"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.
The Maine Council of Churches and The BTS Center are hosting an online reading of the “Letter from Birmingham Jail” at 12:15 p.m. on Jan. 16.
The event is free and open to the public. Those who register to attend are invited to donate to the Maine Initiatives Outdoor Equity Fund, which will make grants to organizations led by people of color that work to improve outdoor equity and access to nature-based learning. More information about the fund is available at maineinitiatives.org.
Those interested in attending can register at thebtscenter.org/committed-to-listen-mlk-day-2023. The reading will also be streamed on the Facebook pages for the Maine Council of Churches and The BTS Center.
On April 16, 1963, the Rev. Dr. Martin Luther King Jr. wrote a letter.
He had been arrested four days earlier for disobeying a court order that prohibited protests in Birmingham, Alabama. From his jail cell, he wrote to eight white religious leaders who had publicly condemned ongoing civil rights demonstrations. He decried the silence of white moderates and argued that racial violence demanded a more urgent response than those clergymen had counseled.
Sixty years have passed, but that message still rings true for the Rev. Allen Ewing-Merrill. He is the executive director of The BTS Center, a Maine nonprofit that offers theological programs. He rereads the letter every year on Martin Luther King Jr. Day and reflects on its call to be more courageous than cautious.
“We like to think that racism is that awful thing that other people do, the blatant white supremacist brand of violence,” he said. “But in the letter, Dr. King really pulls out the nuance of that and reminds us that racism is the violence of silence.”
This year, the Maine Council of Churches and The BTS Center chose the Letter from Birmingham Jail for an online reading to mark the holiday. King’s words will be read by eight people from Maine’s faith and social justice communities. For the Portland Press Herald/Maine Sunday Telegram, four of the readers reflected on passages they will recite during Monday’s event and the letter’s relevance to the modern world. Those passages and the readers’ comments are shown here.
Professor Philip G. Schrag Georgetown Law Co-Director, CALS Asylum ClinicProfessor from Practice; Director, Human Rights Institute; Director, Center for Applied Legal Studies PHOTO: GeorgetownLawProfessor Jaya Ramji-Nogales, Associate Dean for Academic Affairs I. Herman Stern Research Professor Temple Law PHOTO: Temple Law
Here’s the abstract of the latest “practical scholarship” from the RR3:Professors Phil Schrag, Andy Schoenholtz, and Jaya Ramji-Nogles, “The New Border Asylum Adjudication System: Speed, Fairness, and the Representation Problem,” which will appear in the Howard Law Journal:
The New Border Asylum Adjudication System: Speed, Fairness, and the Representation Problem
In 2022, the Biden administration implemented what the New York Times has described as potentially “the most sweeping change to the asylum process in a quarter-century.” This new adjudication system creates unrealistically short deadlines for asylum seekers who arrive over the southern border, the vast majority of whom are people of color. Rather than providing a fair opportunity for those seeking safety to explain and corroborate their persecution claims, the new system imposes unreasonably speedy time frames to enable swift adjudications. Asylum seekers must obtain representation very quickly even though the government does not fund counsel and not enough lawyers offer free or low-cost representation. Moreover, the immigration statute requires that asylum seekers must corroborate their claims with extrinsic evidence if the adjudicator thinks that such evidence is available – a nearly impossible task in the time frames provided by the new rule. As a result, the new rule clashes with every state’s Rules of Professional Conduct 1.1 and 1.3, imposing duties of competence and diligence in every case that a lawyer undertakes. It will be extremely difficult for lawyers to provide competent and diligent representation under the new, excessively short deadlines. For immigration lawyers, the new rule exacerbates a challenge that they share with public defenders and other lawyers working within dysfunctional systems: how to provide even the most basic level of procedural due process for their clients, most of whom are people of color.
This article begins by describing the regular asylum process. It then summarizes the history of expedited removal, a screening system that limits access to that process for asylum seekers who arrive at the southern U.S. border without visas. It then explains and assesses the Biden administration’s first and second versions of the new asylum rule, highlighting the major flaw that will make the current version an unfairly formidable hurdle for asylum seekers subject to it. The article concludes by setting out a way for the Biden administration to create a more fair, accurate and efficient border asylum adjudication system and ensure that the U.S. can comply with domestic and international refugee law.
Keywords: Asylum, Asylum adjudication, Asylum process, Expedited removal, Immigration, Legal ethics, Due process, Administrative law
JEL Classification: K39
Suggested Citation:
Schrag, Philip G. and Ramji-Nogales, Jaya and Schoenholtz, Andrew I., The New Border Asylum Adjudication System: Speed, Fairness, and the Representation Problem (September 29, 2022). Howard Law Journal, Vol. 66, No. 3, 2023, Available at SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4233655
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New regulations pasted on old anti-asylum, anti-lawyer, anti-due-process attitudes and relying on an ever more dysfunctional EOIR, now at war with the asylum bar, won’t cut it! Albrecht Dürer, Public domain, via Wikimedia Commons
You can download the complete article from SSRN at the above link.
Expect the Biden Administration to “blow off” the suggestions for improvement at the end of the article. They seem to glory in “tuning out” the views of practical experts who know how to fix the broken asylum adjudication system.
As I predicted when these regulations first came out, they were “programmed for failure.”
Due-process-denying, representation-killing, arbitrary time limits imposed from above have been tried by Administration after Administration. They have always failed and will continue to do so. So, why are they a key part of the Administration’s so-called “reforms?”
Compare the article’s discussion of the importance of representation and the practical and ethical problems caused by the new regulations with the reality of the “nutsos” ways EOIR is mis-treating attorneys currently trying to practice before the Immigration Courts!
Additionally, the unwarranted, yet largely self-fulfilling assumption by the Biden Administration that only 15% of asylum applications would be granted at the “Asylum Office stage” show why this program was designed to fail by the wrong officials. For the system to meaningfully address the Immigration Court asylum backlog, the grant rate would have to be multiples of that — probably at least 50%.
That’s a realistic projection, given the well-documented, atrocious human rights conditions in most “sending countries” and the current artificial limitations on grants imposed by bad precedents and flawed, biased, or incompetent adjudications. When I was at the Arlington Immigration Court from 2003-16, a significant majority of the “referrals” from the Asylum Office were granted asylum, withholding of removal, or CAT protection, often with concurrence or only token opposition by ICE. That suggests that there is a huge unrealized potential for many more timely asylum grants at the Asylum Office. But, success will never be achieved with the current “anti-asylum, afraid to correctly and fairly implement refugee law gang” in charge — committed to retaining the bad attitudes and repeating the mistakes of the past!
Hanging over the whole disaster is the “uncomfortable truth” that I’ve been shouting:
The Biden Administration is still operating EOIR and large portions of the immigration bureaucracy at DHS with Trump-era “holdovers” who were improperly “programmed to deny” asylum.
There is a dearth of positive precedents from the BIA on gender-based asylum and other types of common asylum applications at the border that are routinely and wrongfully mishandled and denied.
There are cosmic problems resulting from failure to provide qualified representation of asylum seekers at the border.
Detention continues to be misused as a “deterrent” to legal claims and “punishment” for assertingthem.
Despite “touting” a much larger refugee admissions program beyond the border, the Administration has failed to deliver a robust, realistic, refugee admissions program for Latin America and the Caribbean which would take pressure off the border.
Racism and White Nationalism continue to drive the Administration’s dramatically inconsistent approach to White refugees from Ukraine compared with refugees of color at the Southern Border.
Indeed, this entire “reform effort” is essentially “upside down.” It’s a “designed to fail” attempt to avoid the broken and malfunctioning Immigration Court system without dealing with the REAL problem: EOIR!
Without the necessary progressive personnel and structural reforms at Garland’s EOIR (“clean house” of unqualified, under-qualified, or misplaced administrators and judges from past Administrations), the cultural changes (“out with the anti-asylum, anti-immigrant, racially challenged, too often misogynistic, EOIR culture”) it would bring, and most of all, the substantive changes to align asylum law with due process, best practices, and the generous interpretations that were foreshadowed by the Refugee Act of 1`980 but have been intentionally suppressed by politicos of both parties, there will be neither justice nor stability in our asylum and immigration systems, nor will there be equal justice for all, including racial justice, in America!
Even my esteemed “RR3” friends understate the debilitating effects of the ever-worsening dysfunction at EOIR and Garland’s failure of leadership on due process and human rights!
Perhaps the most telling statement in their article is this: “Asylum officers are more highly trained in asylum adjudication than immigration judges . . . .”Why, on earth, would that be?
Why isn’t the BIA led and comprised of internationally-respected asylum experts like Schrag, Schoenholtz, Ramji-Nogales, and others like them? Why aren’t all Immigration Judges drawn from the ranks of universally-respected “practical scholars” in asylum and human rights?Plenty of them are out here! Why aren’t they on the bench? Why is the Biden Administration running a “D-Team Judiciary” at EOIR rather than “the world’s best administrative tribunals, guaranteeing fairness and due process for all” as EOIR was once envisioned? What’s the excuse for lousy training at EOIR when top-flight “modulated” asylum training is available from expert sources like Professor Michele Pistone’s innovative VIISTA Villanova program? What’s the excuse for the colossal EOIR failure that threatens lives and our democracy on a daily basis? Why aren’t alarm bells going off at the White House about Garland’s failed stewardship at EOIR?
Reforming the asylum system, starting with EOIR, could also potentially have big societal and economic benefits for America. Asylees gain legal status, can work, get in line for green cards, eventually become citizens, and realize their full potential as productive members of our society. Not incidentally, they also become regular taxpayers and can help bolster essential enterprises and infrastructure improvements.
For example, just yesterday the Portland (ME) Press Herald featured an article about the critical, chronic shortage of workers in Maine. https://www.pressherald.com/2022/10/02/how-can-maine-solve-its-workforce-crisis/ Why isn’t the Biden Administration working with Maine authorities, NGOs, and economic development groups to “fast track” asylum approvals for those who might be persuaded to resettle in Maine to take advantage of these economic opportunities, for everyone’s benefit? Mainers also are suffering from a shortage of affordable housing. I’ll bet that with a little “seed money,” there are enterprising, skilled groups of potential asylees who could help build and maintain affordable housing for communities in need, in Maine and elsewhere in the U.S. Why are they instead “rotting at the border” or being aimlessly “orbited” around America by nativist GOP governors trying to score political points with their White Nationalist base?
By adopting the nativists’ dehumanizing mis-characterization of asylum seekers as a “problem” to be measured in “numbers,” deterred, and held at bay, the Administration is missing a golden opportunity to achieve some much-needed “win-wins.” Why run bone-headed “built to fail, haste makes waste” asylum pilot programs in a few cities rather than trying things that might work to everyone’s advantage, as I have described above?
At a time when many in America are finally learning the truth about our disgraceful failure to offer refuge to Jews during the period leading up to the Holocaust from the Ken Burns documentary, we (our at least some Americans) appear to be committed to making the same mistakes again. We should not undervalue the lives and contributions of refugees because of systemic or structural boas against certain groups!
Claiming to “reform” the U.S. refugee and asylum system without dealing with the ongoing, worsening, disasterous dysfunction at EOIR is a fool’s errand. The way to make the system work more efficiently is to grant the large number of deserving asylum cases in a timely, practical, manner driven by due process, best practices, and best interpretations of asylum law. Unless and until those in charge act on this truth, the awful mess at EOIR will continue to be an existential threat to democracy!
The phrase “America First” fell rapidly into disrepute during World War II, largely because the America First Committee (whose most prominent spokesman was Charles Lindbergh) had urged non-intervention and appeasement and been accused of anti-semitism and fascist sympathies. It was then consigned to temporary obscurity, but not everyone forgot. The slogan was periodically recalled to articulate resurgent right-wing nationalism, often explicitly white nationalism, from Gerald L.K. Smith, once known as “America’s most notorious antisemite,” who founded the America First Party in the 1940s, to Barry Goldwater, hailed by his supporters as an “America First” politician and described by the conservative National Review in 1963 as standing for “States’ Rights, strict construction, limited government, private enterprise, and America first, last and always.” It was used to describe David Duke and George Wallace, before being resuscitated by Pat Buchanan (“We are not isolationists. We simply believe in America first, last and always,” he declared in 2000) in his presidential campaigns. A certain Donald Trump flirted with making his own run under Buchanan’s Reform Party banner, then brought the phrase triumphantly back a century after Wilson popularized it.
[Competing visions of the American Dream are driving Democrats and Republicans apart]
Now the America First Policy Institute declares that its slogan is “America First, Always” and that its immigration policy will mean no longer putting “America last” — echoing the language of a March 1922 editorial from what was then the nation’s most popular weekly, the Saturday Evening Post, as it harangued its readers about the “immigration problem” caused by “our policy of putting the alien and his interests first, and America last.”
These “America First” initiatives go beyond attempts at excluding the “alien” that were already divisive, and futile, a century ago. One of the most prominent spokesmen for “America First” today is Nicholas Fuentes, a white Christian nationalist who organized the America First Political Action Conference earlier this year. Fuentes was also present at the storming of the Capitol, as were his “Groyper” followers, waving his “AF” flags. Fuentes declared: “It is the American people, and our leader, Donald Trump, against everybody else in this country and this world.” That is certainly what “America First” has meant in the past, as its leaders promise that only they can put America first, by inflaming divisions against nearly every other human being. But it is “America First” that endures, not its erstwhile leaders — and its history offers a pretty good indication of what to expect from Trumpism without Trump.
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I highly recommend that everyone read Sarah’s full article at the link.
Immigrants are almost always the first target of this “confederacy of cowards” — because they are most vulnerable. U.S. courts have traditionally been unwilling to effectively enforce the constitutional and legal rights of “the other.” But, as pointed out in the article, the hate and resentment continues to pour out against additional groups and individuals until “almost every other human being” becomes a target.
We see it today in Virginia Governor Glenn “Junkman” Youngkin’s recent cowardly and unconstitutional “targeting and bullying” of transgender school kids under the ridiculously bogus rubric of “parents rights.” Just where does the “right” of neo-fascist parents to bully the children of others come from?
The Fourth Circuit Court of Appeals in the Grimm case in 2020 already has found that “Junkman’s” scofflaw attempt to force transgender kids to use the wrong bathroom likely will be held unconstitutional. But, the Constitution and laws have never been anything but “convenient props” for America Firsters!” Compare the courage of the Grimm plaintiff with the ugly cowardice of the “Junkman” and his followers. (This following “Junkman’s” outrageous trip to Maine to campaign for notorious racist GOP gubernatorial candidate Paul LePage).
But, the Fourth Circuit might be an aberration. Often, getting reactionary judges who lack the character and guts to stand up against demonization of their fellow humans helps fuel and protect the “America First” movement from accountability. That’s certainly been at the core modern GOP mis-governance, and the Dems have been painfully “slow on the uptake” in countering it.You have only to look at Merrick Garland’s astounding mis-handling of the reactionary, weaponized, and totally dysfunctional Immigration “Courts” under his control to see just how slow!
In the end, it will be up to the upcoming generation to decide what kind of America they want to live in: An America that respects and honors the dignity, worth, and human potential of all of its inhabitants and serves as a model of tolerance and inclusion for the rest of the world? Or, an America where a minority of extreme right wing authoritarians are at war with the rest of us and, indeed, with humanity itself. Your choice!
Where else on the peninsula would you see in a church five young foreigners laughing and speaking in Turkish with a 96-year-old parishioner, exchanging contacts and making plans to visit again?
With love, the Congregational Church of Boothbay Harbor welcomed over 186 workers from away who traveled from other countries and around the USA to work in our community on June 27. This long tradition continues to “welcome strangers” and give them community support information to make their stay safer and more enjoyable.
Thirty-seven (37) of those 186 were able to get to the church to enjoy a “lunch and learn.” The remaining received gift bags from the church which were hand delivered to 149 workers by the Mission Committee.
At the “lunch meet” this shy and reticent group of 37 soon turned into an upbeat and hopeful number of workers who got to know each other and make plans to socialize together. We, the Mission Committee, learned a lot, too, about each of their homes of origin, their aspirations and fears.
There were workers from Russia, Serbia, Romania, India, Moldova, Albania, Croatia, Turkey and Montenegro as well as Texas, Maine, Washington, D.C., Silver Spring, Maryland and Kansas.
With a delicious takeaway lunch on site, they heard from our pastor, police department; Rotary and our town’s resources. They appreciated learning how to feel safe here and how to utilize our local services. Included in this event were Rotary bikes for loan with a $100 deposit.
For those who could not attend, we distributed gifts to the participating businesses’ 145 workers with gifts of information and fun food. Nearly every business that hires these folks participated and voiced their appreciation of the event.
The workers were interested in fun together in their free time and agreed to share their contact information with each other. They asked for us to arrange for a second event in September so that they might learn from each others’ experiences. One medical student asked to participate in a local community project and will be a guest at our upcoming Mission Committee meeting.
We offer a special thanks to all of the businesses which chose to participate and especially to Hannaford which donated a great deal of food.
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Workers from abroad have been an essential part of the summer economy here in Boothbay Harbor for the decades we have been coming here. They enrich everyone’s experience while learning and experiencing some “real Americana!”
And, there can be little doubt why the Boothbay Region is an international,drawing card!
S/V Believe Home Port, Bradenton FL Anchored in Linekin Bay Captains Rick & Julie PetersonLewis CoveGo Pack! — Go Badgers!The Isaac H. EvansLinekin BayBoothbay Harbor from East Side — Whales Tale Pub“Dunky Dog”
Our View: ‘Great replacement’ lie runs deep in Republican politics
Party leaders tolerate radical anti-immigrant ideology, even as it motivates racist massacres like last weekend’s mass shooting in Buffalo.
. . . .
After other racist massacres, we have asked Republican leaders to repudiate this false and dangerous ideology that is taking root in their party and shun anyone who traffics in it. But they never have, and we don’t expect them to do so now. The state party has attempted to appear more friendly to immigrants this year, opening a “Multicultural Center” in Portland. But the party showed no sign of separating itself from anti-immigration figures like Lockman at the recent party convention.
Apparently, the party needs the white-power extremists, just as it needs anti-immigrant, anti-transgender, anti-vaccination and QAnon elements, who may make up only a minority of the electorate but who provide the party with its energy and enthusiasm at election time.
We expect that Republican Party leaders, candidates and officeholders– who know that there is no such thing as a “great replacement” – will continue to keep their mouths shut about the extremists in their party so that they can ride their enthusiasm to control of Congress, the Blaine House and the state Legislature in November.
They are playing with fire, and we are all at risk.
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Read the full editorial at the link!
“We are all at risk.” Certainly, that has been my message on “Courtside” since its inception in 2016!
That’s why it was, and continues to be, such a tragedy for our democracy that Democrats, once in power, have failed to aggressively stand up for “immigrants’ rights, due process for all, and drastic, meaningful, Immigration Court reform.”
Immigrant justice = racial justice = equal justice for all. And, the path to equal justice for all begins in the now disgracefully dysfunctional (but potentially due-process-enhancing) U.S. Immigration Courts where aggressive reforms and progressive judges in positions to “make a difference” are long overdue.
Often, the view is “clearer” from up here in Maine!
Report on Boston Asylum Office finds disproportionately low acceptance rates, bias against applicants
The office serving asylum seekers in and around Maine has the second lowest approval rate in the nation, according to a report by Maine immigrant advocacy groups.
The Boston Asylum Office has the second lowest acceptance rate of any office in the nation, and granted asylum to only 11 percent of its applicants in 2021, according to a report by Maine legal aid organizations handling immigration cases and advocates for reform.
The report says the office that serves asylum seekers in and around Maine is plagued by bias and burnout, and that its low grant rate is “driven by a culture of suspicion” toward asylum seekers.
The process of seeking asylum in the United States begins with an application to U.S. Citizen and Immigration Services. Applicants must prove they are fleeing a country in which they previously suffered persecution or were at risk of persecution based on race, religion, nationality, membership in a particular social group or political opinion.
Applications go through asylum offices first, which can either grant asylum from the outset or refer an application to an immigration court for a judge to consider.
Jennifer Bailey, an attorney for the Immigrant Legal Advocacy Project and one of the report’s authors, said almost all asylum seekers she works with eventually obtain asylum status through immigration court, after failing to be granted asylum at the Boston Asylum Office. But the court process can take years, and, while they’re waiting, applicants aren’t able to access federal student aid, social services or educational opportunities. Even worse, they spend that time away from their families, who can still be at risk.
“It’s not uncommon for people’s (families) left at home to die while they’re waiting, or to be lost within the violence,” Bailey said.
Collaborating with the Immigrant Legal Advocacy Project on the report were the Refugee and Human Rights Clinic at the University of Maine School of Law, the ACLU of Maine and a visiting lecturer at Amherst College in Massachusetts who spent eight years waiting on a decision from the Boston Asylum Office and was ultimately denied in May 2021. Today, he and his family live in Canada.
During its first five years, the Boston office – which opened in 2015 and processes about 5,600 applications a year – granted roughly 15 percent of its asylum applications on average, the report states. Meanwhile, offices in San Francisco and New Orleans were accepting asylum requests at rates that were more than three times higher. Nationally, the acceptance rate from 2015 to 2020 was 28 percent, the report says.
The report acknowledged that asylum officers who approve or refer cases to court face a “complex and essential” list of responsibilities. Being overworked and having less time to consider cases often results in asylum officers sending more referrals to immigration court, said some former officers cited in the report.
Meanwhile, supervising officers play an “outsized” role in the asylum-granting process, according to the report. If an asylum officer recommends granting asylum and the supervisor disagrees, the officer could face retaliation in the form of more work or a negative performance evaluation, the report states.
PRESUMPTION OF FRAUD
The report’s authors contend that their research “strongly suggests” that Boston’s asylum office doesn’t consider applications from a neutral stance, “but rather presumes they must be fraudulent or pose a security threat.” Of 21 trainings for asylum officers mentioned in the report, 14 were focused on fraud detection. Former officers told the report’s authors that constantly hearing concerns about fraud and credibility made them think such problems were more prevalent than they were.
“They’re telling their story, which, no matter what, can involve this unimaginable trauma of torture and violence or sexual violence or death,” Bailey said of asylum seekers. “Put yourself in that position and imagine how hard it is to talk about the worst thing that’s ever happened to you in your life, and having this officer – who has the power to help you and your family – say ‘No, I don’t believe you.’”
According to the report, bias and skepticism in the office extend to certain countries. The Boston Asylum Office granted only 4 percent of asylum applications from the Democratic Republic of Congo from 2015 to 2020, even though the U.S. has acknowledged significant human rights violations in that country, including unlawful killings and torture, the report says. The office granted only 2 percent of its applications from Angola, another country where there is known abuse.
The Newark Asylum Office in New Jersey, which also serves some of New England, granted asylum to 17 percent of its applicants from Angola and 33 percent of its applicants from the Democratic Republic of Congo.
English-speaking applicants are nearly twice as likely to be granted asylum as non-English speakers, who are referred to immigration court 80 percent of the time, the report says. Asylum-seekers who can speak English are referred to immigration court just under 60 percent of the time.
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Read the rest of Emily’s fine article at the link.
I did lots of DRC cases over 13 years on the trial bench! Most had lawyers and were extremely well-documented. Often ICE didn’t oppose grants (prior to Trump).
In Arlington, with agreement from the parties, they were candidates for the “short docket.” Nearly all the DRC cases “referred” from the Arlington Asylum Office were granted upon “de novo” review in Immigration Court.
This is a prime example of how our asylum system seriously regressed under Trump and has not been fixed by Garland and Mayorkas! No wonder our Immigration Courts are hopelessly and unnecessarily backlogged with an astounding 1.6 million pending cases. Bad judging, systemic anti-asylum bias, lack of competence, and gross mismanagement by DOJ and DHS are taking a toll on democracy and humanity!
Pathetically and disingenuously, USCIS tries to blame their malfeasance and lack of competence on “the pandemic.” That drew one of the more perceptive public comments I’ve seen recently:
Pandemic restrictions didn’t create bias in other asylum offices – that’s a totally inadequate excuse.
For sure! Just like it’s a pretext for the elimination of our legal asylum system at the border that Garland disgracefully defends! Think that the “anti-asylum culture” problem ends with USCIS? Guess again?
Former Attorney General Jeff “Gonzo Apocalypto” Sessions was never bashful about sharing his White Nationalist, nativist, xenophobic falsehoods and myths about asylum seekers with his “captive” Immigration Judges. That’s right, for those not “in the know,” amazingly the “courts” that are supposed to provide expert legal precedents on asylum law and give a “fresh look” to those cases not granted by the Asylum Office aren’t “courts” at all as most Americans know them. They are run by the chief law enforcement official of the United States, the Attorney General, even though they are called “Immigration Courts.”
Sessions actually made the following statement, unsupported by any hard evidence, to a group of his wholly owned “judges” on October 12, 2017:
“We also have dirty immigration lawyers who are encouraging their otherwise unlawfully present clients to make false claims of asylum providing them with the magic words needed to trigger the credible fear process.”
At the same time, he announced that he was, on his own motion and over the objection of the DHS and the applicant, “undoing” the leading BIA precedent recognizing gender-based harm as a ground for asylum. For a good measure, he also warned his supposedly, but not really, “fair and impartial judges” that he expected them to strictly apply precedent — HIS precedents, that is. In other words, start cranking out those asylum denials or your career might be in peril!
Some judges chose to resign or retire. Some kept on doing their jobs conscientiously, legitimately “working around” Sessions’s poorly reasoned and factually inaccurate anti-asylum precedents. Many, however, chose to “go along to get along” with the anti-asylum program — some happily (there were reportedly some cheers and applause when Sessions announced his cowardly assault on vulnerable refugee women of color), some not.
So clearly wrong and totally off-base was Sessions’s assault on asylum-seeking women, primarily those of color, that even the otherwise timid and reticent AG Merrick Garland had to reverse it during his first year in office and restore the prior BIA precedent. However, there has been no further guidance from the BIA on properly and generously applying this potentially favorable, life-saving precedent.
President Biden charged Garland and Mayorkas with developing regulations on gender-based claims by October 2021. Obviously, that date has come and gone with the regulations still MIA!
Think that promoting a culture of xenophobia, racism, and overt bias has no effect? During the Trump Administration, although conditions for refugees, and particularly for refugee women, worsened over that time, the Immigration Court asylum grant rate fell precipitously — from more than 50% during the mid-years of the Obama Administration to only 23% during FY 2020, the last full year of the Trump regime.
The Immigration Courts and especially the BIA were “packed” by Sessions and his successor “Billy the Bigot” Barr with questionably qualified “judges” perceived to be willing to do their nativist bidding. Inexplicably, Garland has been unwilling to “unpack” them, despite these being DOJ attorney positions in the “excepted service,” NOT life-tenured Federal Judges.
Consequently, life or death asylum decisions today depend less on the legal merits of an applicant’s case than they do on the particular Immigration Judge assigned, the composition of the BIA “panel” on appeal, the Federal Circuit in which the case arises, and even the composition of the panel of U.S. Circuit Judges who might review the case.
They also depend on whether the applicant is fortunate enough to have a lawyer (not provided by the USG). Any unrepresented, often non-English-speaking asylum seeker has little or no chance of negotiating the intentionally arcane, opaque, unnecessarily hyper technical, and “user unfriendly” asylum system in Immigration “Court” without expert help.
Almost every week, the Circuit Courts of Appeals publish major decisions pointing out elementary legal and factual errors by the BIA’s “deportation railroad.” But, that’s just the tip of the iceberg! The vast majority of life-threatening errors by the Immigration Courts go uncorrected as the applicants are unable to pursue their cases to the Courts of Appeals or are “duressed” by DHS detention in substandard conditions into giving up viable claims.
Check out some of these denial rates by ten of Barr’s BIA appointees who previously served as Immigration Judges. Those judges are listed with their asylum denial rates, according to Syracuse University’s 2021 TRAC Reports:
Michael P. Baird (91.4%),
William A. Cassidy (99%),
V. Stuart Couch (93.3%),
Deborah K. Goodwin (91%),
Stephanie E. Gorman (92%),
Keith Hunsucker (85%),
Sunita Mahtabfar (98.7%),
Philip J. Montante, Jr. (96.3%),
Kevin W. Riley (90.4%),
Earle B. Wilson (98.2%)
Gee, these guys make even the artificially high nationwide asylum denial rates (76%) resulting from Trump’s all-out assault on due process and the rule of law look low by comparison! Gosh, only one of these Dudes was even within 10% (just barely) of that already outrageously high, artificially “reverse engineered” national denial rate.
Yet, inexplicably, these virulently anti-asylum judges continue to serve and negatively shape asylum law under Garland! Even “pre-Trump,” most of them avoided granting any asylum, in the face of precedents supposedly requiring generous application of the law in accordance with U.N. guidance and recognizing gender-based persecution as real.
So, it’s little surprise that no meaningful positive guidance or helpful interpretation has come from Garland’s BIA that might lead to expedited and consistent asylum grants to the many meritorious asylum cases now buried in his burgeoning 1.6 million case Immigration Court backlog! No wonder civil rights, human rights, equal justice, and Constitutional law experts consider Garland to be a failure as AG!
To date, Garland has appointed only one BIA Appellate Judge out of 21! That was to fill an existing vacancy. Judge Andrea Saenz is a superbly qualified asylum expert with scholarly credentials, “real life” experience representing asylum seekers in Immigration Court, clerking experience in those courts, and proven intellectual and practical leadership capabilities.
But, we need a “BIA of Judge Saenzes” — like yesterday! The talent is out there! But, Garland and his lieutenants have been too dilatory, tone deaf, and shockingly indifferent to these glaring due process, expertise, and racial justice issues to bring in the qualified judges and judicial administrators to fix his unjust, unfair, and grotesquely inefficient “courts.” Thus, the dysfunction grows, festers, and eventually destroys, maims, and kills! Is this really an appropriate “legacy” for a Dem Administration?
Today, in a WashPost OpEd, Krish O’Mara Vignarajah, President & CEO of Lutheran Immigration and Refugee Service, points out:
Why are members of this outrageous “protection deniers’ club” still on Garland’s broken and biased Immigration Court bench? You don’t have to be a human rights scholar or Constitutional law expert to see that there is something seriously wrong here that Garland is sweeping under the rug!
Yes, the best answer is an independent Article I Immigration Court, free from the mismanagement and political shenanigans of the DOJ, with a merit-based selection system for judges. But, that doesn’t absolve Garland from the responsibility to fix the existing system NOW before more lives are lost, futures ruined, and American justice irretrievably degraded!
The current racially discriminatory, scofflaw, patently unjust parody of a “court” system being run by Garland is as unacceptable as it is immoral!
Garland and Mayorkas have allowed this approach to asylum seekers to flourish on their watch. That raises serious questions about their suitability for their current positions! Albrecht Dürer, Public domain, via Wikimedia Commons
“Interim Regulations” Aren’t The Answer!
Today, the Biden Administration released new “Interim Asylum Regulations” that appear designed to fail. https://public-inspection.federalregister.gov/2022-06148.pdf. That’s because they don’t address the real competency, leadership, and legal problems plaguing the current system!
I won’t claim to have waded through every word of this entire 512-page mishmash of largely impenetrable bureaucratic gobbledygook. But, I can see it’s more tone-deaf micromanagement of the Immigration Court, along with the usual, arbitrary and capricious, unrealistic “off the wall” “time limits” that are guaranteed to make things worse, not better. It’s basically more of Garland’s “Aimless Docket Reshuffling” and his “Treadmill for Immigration Attorneys” that have already helped fuel unprecedented backlogs amidst wildly inconsistent results and a steady stream of life-threatening errors from his dysfunctional “courts.”
As if the answer to a poorly functioning, hopelessly self-backlogged, incompetent, biased, and unfair system is to “speed it up!” Come on, man! That suggests, quite incorrectly, that the primary problems in our asylum system are something other than lack of competence, integrity, expertise, and leadership at DHS and DOJ!
In reality, Garland’s defective “assembly line justice” at EOIR is already cutting so many corners and being so careless and “denial focused” that a steady stream of elementary legal errors show up in the Courts of Appeals every week. How is speeding up an already unfair and error plagued system going to make it better?
The real answer is to move the many grantable asylum cases that pass credible fear through the system correctly, fairly, on a reasonable, timely, predictable basis, with representation. That requires more and better trained Asylum Officers; different, better Immigration Judges who know how to recognize and grant asylum and keep the parties moving through the system; a new BIA of practical scholars who are due-process-oriented human rights experts to set favorable, practical asylum and procedural precedents and to keep IJs, AOs, and counsel for both sides in line; and close cooperation and advance coordination with the private bar and NGOs to insure representation of all asylum seekers.
This “interim regulation” avoids and obfuscates the necessary personnel replacement, attitude adjustment, and changes to the “culture of denial and deterrence” required in the Executive Branch for our asylum system to work! I predict colossal failure!
Get ready to litigate, NDPA! This is an “in your face,” largely unilateral, insulting approach. Rather than respecting your expertise, dedication, abilities, and counsel in fundamentally changing this system, Mayorkas and Garland intend arrogantly to “shove it down your throats and the throats of asylum seekers” with their inferior personnel, a toxic culture of denial, bad attitudes, and poor lawyering! Accept the challenge to resist!`
Sens. Susan Collins and Kyrsten Sinema, D-Ariz., introduced legislation Thursday to shorten the waiting period before asylum seekers are allowed to receive work authorizations.
The bill, co-sponsored by Sen. Angus King, would reduce the waiting period for work authorization eligibility to 30 days after an application for asylum is filed. It comes shortly after Rep. Chellie Pingree introduced a similar proposal in the House.
“The law currently prohibits asylum seekers from working for extended periods of time, which prevents them from supporting themselves and their families as they want to do. It also inadvertently places the burden of care on states and municipalities,” Collins, a Republican, said in a news release.
The bill comes as Maine is seeing an influx of asylum seekers to Portland, many of whom are being housed in hotels paid for with state and federal funds because of a lack of shelter space and available housing. For the week ending Feb. 5, Portland was housing 189 families, a total of 639 people, in hotels.
“Our bipartisan legislation would permit these individuals to work and contribute to the local economy while their asylum claims are being adjudicated,” Collins said. “This commonsense bill would help cities like Portland and their partners in the nonprofit community that are currently caring for a large number of asylum seekers.”
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Read the rest of Rachel’s report at the link. Notably, Senator Krysten Sinema (D-AZ) was also one of the sponsors.
As Senator King says:“Maine has always welcomed asylum seekers, who have made our communities stronger and richer – but current federal laws are blocking these people from pursuing a job to help them support their families and contribute to their local economies!”
Fixing it should have been “Day 1 Low Hanging Fruit” for the Biden Administration. After all, these are simple mostly “no-brainer adjudications” — such that they can barely be called “adjudications” at all. Basically, they require computerized records checks that most high school students probably could be trained to do efficiently in a few days. For example, the “adjudication” of an extension of work authorization is estimated to take about 12 minutes.
I’m old enough to remember the days “before the dreaded EAD” at the “Legacy INS.” Upon filing certain applications with the District Office, the officer simply stamped “Employment Authorized” on the individual’s paper I-94 card or in the passport and returned it to theapplicant on the spot. It wasn’t perfect, but it worked and was reasonably prompt, practical, functional, and inexpensive to administer.
Now, there are 31 pages of instructions for filing an Application for Employment Authorization on Form I-765. Many categories require a rather bloated $410 filling fee and others require an $85 “biometrics fee,” thus making “EAD” issuance and renewal a “profit center” for supposedly largely self-supporting USCIS adjudications.
The only things missing from this “new improved process:” common sense, competence, efficiency, and, most of all, public service, despite Director Jaddou’s recent rewrite of the USCIS mission statement. I wish she’d spend less time thinking and talking about “public service” and more effort fixing the fairly obvious problems interfering with the actual daily delivery of public service by USCIS.
New arrivals in South Portland schools bring challenges and joy
With asylum seekers arriving in Portland housed in South Portland hotels, South Portland schools gear up for more English language learners and celebrate the excitement they bring.
Divine Nsimba Lukombo 12, left, an 8th grader from the Democratic Republic of Congo, and 7th grader Odett Mavezo Junizi 12, also from the Congo, work together in a science class at South Portland’s Memorial Middle School.
When classes started this year at Memorial Middle School in South Portland, there was just one humanities class for students beginning to learn English. Now there are three.
The school has rearranged the schedules of English language teachers, added an additional part-time English language teacher and upped the hours of a second teacher.
It has limited new enrollments because it has no more space and is relying on the middle school on the other side of the city to absorb any additional students who come into the district.
“We’re just supporting way more kids in those English language learning classes,” said Principal Rebecca Stern.
The changes are necessary because the school district is seeing an influx of English language learner students driven by the arrival of asylum seekers from African countries. It’s hard to know exactly how many of the students are asylum seekers, but officials in South Portland say the increases they’re seeing stem from the placement of many asylum-seeking families in emergency shelter in local hotels.
Since the start of the school year, the South Portland School Department has served 305 homeless students. That’s up from 180 last school year and just 34 in 2019-20. The school system has 522 English language learner students, compared to 328 last year. And overall enrollment now is at 3,021 students, up from 2,887 in October.
English Language Learner teacher Kara Kralik works with students at Memorial Middle School in South Portland last week. Shawn Patrick Ouellette/Staff Photographer
South Portland is one of five communities where the city of Portland is placing asylum seekers in hotels because of a shortage of shelter space and housing.
Portland officials reported earlier this month that new arrivals had driven the highest ever nightly averages of people in need of shelter. In the first three weeks of January, 39 families needing shelter arrived in Portland – about one-third the number the city saw in all of 2020.
School officials in Portland and some surrounding communities like Old Orchard Beach and Brunswick, which are currently housing asylum seekers or have in the past, said they aren’t seeing increases in new students. Freeport, which is housing some new arrivals from Portland, has seen a small one.
“I would argue that right now we are the most impacted school district in the state when it comes to new families, many of whom do not speak English and are housing vulnerable,” said South Portland Superintendent Tim Matheney.
Schools across the district – from elementary to high school – have mobilized to welcome the newcomers. Most come from Angola and the Democratic Republic of Congo and have spent months or even years traveling to the United States to escape violence or instability in their home countries. And many have missed long periods of school as a result.
Teaching the students English, enrolling them in classes and making sure basic needs such as housing, food and warm clothing are being met present challenges. Schools need to hire more staff – English language teachers, social workers.
But the new students are making their schools far more diverse and filling them with excitement during a challenging year.
“In America right now, as we go through the pandemic and how education looks post-pandemic, people are really sad,” said South Portland High School Principal Michele LaForge. “The anxiety of our students and our staff is really high. This has been a really hard time and it continues to be hard.
“Our new Mainers, in a lot of ways, the hardest thing they’ve ever experienced is behind them. So there’s this energy around these new students. They’re just so delighted to be here. They’re never absent. They’re excited every second of every day.”
FILLING IN THE LEARNING GAPS
At Memorial Middle School on a recent morning, English language learner teacher Elizabeth Dawson worked with a dozen students in a math class for newcomers. Just the week before, Dawson had been assigned a new sixth-grade student who hadn’t been in school for five years. She said it’s not unusual for students to have large gaps in their education, and it’s her job to catch them up.
“In all of our classes we have this philosophy of addressing language skills and gaps, but we also know these students are 14,” Dawson said. “They’re cognitively and developmentally middle school students, so we also need to make sure our content is challenging them on a seventh-grade level.”
Tanya Nsumu, 12, left, originally from the Democratic Republic of Congo works with Maria Bikuma, 14, from Angola during math class last week at Memorial Middle School in South Portland where there is an influx of asylum-seeking students. Shawn Patrick Ouellette/Staff Photographer
Maria Bikuma and Tanya Nsumu, two students in Dawson’s class, sat in the back munching on breakfast as their teacher led them in a word problem that everyone read aloud together. Bikuma, who is from Angola and arrived in Maine over the summer, said she is enjoying making new friends and being in school.
“I like America because it’s a good country,” said the eighth-grader. “I can study here and the teachers are good.”
Because she speaks English well, Bikuma often acts as a translator between teachers and her fellow students who are new to the country and whose first language is most often Portuguese or French. She said the teachers are patient and more involved in helping students than in Angola, where students were more self-directed.
“People understand quickly because the teachers explain very good,” Bikuma said.
Nsumu also arrived over the summer, from the Democratic Republic of Congo. She left her home country when she was just 6 years old and spent time in South America, Mexico and Texas. When she arrived in Maine, she spoke no English, though that has quickly changed.
“Here is different because I have a new teacher that teaches good,” said the seventh-grader. “I have an iPad. I have a new life.”
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Read the rest of Rachel’s article at the link.
When I was a judge, I was often inspired by the amazing young people who came before me. Some of them had literally walked to the US, on perilous journeys, encountering unimaginable, sometimes unspeakable, hardships and trauma.
Their courage, life skills, and problem solving abilities were truly remarkable. Once here, many were helping their families while going to school and assisting their lawyers with their cases. Some were also involved in sports, music, or other extracurricular activities. (When I heard applause from my colleague Judge John Milo Bryant’s courtroom, I knew that was for another student-athlete or academic achievement.)
I often could see both English language proficiency and school grades improve from one court appearance to another. I invariably asked students about their progress in school. Many brought report cards to the next hearing to show me how they were doing.
I always told kids that no matter how their cases eventually came out, their education was theirs for life. So, I challenged them to take full advantage. And, most appeared to do so!
I saw some of them literally grow up and come of age in court and go on to contribute to our country and our communities while continuing to take outsized responsibilities for families. Many came from homes where the parents were both working two jobs to help forge better lives for their children.
Many of these cases eventually had happy endings. When they did, I always encouraged the younger generation to pay it back by helping their parents and insuring that they had the time, encouragement, and support to meet the requirements for naturalization so that they could become full participants in their communities and our nation.
Gillian Graham reports for the Portland Press Herald:
During the five years Betsy Paz-Gyimesi has been working as an interpreter and engagement specialist for Spanish-speaking families in Portland schools, she has seen the same scene play out many times.
When they go for help to a food pantry, they’re offered food they will not eat. Some are afraid of canned foods because they believe they are dangerous. Others have cultural or religious needs that aren’t met by the American items on the pantry shelves.
Most of the families Paz-Gyimesi works with come from Central America, and they don’t all qualify for benefits through the Supplemental Nutrition Assistance Program, Temporary Assistance for Needy Families and other similar programs. Because there are few options for them at the food pantry, their children often rely heavily on schools for meals, Paz-Gyimesi said.
But that will begin to change next month as Wayside Food Programs in Portland launches a pilot program to better address food insecurity in immigrant communities by providing food packs customized to the needs and preferences of those receiving emergency assistance.
Working with leaders of immigrant communities, Wayside developed lists of basic pantry items they commonly use and a guide to their specific food preferences that can be used by other food programs, said Mary Zwolinski, Wayside’s executive director.
“Our hope is that it helps with the issue of food equity,” she said.
The pandemic, which has disproportionately impacted Maine’s racial and ethnic minorities, laid bare that the state’s existing emergency food structure was not adequately serving all of their needs. Some of the people most vulnerable to hunger didn’t access existing food programs. When they did, many did not find food – Jasmine rice, dried fish, pork-free products – that fit their cultural, religious and dietary restrictions and preferences.
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Nice effort! Maine has been a bastion of community cooperation, creative encouragement of, and positive interaction with immigrant communities! Seems like a good model that can be replicated throughout America. Read the full article at the link!
Jobs are more plentiful and increasingly well-paying, but asylum seekers can’t work for at least six months, sometimes longer – a willing and able workforce sidelined. They also can’t qualify right away for federal assistance programs like food stamps.
Every so often, staff members hear rumblings from someone in the community who suggests that asylum seekers are being helped at the expense of others, which isn’t true.
“There isn’t anything offered to them that isn’t offered to anyone else who walks through our door,” Guthrie said. “If someone presents, we try to help them.”
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With chronic labor shortages, Maine has benefitted greatly from doing the right thing, setting a great, positive example that could and should be a model for other states. Helping everyone to realize their ambitions and reach their full human potential is the way forward!
Maine Voices: Afghan refugees should get the same welcome America gave me
The only thing that can save people escaping the cruelty of war is the kindness of strangers.
BY REZA JALALI SPECIAL TO THE PRESS HERALD
To be honest, no one chooses to be a refugee.
Nobody wakes up one morning and decides to leave everything familiar behind, including their loved ones, to live in limbo for years, without valid papers, hoping a country would offer to resettle them. I did not.
ABOUT THE AUTHOR
Reza Jalali is the executive director of the Greater Portland Immigrant Welcome Center. His latest book, “Dear Maine: The Trials and Triumphs of Maine’s 21st Century Immigrants,” co-written with Morgan Rielly, will be out soon.
Fresh out of college, I was planning to return to Iran, where I was born, to reunite with my family when the 1979 Islamic Revolution, followed by the war with neighboring Iraq, caused turmoil there. These events made me a stateless person, with no country to which I could return.
Years earlier, I had gone to India, to study engineering; I was innocent of the world’s cruelty and life was mostly peaceful and good. Once the United Nations High Commissioner for Refugees in India, provided me with the refugee status, I applied for admission to the United States, as a refugee. Without a sponsor or a relative in America, I was sent to Portland for resettlement.
When I got to Portland, my new “home,” it felt like a sweet dream. To my tired eyes, the electric light seemed brighter and the sky looked bluer. Kind strangers offered housing, rides, and assistance to find a job. With hope, and faith in America, tucked away in my heart, where no personal doubt, or hostile looks could reach and touch, I started to build a new life. Like many others, I believed then, and still do, that America’s strength has been its willingness to add more chairs to the proverbial table.
My story, far from being unique, represents a reality in a world that is broken and re-broken now and again. The world is a dangerous place for the innocent civilians, including women and children. Today, there are some 80 million refugees, displaced internally or pushed out of their countries of birth. According to UNHCR “every minute 20 people leave everything behind to escape war, persecution or terror.”
Calamities, such as the one unfolding in Afghanistan now, after its sudden fall to the Taliban, show how chaotic our world is. Refugees are the byproduct of wars. It’d help if those against helping refugees were to oppose invasions and our government’s support for ruthless dictators, for the sake of access to cheap energy and national security.
Refugees, by their mere presence, in our communities, even when invisible to some, tell the stories of courage and human resilience. They also remind us of the cruelty of human beings at times of conflict and yet the kindness and compassion of strangers in receiving and helping them to feel safe and a chance to start new lives.
Across cities in the U.S. and in Maine, refugees, asylum seekers, migrant workers and immigrants are building, repairing, healing, teaching, growing food, creating art and so on. They are adding to the richness of the symphony we call America. And that is the central plot of the American story, for unless you come from a Native American tribe, you are either an immigrant, or were stolen in Africa and brought to America, as a slave.
In the weeks to come, as a former refugee, I will be unfurling the welcome mat and keeping open the same door, that let me and others before me in, for the expected Afghan refugees, many of whom had risked their lives helping Americans fighting in Afghanistan. Here at the Greater Portland Immigrant Welcome Center, in partnership with other nonprofits and others, we will offer a helping hand by teaching the Afghan refugees English remotely and supporting them to enter the workforce, when they are ready. As proper hosts, that’s the least we could do: small acts of love done for the sake of repairing our broken world.
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As CMS studies have proved over and over, refugees of all types are a huge benefit to our nation! But, that’s really “icing on the cake.” Even if refugees weren’t such a great economic benefit, that wouldn’t lessen our obligations to save them and give them shelter.
In the Afghan situation, our obligations ar increased by our involvement in their country.
Heather Cox Richardson Historian Professor, Boston CollegeFrances Perkins (1880-1965) U.S. Secretary of Labor (1933-45) PHOTO: Public realm
From “Letters From An American:”
September 5, 2021
By Heather Cox Richardson
On March 25, 1911, Frances Perkins was visiting with a friend who lived near Washington Square in New York City when they heard fire engines and people screaming. They rushed out to the street to see what the trouble was. A fire had broken out in a garment factory on the upper floors of a building on Washington Square, and the blaze ripped through the lint in the air. The only way out was down the elevator, which had been abandoned at the base of its shaft, or through an exit to the roof. But the factory owner had locked the roof exit that day because, he later testified, he was worried some of his workers might steal some of the blouses they were making.
“The people had just begun to jump when we got there,” Perkins later recalled. “They had been holding until that time, standing in the windowsills, being crowded by others behind them, the fire pressing closer and closer, the smoke closer and closer. Finally the men were trying to get out this thing that the firemen carry with them, a net to catch people if they do jump, the[y] were trying to get that out and they couldn’t wait any longer. They began to jump. The… weight of the bodies was so great, at the speed at which they were traveling that they broke through the net. Every one of them was killed, everybody who jumped was killed. It was a horrifying spectacle.”
By the time the Triangle Shirtwaist Fire was out, 147 young people were dead, either from their fall from the factory windows or from smoke inhalation.
Perkins had few illusions about industrial America: she had worked in a settlement house in an impoverished immigrant neighborhood in Chicago and was the head of the New York office of the National Consumers League, urging consumers to use their buying power to demand better conditions and wages for workers. But even she was shocked by the scene she witnessed on March 25.
By the next day, New Yorkers were gathering to talk about what had happened on their watch. “I can’t begin to tell you how disturbed the people were everywhere,” Perkins said. “It was as though we had all done something wrong. It shouldn’t have been. We were sorry…. We didn’t want it that way. We hadn’t intended to have 147 girls and boys killed in a factory. It was a terrible thing for the people of the City of New York and the State of New York to face.”
The Democratic majority leader in the New York legislature, Al Smith—who would a few years later go on to four terms as New York governor and become the Democratic presidential nominee in 1928—went to visit the families of the dead to express his sympathy and his grief. “It was a human, decent, natural thing to do,” Perkins said, “and it was a sight he never forgot. It burned it into his mind. He also got to the morgue, I remember, at just the time when the survivors were being allowed to sort out the dead and see who was theirs and who could be recognized. He went along with a number of others to the morgue to support and help, you know, the old father or the sorrowing sister, do her terrible picking out.”
“This was the kind of shock that we all had,” Perkins remembered.
The next Sunday, concerned New Yorkers met at the Metropolitan Opera House with the conviction that “something must be done. We’ve got to turn this into some kind of victory, some kind of constructive action….” One man contributed $25,000 to fund citizens’ action to “make sure that this kind of thing can never happen again.”
The gathering appointed a committee, which asked the legislature to create a bipartisan commission to figure out how to improve fire safety in factories. For four years, Frances Perkins was their chief investigator.
She later explained that although their mission was to stop factory fires, “we went on and kept expanding the function of the commission ’till it came to be the report on sanitary conditions and to provide for their removal and to report all kinds of unsafe conditions and then to report all kinds of human conditions that were unfavorable to the employees, including long hours, including low wages, including the labor of children, including the overwork of women, including homework put out by the factories to be taken home by the women. It included almost everything you could think of that had been in agitation for years. We were authorized to investigate and report and recommend action on all these subjects.”
And they did. Al Smith was the speaker of the house when they published their report, and soon would become governor. Much of what the commission recommended became law.
Perkins later mused that perhaps the new legislation to protect workers had in some way paid the debt society owed to the young people, dead at the Triangle Shirtwaist Fire. “The extent to which this legislation in New York marked a change in American political attitudes and policies toward social responsibility can scarcely be overrated,” she said. “It was, I am convinced, a turning point.”
But she was not done. In 1919, over the fervent objections of men, Governor Smith appointed Perkins to the New York State Industrial Commission to help weed out the corruption that was weakening the new laws. She continued to be one of his closest advisers on labor issues. In 1929, when Franklin Delano Roosevelt replaced Smith as New York governor, he appointed Perkins to oversee the state’s labor department as the Depression worsened. When President Herbert Hoover claimed that unemployment was ending, Perkins made national news when she repeatedly called him out with figures proving the opposite and said his “misleading statements” were “cruel and irresponsible.” She began to work with leaders from other states to figure out how to protect workers and promote employment by working together.
In 1933, after the people had rejected Hoover’s plan to let the Depression burn itself out, President-elect Roosevelt asked Perkins to serve as Secretary of Labor in his administration. She accepted only on the condition that he back her goals: unemployment insurance; health insurance; old-age insurance, a 40-hour work week; a minimum wage; and abolition of child labor. She later recalled: “I remember he looked so startled, and he said, ‘Well, do you think it can be done?’”
She promised to find out.
Once in office, Perkins was a driving force behind the administration’s massive investment in public works projects to get people back to work. She urged the government to spend $3.3 billion on schools, roads, housing, and post offices. Those projects employed more than a million people in 1934.
In 1935, FDR signed the Social Security Act, providing ordinary Americans with unemployment insurance; aid to homeless, dependent, and neglected children; funds to promote maternal and child welfare; and public health services.
In 1938, Congress passed the Fair Labor Standards Act, which established a minimum wage and maximum hours. It banned child labor.
Frances Perkins, and all those who worked with her, transformed the horror of the Triangle Shirtwaist Fire into the heart of our nation’s basic social safety net.
“There is always a large horizon…. There is much to be done,” Perkins said. “It is up to you to contribute some small part to a program of human betterment for all time.”
Aftermath of the Triangle Shirtwaist Fire (1911) ILGWU Archives Public Realm
Get more from HCR at the above link!
Perkins is one of the most important and under-recognized heroes of modern American history. Perkins believed that Government was there to promote the public good.
But, it wasn’t just a hollow slogan like those spouted by many of today’s politicos. She actually “walked the walk,” using her powerful intellect, energy, talent, advocacy skills, persistence, and influence with FDR to make America a much better place.
Just think of it: “unemployment insurance; health insurance; old-age insurance, a 40-hour work week; a minimum wage; and abolition of child labor.” An amazing list of accomplishments for which she has received far, far too little credit from historians. Today, most Americans probably think of Perkins, if at all, as the “first female Cabinet Secretary.” But she was more than that. Much more!
Perkins also used her position as Labor Secretary (prior to WW II the cabinet officer with responsibility for immigration) creatively in an attempt to save Jewish refugees from Nazi Germany. Although she won a major legal battle on the positive use of “charge bonds” to assist refugees, the actual effects of her humanitarian efforts appear to have been unfortunately limited.
In the xenophobic, anti-Semitic, isolationist America of the 1930s, she also became a target of the far right for her strong commitment to human rights. In 1939, Congressional xenophobes initiated an unsuccessful impeachment attempt.
In 1940, FDR transferred responsibility for immigration from the Labor Department to the Department of Justice. That spelled not only the end of Perkins’s efforts to help Jewish refugees, but also was a death sentence for many who might have been saved.
The DOJ threw up a powerful combination of restrictive requirements and bureaucracy to guarantee the death of more European Jews in the Holocaust. Indeed, the DOJ went one better by putting Japanese-American U.S. citizens in concentration camps based on “national security” claims that have since been shown to be both bogus and racially motivated. Sound familiar?
You can read all about this disgraceful chapter in American history and Perkins’s largely fruitless attempts to “swim against the tide” here, in this article by Rebecca Brenner Graham in Contingent Magazine: https://contingentmagazine.org/2019/08/23/no-refuge/.
Dr. Rebecca Brenner Graham Teacher, Author, Historian PHOTO: Rebeccabrennergraham.com
I really enjoyed Rebecca’s very lively, accessible historical writing that brings to life one of the ugliest episodes in modern American history, now largely swept under the carpet by today’s nativist revisionists. It’s also covered in the a Holocaust museum, an exhibit that contains much of the same bogus “America is full” xenophobic rhetoric spouted by too many of today’s GOP nativists.
This really horrible response by Western democracies to lives in peril was what gave rise to the Geneva Refugee Convention, the basis for the Refugee Act of 1980 and our current refugee and asylum system! How quickly we forget! The Trump Administration, with help from the Supremes, basically abrogated the legal system for refugees and asylees, without legislation. Despite promises to restore the rule of law, the Biden Administration has basically allowed most of Trump’s illegal and immoral policies to continue damaging humanity and diminishing us as a nation.
What would Frances Perkins have done? Certainly more than Garland and Mayorkas! At any rate, I enjoyed Rebecca’s historical writing and look forward to more!
A few years ago, Cathy and I had the pleasure of touring the Perkins Family Homestead, near Damariscotta, Maine, now owned by the Frances Perkins Center, with our dear, now departed Boothbay Harbor neighbor Sue Bazinet. It certainly opened my eyes to what true progressive values, lived and acted upon, were and still are!
Frances Perkins Homestead Damariscotta, ME PHOTO: Francis Perkins Center
We could use more leaders like Perkins today! Many thanks to the always-fabulous HCR for highlighting this great American!
The folks saving this Maine industry and making America proud are mostly asylees from Africa. Something to remember and reflect upon the next time you hear GOP “magamorons” and White Nationalist racist nativists claim that legal asylum seekers are a “problem,” rather than a key part of the solution! Indeed, the “problem” appears to be with the GOP White Nationalist restrictionists and nativists!
I’ve personally seen how immigrants of all kinds from all places have rejuvenated Maine with their hard work, culture, adaptability, and energy. Whether it’s the checkout person at the local grocery store, the folks who run the best carry-out in town with the brilliant daughter, or the helpful associate at L.L. Bean, immigrants are a key part of what makes Maine a great place to visit or live.
Let’s Hope That A New Day Is Dawning , Fueled by Immigrants, For Maine & America After 4 Years of Unrelenting Darkness. The Biden Administration Must Help By Re-establishing Our Legal Asylum Program!
Maine Voices: New U.S. intelligence report suggests how Maine can address global trends
We’re in a good position to improve the lives of people without college degrees, to welcome foreigners to a democratic society and to diversify our workforce.
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The Global Trends report provides analysis but not policy solutions. Maine could assist by demonstrating that democracy can work here by taking steps to bridge the ideological divide and reduce political polarization. Maine can become a welcoming state for immigrants by easing their entry into the workforce to replace our retiring baby boomers.
Maine can also develop public-private partnerships to teach workforce skills that raise incomes and improve the quality of life for those without a college degree. Finally, Maine can exercise soft power by welcoming foreigners as tourists and recruiting students from China to our high schools and universities, offering an opportunity to experience a democratic society with both its flaws and freedoms, and to forge friendships between the two contested countries.
Joseph W. McDonnell is a professor of public policy and management at the Edmund S. Muskie School of Public Service at the University of Southern Maine
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You can read Professor McDonnell’s article (along with a couple of comments that show exactly why our hope for the future has to be in immigrants — not that the commenters probably weren’t immigrants of some sort at some point in our history).
B/T/W Congresswoman Omar (D-MN) is a naturalized U.S. citizen — an example of someone who not only immigrated, survived racial and religious bigotry and bullying in school, graduated from college, established a successful career as an educator and civic advocate, and further had the courage and commitment (which most native-born Americans, including me, do not) to successfully seek elective office and work through the system to make America a better place for all, regardless of whether or not one agrees with all of her views.
The vast majority of immigrants of any status “learn the language” (many better than some native-born U.S. citizens) and become at least bi-lingual if not tri-lingual, a skill set that few native-born Americans achieve.
Of course, in an intentionally diverse society, important Government documents should be printed in languages that individuals are most comfortable with. You might have become proficient in French in college, but if involved in a legal dispute in France, most of us would need and expect an English translation to be sure we understood and, in turn, were understood.
I knew enough German to study in Germany during college. I was comfortable going down to the local watering spot and ordering “bauernbrat mit kraut und bier.” But, if I had been involved in a legal proceeding, I wouldn’t have dared to proceed in German.
Also, although undoubtedly some students and foreign workers are exploited by the American system, overall they make huge contributions to both education and our workforce. As an Adjunct Professor at Georgetown Law, my classes are continually enriched by the presence of foreign students and scholars, many of whom are willing to share their own immigration stories and to enlighten us on the culture and legal system they experienced.
Also, if we have learned anything during the pandemic, it is how very dependent we are on our immigrant and ethnic communities, regardless of “status,” for essential workers. The “exploitation” is an “American home grown problem,” not one caused by immigrants! As a society, we need to stop “shooting the messenger!”
Where we spend much of our summers, Boothbay Harbor in the “Mid-Coast Region of Maine,” the tourism, hospitality, recreational, and resort industries that power this town are highly dependent on talented foreign workers. Their upbeat attitudes, eagerness to learn and contribute, and fascinating multiculturalism is one of the primary factors that comes bursting out in town and throughout this area, making this one of the best summer tourist locations in America. (Obviously, it’s “world famous,” since these folks seek to come here from literally around the world.)
Our “next-door neighbors,” here on beautiful Linekin Bay, Larry and Janey Anderson, were long time year around residents of Maine before retiring to “warmer climes” near their family (and us) in Northern Virginia. They were very involved with the African refugee community in Southern Maine, calling me several times for advice on how to get legal help on asylum cases. I well remember on occasions hearing the rhythm of a “drum circle” in which Larry participated with his refugee friends coming from the Anderson cabin.
It actually made me feel good about the lives I had been able to save and the positive progressive legal changes, precedents, and attitudes that I was able to help, at least in some modest way, forge over a 40+ year career in immigration and human rights, most of it with the U.S. Government.
Of course, I was fortunate enough to have retired in 2016, before the institutionalized White Nationalist, racist, misogynistic, xenophobia of the Trump regime arrived. Unfortunately, they undid some of the hard work that many of us had done to improve the system, further due process, and insure fairness and humane treatment for foreign nationals under U.S. laws.
The folks we welcomed under the law, their families, and their descendants continue to make America great despite all the destructive actions and false, misleading hate rhetoric promoted by Tump and his party.
Now, it’s up to the “new generation” of the NDPA to seize the baton and lead the fight to assist migrants of all types in creating a new and better day for Maine, America, and the world! I actually just had inspiring conversations this week with “two of the best out there” in the private/NGO sectors who are competing for positions at EOIR to help return due process, efficiency, practicality, and humanity to a disgracefully dysfunctional and unfair system. These are the folks who are “inspiring a new day for America.” They have already got Professor McDonnell’s message and are working to make it a reality!
President-elect Joe Biden, who pledged to serve all Americans, can respond boldly to address the needs of large swaths of rural America where people feel left behind. In the first 100 days of his administration, he can prove that he wants to see real change and will act to secure broader prosperity.
Drawing on more than 20 years of working in communities across four rural states, we see actionable, specific opportunities for Biden to make federal policy work for rural places. Here’s what we recommend:
• Engage in genuine conversations in rural places about the role of the federal government. The pandemic aside, fundamental economic changes, limited career pathways and crumbling (or non-existent) infrastructure plague many rural places. These challenges require public-private partnerships, directed by local needs and leadership. Many of the federal programs designed to address the underlying issues in rural places fail because they were designed for the rural reality of 1960, not of today. Let’s get current, understand why programs aren’t working and make them better.
• Elevate rural to the level it deserves in the president’s Cabinet. Rural places are currently served through a web of programs spread across numerous federal agencies. One might think this approach would help address policy deficiencies, but in fact, when everyone is in charge, no one is. The Biden administration can send a strong message that it means business by putting someone clearly in charge of its rural agenda and creating a new Department of Rural Development dedicated to improving, centralizing, and deploying the support and services necessary for rural people and places to thrive.
• Invest in doing economic development differently in rural places. Federal employees work diligently on their mission, providing grants and other services to constituents as directed by statute. And yet, the available tools for solving complicated, systemic and immediate issues are limited. To do economic development differently – and better – we need to eliminate programs that have limited utility, expand others that focus on building capacity in rural places, increase the flexible application of federal dollars and move the measurement of economic development outcomes beyond one-dimensional (and fleeting) metrics like job creation.
• Focus on and communicate about rural-urban connections rather than the divide. Rural places don’t benefit from being talked about as a monolith, a backwater or fly-over country. Rather, we as a nation need to raise up narratives and policies that recognize differences in rural places across the country, and that celebrate and support the natural, community, and economic assets that define those communities and their relationship to nearby urban areas. The stereotype of the American dream is changing. We now have a tapestry of rural, suburban and urban, and an opportunity to focus on collective prosperity rather than competition, exclusion and negative trade-offs.
The first hundred days will show how the Biden presidency will serve all Americans. Yes, there is a pandemic raging, but the widening gulf between rural and urban, rich and poor, red and blue requires a new tone, a new path and new solutions. Let’s get to it.
Rob Riley is president of the Northern Forest Center, a regional innovation and investment partner that creates rural vibrancy across Maine, New Hampshire, Vermont and New York. The center co-founded the national Rural Development Innovation Group with the Aspen Institute and the U.S. Endowment for Forestry & Communities.
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Read Rob’s full article at the link.
These are great, and timely ideas. They also present an outstanding opportunity to use the power of immigration to make our country a better place for everyone.
Immigrant entrepreneurs, small businesspeople, and investors can pool their ideas, skills, and resources with rural communities. Innovative rural Americans can help redesign and tailor methods that have worked in other countries for the American situation.
Immigrants with experience in agriculture and product marketing can help alleviate some of the labor shortages in rural areas.
Immigrants with tech skills can partner with rural Americans to help insure that, rather than sometimes being left behind, rural areas are on the cutting edge of accessible, high speed, state of the art technology that will integrate many educational and commercial activities with those now centered in “urban hubs.” (For example, why couldn’t a high tech area in rural America where land and housing are cheaper and a skilled (or highly motivated and trainable) workforce is eager for work be just as effective as Crystal City, VA as the next big tech hub?)
Immigrants with health service backgrounds can assist even more rural communities in insuring that first-class healthcare (and the jobs and economic opportunities it creates) is available everywhere in America.
My experience is that immigrants of all types, like rural Americans, highly value education, particularly for future generations. Innovative educational programs can be developed to meet the common needs of immigrant and rural communities.
There are just a few of the opportunities that come to mind. Obviously, I’m not a labor economist. But, I’m sure that if immigrant advocates concentrate on ways to actively engage and integrate immigrants into solving problems and improving the quality of life in rural and small-town America there are many other great opportunities for success out there just waiting to be tapped.
Immigrants have always been “part of the solution” rather than “part of the problem” in America. After four years of counterproductive unrestrained bigotry, false narratives, and hate-driven lies, its time for “truth, justice, and the American way” to come to the forefront again.
From “Letters From An American:”
