy
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Boulder, CO 80301-2735Follow NITA’s social accountsTo view our non-discrimination policy, click here
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What a great chance to learn the “nitty gritty” from former DOJ litigator, labor negotiator, union executive, “Knightess of the Round Table,” and one of “America’s Best Judges”* — Hon. Denise Noonan Slavin. Don’t miss it!
Knightess of the Round Table
*As determined by Courtside’s “Panel of Judicial Experts.”
