"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt and Dr. Alicia Triche, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
Michelle N. Mendez, ESQ Director of Legal Resources and Training National Immigration Project, National Lawyers Guild PHOTO: NIPNLGVictoria Neilson NDPA SUPERSTAR ATTORNEY PHOTO: CLINIC
Michelle writes:
The American Immigration Lawyers Association has just released its first ever book on immigration court trial skills. The book is authored by my colleague Victoria Neilson and myself, and was reviewed by several retired immigration judges, including the Hon. Dana Leigh Marks. It grew out of a collaboration between the National Immigration Project and the National Institute for Trial Advocacy, through which we have been providing intensive trial skills training courses in the context of immigration court for several years.
We hope the book will become a go-to resource for immigrant defenders as they prepare for individual hearings and think through rules of evidence, trial strategy, and best practices for questioning, objections, closing arguments, and more.
The book is available for purchase as an e-book or print book. It will also be posted on AILALink in a couple of months.
What an important and monumental contribution to “practical scholarship!”
I look forward to appearing with Michelle on an Immigration Court practice panel with Aimee Mayer-Salens & Sarah Owings at AILA New England in Boston this Friday, Nov. 8!
As predicted by experts from the “git go,” AG Merrick Garland’s indolent, half-baked approach to his most important responsibility — bringing justice and functionality to his Immigration Courts, has been a disastrous failure endangering our entire democracy! PHOTO: Thomas Hawk Creative Commons Amateur Night
Here’s the latest report from TRAC documenting how former Federal Judge Merrick Garland’s failure to fulfill his most important duty — reforming and fixing the U.S. Immigration Courts, has built backlog at record paces and undermined our democracy:
Here’s the “action plan” that’s been publicly available since July 2023 — “Rethinking The U.S. Immigration Court System” — yet largely, and disastrously ignored by Garland, his lieutenants, and the Biden Administration:
The U.S. immigration courts—and the nation’s immigration enforcement system they support—face
an unprecedented crisis. With a backlog of almost 2 million cases, it often takes years to decide cases. Moreover, the recent growth in the caseload is daunting. In fiscal year (FY) 2022, immigration courts received approximately 708,000 new cases, which is 160,000 more than in any previous year. Such numbers, coupled with the courts’ resource constraints and decision-making processes, ensure that the court system will continue to lose ground.
For asylum cases, which now make up 40 percent
of the caseload, the breakdown is even more dire. Noncitizens wait an average of four years for a hearing on their asylum claims to be scheduled,
and longer for a final decision. Those eligible for protection are thus deprived of receiving it in a timely manner, while those denied asylum are unlikely
to be returned to their countries of origin, having
established family and community ties in the United
States during the intervening years. The combination
of years-long backlogs and unlikely returns lies at the
heart of our broken asylum system. That brokenness contributes to the pull factors driving today’s migration to the U.S.-Mexico border, thereby undermining the integrity of the asylum and immigration adjudicative systems, and immigration enforcement overall.
Many of the factors contributing to the dramatic rise in the courts’ caseload have deep and wide-reaching roots, from long-standing operational challenges in administering the courts to new crises in the Americas that have intensified both humanitarian protection needs and other migration pressures. The scale of these twin challenges has made it more urgent than ever to address them together. In the aftermath of lifting the pandemic-era border expulsion policy known as Title 42 in May 2023, the Biden administration is implementing wide-ranging new border policies and strategies that establish incentives and disincentives linking how migrants enter the United States with their access to the asylum system. But timely, fair decisions are also central to the success of this new regime.
While many other studies have outlined wholesale changes in the immigration court system that only Congress can enact, such legislative action seems unlikely, at least in the near term. Thus, this report calls
for changes that can be made by the Executive Office for Immigration Review (EOIR), the agency within the Department of Justice (DOJ) that houses the immigration courts, as it is presently organized. Because the immigration courts are administrative bodies, the executive branch has considerable latitude in determining their policies and procedures. The changes laid out in this report hold great potential to improve the courts’ performance and, in turn, enhance the effectiveness of the U.S. immigration system more broadly.
Some steps in this direction are already being taken. The Biden administration has streamlined certain important policies and procedures at EOIR. Nonetheless, these courts and the Board of Immigration Appeals
2 million
cases in the backlog
About 650
immigration judges nationwide
Less than 500
cases completed per judge in most recent years
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AT THE BREAKING POINT: RETHINKING THE U.S. IMMIGRATION COURT SYSTEM
(BIA), which reviews appeals from immigration court decisions, fall short of meeting the hallmarks of a well- functioning adjudicatory system: that decisions be accurate, efficiently made, consistent across both judges and jurisdictions, and accepted as fair by the public and the parties in the case.
Related issues of caseload quantity and decision quality have given rise to the difficulties EOIR is confronting. Under the Trump administration, the reopening of thousands of administratively closed cases and increased interior enforcement led to rising court caseloads. And since 2016, increased border crossings have accounted for growing numbers of new cases, many of them involving asylum claims.
Cases are also taking longer to complete. While pandemic-related restrictions played a role in this slowdown, case completion rates had in fact already been declining. In FY 2009, each immigration judge completed about 1,000 cases per year. By FY 2021, the completion rate had decreased to slightly more than 200 cases per year, even as the number of immigration judges grew. Thus, more judges alone are not the answer. Slow hiring, high turnover, and a lack of support staff have resulted in overwhelmed judges whose productivity has decreased as the backlog has grown.
Concerns about the quality of decision-making by immigration courts and the BIA have existed for decades. More than one in five immigration court decisions were appealed to the BIA in FY 2020, and appeals of BIA decisions have inundated the federal courts. Federal court opinions have pointed to errors of statutory interpretation and faulty reasoning when overturning decisions. Policy changes at
the BIA, ever-changing docket priorities from one
administration to the next, and some recent Supreme
Court directives have contributed to the diminished
adjudicative quality. Wide variances in case outcomes among immigration judges at the same court and across different courts around the country further point to quality concerns; for example, the rate at which individual immigration judges denied asylum claims ranged from 1 to 100 percent in FY 2017–22.
EOIR has increasingly turned to technology to manage its dockets, primarily through video-conferencing court proceedings. The COVID-19 pandemic accelerated its use of internet-based hearings. Four important, yet at times competing, considerations are central when evaluating how technology—and particularly video-conferencing tools—are used in immigration proceedings: efficiency, the impact of technical difficulties, security issues, and concerns about due process.
The U.S. Immigration and Customs Enforcement (ICE) attorneys who prosecute removal cases also play an important role in the court system. Their use of prosecutorial discretion, along with judges’ docket management tools, help shape which cases flow through the system, and how.
Legal defense representation—or the lack of it—is a critical issue plaguing the immigration court system. Noncitizens in immigration proceedings, which are civil in nature, are not entitled to free legal counsel, as
The rate at which asylum claims are denied varies widely, from
1% with one judge to
100%
with another in FY 2017-22
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AT THE BREAKING POINT: RETHINKING THE U.S. IMMIGRATION COURT SYSTEM
defendants in criminal proceedings are. But they can face life-changing, and sometimes life-threatening, circumstances when subject to an order of removal from the United States. Studies have repeatedly found that representation in immigration proceedings improves due process and fair outcomes for noncitizens. It also improves efficiency, as represented noncitizens move more quickly through immigration court. Lawyers, accredited representatives, immigration help desks, and legal orientation programs aid some noncitizens through this process. But many more move through complex proceedings pro se (i.e., unrepresented).
Federal funding for representation of noncitizens in removal proceedings is effectively barred. Public funding at the state and local levels has increased the availability of representation for some noncitizens. A large share of representation is provided by nonprofit legal services organizations and pro bono law firm resources. Nonetheless, representation is fragmented and insufficient, given the scale of need.
One element of this system that has seen notable signs of change in recent years has been how border management feeds into the courts’ caseload. The Biden administration began implementing a new
asylum processing rule at the southwest border in June 2022 that aims to ease the growing pressures on immigration courts.1 The rule authorizes asylum officers, who are part of U.S. Citizenship and Immigration Services (USCIS) in the Department of Homeland Security (DHS), to make the final decision in asylum cases instead of immigration judges. Asylum seekers whose claims are denied by an asylum officer can still appeal the decision, but on an expedited timeline. As such, the rule holds the potential to reduce the growth of the immigration court backlog and shorten adjudication times to months instead of years.
Since lifting the Title 42 expulsion policy, the Biden administration has paused implementation of the asylum rule due to competing demands for asylum officer resources. But returning to the rule, and strengthening EOIR’s functioning overall, will be important for managing the flow of cases into the immigration courts and the courts’ ability to keep pace with them. Doing so depends on the court system using technology better, more strategically exercising discretion in removal proceedings, and increasing access to legal representation so that courts deliver decisions that are both timely and fair.
This report’s analysis of the issues facing the nation’s immigration courts and its recommendations for addressing them reflect research and conversations with a diverse group of stakeholders—legal service providers, immigration lawyers and advocates, current and former immigration judges, BIA members and administrators, academics, and other experts who have administered, practiced before, and studied the immigration court system. The report urges EOIR and DHS, in its role as the agency whose decisions and referrals come before EOIR, to work together to:
Strengthen the immigration court system’s management and efficiency
► Schedule new cases on a “last-in, first-decided” basis. Such a reset to the system, which has proven successful in the past, could bring processing times on new cases down to months, rather than years.
1 This rule draws in part on proposals made in an earlier Migration Policy Institute (MPI) report: Doris Meissner, Faye Hipsman, and T. Alexander Aleinikoff, The U.S. Asylum System in Crisis: Charting a Way Forward (Washington, DC: MPI, 2018).
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AT THE BREAKING POINT: RETHINKING THE U.S. IMMIGRATION COURT SYSTEM
Because this disadvantages cases that have already been waiting for a long time, it should be treated as a temporary, emergency measure alongside policy and procedural reforms that protect fairness and promote efficiency more broadly. Shifting resources back to adjudicating older cases, as timeliness is established with incoming cases, is essential for shrinking the growth and size of the backlog, which should be among the courts’ highest priorities.
► Terminate cases that do not meet the administration’s prosecutorial guidelines, which focus priorities on felons, security threats, and recent entrants. One approach to this would be to task ICE attorneys with triaging backlog cases to determine which could be fast-tracked for grants of relief or for removal. Such efforts would allow the courts and ICE attorneys to focus on more serious cases, especially those involving criminal charges.
► Centralize case referrals from DHS. Instead of the current practice of having all three DHS immigration agencies (ICE, USCIS, and U.S. Customs and Border Protection) refer cases separately to EOIR, ICE attorneys should initiate all cases. As de facto prosecutors, they are best positioned to determine the legal sufficiency and priority for moving cases the government has an interest in pursuing.
► Establish two tiers of immigration judges—magistrate and merits judges—modeled on existing state and federal court systems where judges and staff are assigned to different roles or dockets so that cases move through the adjudication system efficiently and expeditiously.
► Expand the use of specialized dockets or courts that handle cases involving specific groups of noncitizens or require certain subject matter expertise, such as juveniles, families, reviews of credible fear determinations, cancellation of removal, adjustment of status, and voluntary departure.Restart the asylum officer rule and provide the support needed to implement it
► Establish a dedicated docket for the asylum officer rule’s streamlined appeal proceedings. As the most far-reaching reform the Biden administration has introduced for strengthening management of the asylum and immigration court systems, implementing the rule effectively is key to reducing the pace of caseload growth in the court system and discouraging weak claims.
Upgrade how the courts use technology
► Ensure that technology is used to make immigration courts fairer for everyone involved, such as by holding hearings remotely when parties would be unable to attend an in-person hearing. Special attention should be paid to how the use of technology can affect detained noncitizens and vulnerable populations such as children.
Increase access to legal representation
► Establish a new unit within EOIR devoted to coordinating the agency’s efforts to expand representation. The unit should collaborate with nongovernmental stakeholders to make representation of detained noncitizens a priority and to allow partially accredited representatives— some of whom may be non-lawyers—to appear in immigration court for limited functions.
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AT THE BREAKING POINT: RETHINKING THE U.S. IMMIGRATION COURT SYSTEM
► Develop new and innovative ways to scale up representation by coordinating with lawyers who take responsibility for specific aspects of cases or non-lawyers who are specially trained and supervised
to do so. Legal service providers should build a multi-stage, collaborative online system that enables representation by lawyers or non-lawyers in specific stages of a case for which they have the requisite expertise (e.g., filing forms, attending bond or master calendar hearings, or seeking relief ). This approach requires creating e-files for cases, with files moving from one representative or provider to another as cases progress, resulting in both expert representation at each stage and greater efficiency in moving cases forward overall.
► Encourage efforts by state and local governments to provide and/or increase funding to support representation, especially given current restrictions on federal funding of representation in most removal cases.
Despite efforts by successive administrations to bring
the immigration court system’s unwieldy caseload
under control and to improve the quality of its
decision-making, the courts remain mired in crisis.
And while many of the most pressing problems have
roots that stretch back decades, they have in recent
years reached a breaking point. The measures
proposed in this report hold the potential to reduce
case volumes, increase the pace of decision-making,
and improve the quality of adjudications. They would
also mitigate migration pull factors that result from
years-long waits for decisions. The deeply interconnected nature of the nation’s immigration court system and its immigration enforcement and asylum systems mean that such efforts to modernize and fully resource the courts are critical to the health of the U.S. immigration system overall.
The deeply interconnected nature of the nation’s immigration court system and its immigration enforcement
and asylum systems mean that such efforts to modernize and fully resource the courts are critical to the health of the U.S. immigration system overall.
BOX 1
About the Rethinking U.S. Immigration Policy Project
This report is part of a multiyear Migration Policy Institute (MPI) project, Rethinking U.S. Immigration Policy. At a time when U.S. immigration realities are changing rapidly, this initiative has been generating a big- picture, evidence-driven vision of the role immigration can and should play in America’s future. It provides research, analysis, and policy ideas and proposals—both administrative and legislative—that reflect these new realities and needs for immigration to better align with U.S. national interests.
The research, analyses, and convenings conducted for MPI’s Rethinking initiative address critical immigration issues, which include economic competitiveness, national security, and changing demographic trends, as well as issues of immigration enforcement and administering the nation’s immigration system.
To learn more about the project and read other reports and policy briefs generated by the Rethinking U.S. Immigration Policy initiative, see bit.ly/RethinkingImmigration.
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Read the full report at the link.
Not the first time I’ve said this, but it’s time for “Amateur Night @ The Bijou” (“A/K/A Merrick Garland’s failed EOIR”) to end! Reassign the EOIR senior management folks who have demonstrated “beyond any reasonable doubt” their inability to provide dynamic, due process with efficiency management and visiononary leadership and to solve pressing problems. (This includes the inability to stand up and “just say no” to bonehead “gimmicks” like Garland’s due-process-denying, quality diminishing, backlog-building, “expedited dockets”).
It’s not an exaggeration to say that the anti-asylum, anti-human rights, anti-reality charade now playing out in Congress is driven in large part by Garland’s three-year failure to do his job by getting functionality and due process focused leadership into EOIR.
Bring in a competent, expert executive team, hand them the MPI Plan, and empower them to move whatever “bureaucratic mountains” need to be moved to get results, including, but not limited to, major personnel changes at the BIA and in Immigration Courts and taking a “hard line” with counterproductive performance by DHS (actually “just a party” before the Immigration Courts, NOT “their bosses!”)
Bring in these experts:
Judge (Retired) Dana Leigh Marks
Professor Stephen Yale-Loehr
Dean Kevin Johnson
Michelle Mendez (NIPNLG)
Professor Michele Pistone
Jason “The Asylumist” Dzubow
Wendy Young (KIND)
Task this “Magnificent Seven” — folks with centuries of practical expertise and creative ideas for actually solving humanitarian problems (rather than making them worse, as per the ongoing travesty on the Hill) — with turning around the EOIR disaster; support and empower them to achieve results and to reject politicized bureaucratic meddling from DOJ and elsewhere! Make the long-unfilled “promise of INS v. Cardoza-Fonseca” — a legitimate, properly generous, practical, efficient asylum and refugee adjudication system that complies with international and domestic law and simple human decency — a reality!
This is about rebuilding America’s most important and consequential court system, NOT running an “government agency!”
This is also the “demand” that Congressional Dems SHOULD be making of the Biden Administration, instead of engaging in disgraceful (non) “bargaining” with GOP nativists that seek an end to asylum and an increase to human suffering and ensure continuing humanitarian disaster at our borders!
Michelle N. Mendez, ESQ Director of Legal Resources and Training National Immigration Project, National Lawyers Guild PHOTO: NIPNLG
Michelle N. Mendez of NIP/NLG reports:
Today, National Immigration Project alongside our partners at CAIR Coalition and the ACLU of Virginia sued Immigration & Customs Enforcement for refusing to release people detained in Virginia who already won their immigration cases. Read the press release below.
So, how is this type of legal and human abuse acceptable from a Dem Administration that promised good government and to do better than the Trumpsters?
Just to be clear, the chances of a third country volunteering to take a non-national granted CAT relief are very slim. I don’t remember it happening on any case on my docket during my time on the bench in Arlington. Also, were that to happen, the DHS would be obligated to give the respondent an opportunity to seek CAT to that third country, likely a lengthy process.
So, detention in this circumstance doesn’t make sense from a practical, legal, or fiscal standpoint!
I know you are in touch with a lot of young lawyers in the NDPA and wanted to let you know about a wonderful trial skills training I’m involved in. I’ve been teaching for NITA in trainings focused on trial practice in Immigration Court for a few years now, along with Denise, Eliza, Jeff and others. This upcoming program in New York is for private counsel and is expensive, but totally worth it for new lawyers (and even experienced lawyers) to hone their trial skills. Judges appreciate it too! NITA also does public interest trial skills courses in cooperation with the NLGNIP which are more affordable for lawyers working for non-profits. If you know any young NDPA lawyers working for firms that can afford this program, I highly recommend it! Please pass this along to anyone you think would benefit. Here is the info:
**Pre-Program Lecture Online scheduled for Friday, September 22, from 12:00 – 1:30 PM EST.**
WHY YOU SHOULD ATTEND
As an immigration defense lawyer, you know that practicing in immigration court is increasingly rife with changes and complexity. NITA recognizes this reality and, in response, has developed Advocacy in Immigration Matters, a specialized and timely program designed to help you rapidly upgrade your skills in representing those facing removal from the United States.
WHAT YOU WILL LEARN
This is the only trial skills advocacy course available that covers everything you will experience during an immigration trial. From pre-trial to trial, you will receive on-your-feet training and guidance that goes beyond a lecture-focused learning experience. During this three-day program, you will:
make and meet objections,
conduct direct, cross, and re-direct examinations,
accredit a proposed expert witness,
obtain the required opinion from an expert witness, and
offer a concise yet compelling closing argument.
All of this will be done in small groups of your peers, with feedback and at a pace that will help boost your performance.
The instructors—some of the most experienced immigration trial lawyers and judges in the country—will share constructive feedback and specific ideas on how to refine your skills. As you watch your peers perform, you will also absorb the “teachable moments” from their performance and instructor critique, which means each layer of learning is continually reinforced by what you hear, see, and most importantly, do.
After three days, you will be able to step into the courtroom with the confidence and practical skills you need to be a good advocate for your client.
In addition, to supplement this “learning-by-doing,” you will have access to NITA’s trial skills video lectures and watch the faculty demonstrate skills. Furthermore, NITA will offer a pre-program, one-and-a-half-hour session on case analysis that will be foundational to the rest of the program and will ensure that participants seek and present the information most relevant to the assigned particular social group.
In just three days, this Advocacy in Immigration Matters program—as with the other time-tested, premier programming that NITA is known for—will swiftly refine your trial practice, leaving you with greater skill and confidence that shows up where it matters the most: when you stand shoulder-to-shoulder with your client in the courtroom.
NITA’s LEARNING-BY-DOING METHOD
NITA’s learning-by-doing method allows you to take calculated risks without ever jeopardizing your client’s case or your own reputation. It is a safe space to learn and practice. This course will employ the tried-and-true learning-by-doing method by providing ALL participants the opportunity to apply their learned skills as if they are presenting in court. You get to participate and observe, learning not only from your mistakes and triumphs but those of your fellow participants as well.
Expert faculty will provide you with constructive feedback, and you will have the option of recording yourself on your phone, which allows you to see and hear yourself the way judges and juries do. But unlike in a trial where there are real stakes at risk, at NITA you will have the opportunity to correct your mistakes, eliminate any bad habits you may have developed, and refine your trial skills.
When you return to your office, you will feel empowered by having learned skills that will serve you the rest of your career.
WHO SHOULD ATTEND?
You should!
Although some removal defense cases may not go to trial because of prosecutorial discretion, learning and refining your trial skills will translate into better outcomes for your clients.
Honing your trial skills will improve virtually every aspect of the many things you do as a litigator from negotiating with the OPLA assistant chief counsel to convincing the immigration judge to grant your client relief.
YOUR REGISTRATION INCLUDES
One-on-one personalized feedback and coaching from NITA faculty
Learn more about each faculty member’s professional background and their NITA webcasts, podcast episodes, publications, and programs by clicking their bio link below.
WHAT ARE PEOPLE SAYING ABOUT THIS COURSE?
“I would highly recommend this course to immigration practitioners. It was especially helpful for me as someone who began practicing during COVID, but I could see that the skills would also be useful to practice for more experienced practitioners. The course was 100% worth it and I came out of it feeling more confident in my ability to do defensive work.” — NITA – NIPNLG “Advocacy in Immigration Matters” course attendee (August 2022)
“This was literally the most useful training I’ve had in the legal field, including law school, internships and many other PD opportunities I’ve tried to take advantage of. I think in the legal profession, there’s such an emphasis on being right and being prepared that we have a hard time taking risks and messing up. Even in trainings and simulations, I participated very little because I felt like there was this very high amount of minimum knowledge that I needed, didn’t have, and didn’t know how to get. I guess I figured everyone had learned this in debate or Model UN, which I never did. But somehow, the instructors created this baseline understanding that we’re there to learn, we can start from zero, and messing up is welcomed because it shows we’re taking risks. I feel much more ready to work on my cases. What’s more, in a field where burnout is so high, I feel excited to prep for trial now.” — Advocacy in Immigration Matters online course attendee (April 2022)
“In the over twenty years I had the honor to serve as an immigration judge, I frequently saw attorneys who, although bright, dedicated and familiar with their clients’ cases, had very limited understanding of evidentiary rules, proper forms of direct and cross-examination, effective storytelling, and the art of closing argument. These basic trial skills are not usually part of a law school curriculum, and once engaged in the practice of law most attorneys do not take the time to develop or hone their skills, other than by “trial and error,” which is, sadly, sometimes at the expense of their clients. The NITA program provides a unique opportunity to develop these extremely important skills. I encourage those who are seeking to represent asylum seekers in Immigration Court to consider taking advantage of this unique and valuable opportunity.” — Hon. Eliza C. Klein, United States Immigration Judge (Ret.)
Every dollar you give to The NITA Foundation helps a public service lawyer receive advocacy training that would otherwise be out of reach.
National Immigration Project of the National Lawyers Guild Inc
BIO
Tom Swett
Attorney at Law
SWETT LIMITED
BIO
Victoria Neilson
Supervising Attorney
National Immigration Project of the National Lawyers Guild Inc
BIO
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This is truly an All-Star Faculty of folks who have “walked the walk,” saved many lives, and changed countless futures for the better over their distinguished and varied careers!
I have worked with NITA on developing and presenting advocacy training for VIISTA Villanova. This is a collection of “total pros” dedicated to making America’s courts function at the highest possible level.
Also, as you know from reading publications like LexisNexus, ImmigrationProf Blog, The Jeffrey Chase Blog, and Courtside, LITIGATION MATTERS! Every week, we alert our readers to successful efforts that are having a real life impact and literally changing the face of American law!
“Petitioner Christian Alberto Santos Garcia, a native and citizen of El Salvador, has twice travelled unlawfully into the United States — first in 2012, and again in 2016. In both instances, Garcia fled threats to his life and attacks carried out against him by the 18th Street Gang and the Salvadoran police. After seeking protection from removal before an immigration judge (the “IJ”) in 2016, Garcia was afforded relief — in the form of asylum, withholding of removal, and protection under the Convention Against Torture (the “CAT”) — by three separate IJ rulings. On each occasion, the Board of Immigration Appeals (the “BIA”) reversed the IJ rulings. Garcia, for his part, was removed to El Salvador in May 2022, and has awaited further developments in these proceedings from his home country. In this appeal, Garcia challenges and seeks reversal of three rulings made by the BIA — those being: (1) that the “particular social group” relied upon in connection with Garcia’s application for withholding of removal is not legally cognizable; (2) that Garcia was not persecuted in El Salvador on account of his political opinions; and (3) that Garcia failed to establish eligibility for CAT protection. As explained herein, we grant Garcia’s petition for review and reverse the BIA rulings in part, affirm them in part, and vacate them in part. We otherwise remand to the BIA for such further proceedings as may be appropriate.”
“Petitioner Juan Pablo Paucar petitions for review of a January 22, 2021 Board of Immigration Appeals (“BIA”) decision (1) affirming an Immigration Judge’s denial of his application for cancellation of removal and (2) denying his motion to remand. The BIA rejected Paucar’s ineffective assistance of counsel claim, declined to remand for consideration of additional hardship relating to his cancellation application, and declined to remand to await adjudication of his U visa application. Paucar argues that the BIA (1) applied an incorrect standard when reviewing his ineffective assistance of counsel claim, (2) overlooked and mischaracterized his new hardship evidence, and (3) failed to follow precedent when denying his request for remand while awaiting the adjudication of his U visa application. We are persuaded by Paucar’s arguments. Accordingly, we GRANT Paucar’s petition for review, VACATE the BIA’s decision, and REMAND for further proceedings consistent with this opinion.”
In Santos-Garcia v. Garland, the BIA’s 6-year quest to wrongfully deny protection to Santos has been thwarted, for now. But, the matter remains far from finally resolved, even though an IJ has now properly granted Santos relief three separate times, only to be wrongly reversed by the BIA on each occasion!
Rather than insuring that individual justice is done, the BIA has acted to promote injustice, create needless delay, and demoralize IJ’s who are getting it right! In the meantime, the respondent has been removed to the country where he has a well-founded fear of persecution to await his fate. This is because the 4th Circuit denied a stay they should routinely have granted in an exercise of truly horrendous judicial misjudgment.
Now, the court majority fecklessly pontificates about the need for timely resolution (you’ve got to be kidding) while hinting, but not requiring, that the “Gang That Can’t Shoot Straight” should return the respondent now. Don’t hold your breath!
Here are three of my favorite quotes from Judge King’s majority opinion in Santos Garcia v. Garland.
Put simply, the BIA declined to “interact seriously” with the record before it in reviewing Garcia’s claim for CAT protection, and its failure in that regard requires a remand.
Should we not expect a supposed “expert tribunal” like the BIA should be to “seriously interact” with the record in life-or-death cases?Why aren’t Dems in Congress and everywhere else “all over Garland like a cheap suit” to stop this kind of judicial misbehavior in his “wholly owned courts?”
In closing, we recognize that Garcia’s removal proceedings have languished before the IJ and the BIA — and now this Court — for more than six years, leaving him in limbo and presently in harm’s way in El Salvador. We are also mindful that Garcia was only 15 years old when he sought to protect his cousin from the 18th Street Gang’s advances, setting off more than a decade of hardship and uncertainty. With that, we emphasize the “strong public interest in bringing [this] litigation to a close . . . promptly.” See Hussain v. Gonzales, 477 F.3d 153, 158 (4th Cir. 2007). And although we do not direct the affirmative award of any relief, we acknowledge the compelling case for protection that Garcia has made. If, on remand, the BIA affirms either the IJ’s award of withholding of removal or the award of CAT relief, the DHS and the Attorney General should swiftly “facilitate [Garcia’s] return to the United States” from El Salvador. See Ramirez v. Sessions, 887 F.3d 693, 706 (4th Cir. 2018) (directing the government to facilitate previously removed petitioner’s return to the United States pursuant to an Immigration and Customs Enforcement Policy Directive). Moreover, if the BIA determines that Garcia’s “presence 24 is necessary for continued administrative removal proceedings” on remand, the authorities should see to his prompt return. Id.
So, after six years bouncing around the system and three separate grants of asylum by an Immigration Judge, the 4th Circuit essentially “begs” the BIA to get it right this time! This is after the court itself curiously denied the respondent’s application for stay notwithstanding the rather obvious risk of irreparable harm (e.g., death, torture) and the equally obvious substance of his timely filed appeal.
What a way to run a “justice system” (or, in this case, not)! Both the Executive and the Judiciary should be totally embarrassed by their gross mishandling of this case! But, I see resolve from neither Branch (nor the ever-absent Legislature) to put an end to this systemic mockery of due process, fundamental fairness, and simple common sense!
Here, discovering the BIA’s error in rejecting Garcia’s proposed social group of “young male family members of his cousin Emily” is no herculean task. Social groups based on family ties have been consistently approved by this Court as providing a sound basis for asylum or withholding of removal applications. See, e.g., Salgado-Sosa, 882 F.3d at 457; Hernandez-Avalos v. Lynch, 784 F.3d 944, 949 (4th Cir. 2015); Cedillos-Cedillos v. Barr, 962 F.3d 817, 824 (4th Cir. 2020). Indeed, our pivotal 2011 decision on the matter — Crespin-Valladares v. Holder — recognized in no uncertain terms that “the family provides a prototypical example of a particular social group.” See 632 F.3d at 125. In tossing out Garcia’s proposed social group in March 2021, however, the BIA largely disregarded our precedent, providing no citation to or discussion of Crespin-Valladares. The BIA instead relied chiefly on its own then-existing precedent, set forth in the Attorney General’s 2019 L-E-A- II decision. As described above, L-E-A- II — which was vacated by the Attorney General in June 2021 and thus “lacks legal force” — “conflicted with [this Court’s] well-established precedent” recognizing families as cognizable social groups. See Perez Vasquez v. Garland, 4 F.4th 213, 227 n.11 (4th Cir. 2021). Surprisingly, the BIA paid little mind to L-E-A- II’s vacatur in its Reconsideration Order of 2022, doubling down on its earlier “particular social group” ruling and again inexplicably declining to apply Crespin-Valladares and its progeny.7
Notably, the “rule of Crespin-Valledares” — my case where the BIA erroneously reversed me — continues to have an impact! A dozen years post-Crespin and the BIA is still getting it wrong! Why are these guys still on the appellate bench, setting negative precedents and ignoring favorable precedents? In a Dem Administration? Seriously!
Michelle N. Mendez, ESQ Director of Legal Resources and Training National Immigration Project, National Lawyers Guild PHOTO: NIPNLG
My friend Michelle Mendez, Director of Legal Resources and Training over at National Immigration Project offered some commentary on the Second Circuit’s decision in Paucar v. Garland.
Congratulations and thank you for your superb work, Lindsay! This case offers so much and seems like the CA2 delivered.
Here are a couple of excerpts from the decision that stood out to me:
“In a January 14, 2020 written decision, the BIA dismissed Paucar’s appeal and denied his motion to reopen and remand. Three months later—after Paucar filed a petition to review the BIA’s decision in this Court—the BIA sua sponte reinstated Paucar’s appeal and motion, noting that it had not “consider[ed] all of the evidence submitted by [Paucar].” Id. at 124.” [Do we know why the BIA sua sponte reinstated the appeal and motion?] LINDSAY NASH RESPONDS: “The BIA only sua sponte reopened the appeal and motion because Paige Austin (co-counsel extraordinaire, copied here) filed a PFR and identified the missing evidence early on, prompting OIL to agree to a remand.”
“Finally, the BIA concluded that remand to await the adjudication of Paucar’s U visa petition was unnecessary because Paucar could request a stay of removal from USCIS.” [Does anyone know what the BIA was referencing here? Later on the decision says DHS and not USCIS so perhaps it is a typo.] LINDSAY NASH RESPONDS: “I think that the reference to USCIS that you flag was a typo and that it should have said DHS.”
“We conclude that the BIA should have applied the Sanchez Sosa factors in considering Paucar’s motion to remand as it pertains to his U visa or explained its reasoning for not doing so. [This is the first time that the CA2 answers the question of whether Sanchez Sosa applies to motions to remand or reopen filed during the pendency of an appeal where the noncitizen did not previously request such a continuance before the IJ].”
There is a great discussion on the BIA improperly applying Coelho (which they love to throw around in correctly) to the prejudice assessment and a paragraph discussing how the CA2 and other courts of appeals view unpublished BIA decisions.
Again, really great work and outcome! Thanks for sharing with all of us, Dan!
For a case distinguishing Coelho and applying a “reasonable likelihood of success” standard to a MTR, see Matter of L-O-G-, 21 I&N Dec. 436 (BIA 1996), written by me! The BIA ignores it or misapplies it in many cases. But, it’s still “good law!” Just another instance in which the BIA evades “older” precedents that could produce favorable outcomes for respondents!
In this case the IJ denied the respondent’s applications and ordered removal in May 2018, five years ago. Nobody contests that the respondent was ineffectively represented at that time.
Through new pro bono counsel, respondent Paucar filed a timely appeal with the BIA. Less than two months following the IJ’s decision, new counsel filed a copiously documented motion to the BIA to remand for a new hearing because of the ineffective representation.
Rather than promptly granting that motion for a new hearing, the BIA set in motion five years of dilatory effort on their part to avoid providing a hearing. Obviously, several new merits hearings could have been completed during the time occupied by the BIA’s anti-immigrant antics!
Along the way, according to the Second Circuit, the BIA “improperly imposed a heightened standard,” “erred by discounting the impact of counsel’s ineffectiveness,” “improperly relied] on the IJ’s tainted findings,” “overlooked and mischaracterized the record evidence,” “erred by overlooking or mischaracterizing evidence,” “overlooked and mischaracterized material evidence,” and failed, without explanation, “to follow its own precedent.” What else could they have screwed up? The file number?
This would be highly unacceptable performance by ANY tribunal, let alone one entrusted with making life or death decisions about human lives and whose decisions in some instances have been unwisely insulated from effective judicial review by Congress. Individuals appearing before EOIR deserve better! American justice deserves better! How long will AG Garland continue to get away with failing to “clean house” at America’s most dysfunctional court system and bring order, due process, fundamental fairness, legal expertise, and judicial professionalism to this long-overlooked, yet absolutely essential, foundation of our entire U.S. justice system!
Wasting time and resources looking for bogus ways to deny that which better, more expert, fairer judges could easily grant his had a huge negative impact on the EOIR backlog and is a driver of legal dysfunction throughout the immigration bureaucracy, and indeed throughout our entire legal system, all the way up to and including the Supremes!
Start by fixing “that within your control!” That’s a simple message that Dems, unfortunately, don’t seem to get when it comes to immigration, human rights, and racial justice in America!
CAUTION: You are about to enter AG Merrick Garland’s “Twilight Zone” — where “judges” operating in a parallel universe make surreal decisions without regard to facts, law, or common sense applicable in this world! The Twilight Zone Billy Mumy 1961.jpg :PHOTO: Public Realm
Another timely report from Dan Kowalski @ LexisNexis:
“Perez-Vasquez is correct that the BIA erred by failing to address key evidence. See Cabrera v. Sessions, 890 F.3d 153, 162 (5th Cir. 2018). Specifically, the BIA did not consider several factors he raised in his motion to reopen as to whether exceptional circumstances prevented his appearance at his removal hearing, including evidence of: (1) Perez’s multiple attempts to contact both the Portland and El Paso immigration courts; (2) the fact that he filed two change of address forms because the El Paso immigration court sent the notice of hearing to the wrong address after he filed his first one; (3) the fact that his hearing was set in El Paso—where his son was detained—as opposed to Portland despite informing officials that he was going to reside in Oregon; (4) his financial constraints in travelling to El Paso with three-days notice. See Matter of S-L-H- & L-B-L-, 28 I. & N. Dec. 318, 321 & n.4 (BIA 2021); see also Magdaleno de Morales v. INS, 116 F.3d 145, 148 (5th Cir. 1997) (considering whether alien attempted to contact the immigration court prior to hearing). Additionally, the BIA failed to address evidence of Perez’s regular check-ins with immigration officials and his diligence in filing a motion to reopen, which tend to show an incentive to appear. See Matter of S-L-H- & L-B-L-, 28 I. & N. Dec. at 321. … Perez-Vasquez’s petition for review is GRANTED in part, DISMISSED in part, and DENIED in part. His case is REMANDED to the BIA for the limited purpose of considering—in light of the totality of the circumstances of his individual case—whether exceptional circumstances prevented his appearance at his removal hearing.”
[Hats off to NIPNLG Director of Legal Resources and Training Michelle N. Méndez!]
Michelle N. Mendez, ESQ Director of Legal Resources and Training National Immigration Project, National Lawyers Guild PHOTO: NIPNLG
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The facts of this case are somewhere out there in the “twilight zone.” Would any other tribunal in America waste two decisions denying an individual a fair hearing in this situation?
But, sadly, it’s what we have come to expect from a failing organization that is more interested in denying the right to be heard than in conducting hearings! Of course, EOIR is building record backlogs with “Aimless Docket Reshuffling,” lousy leadership, bad, often anti-immigrant, jurisprudence, and infinite tolerance for substandard performance within its ranks! Enough!
Congratulation Michelle, my friend, to you and your all-star team over at NIPNLG. Perhaps the worst mistake that Garland has made as AG was not immediately “cleaning house” at EOIR and appointing folks like Michelle and others from the NDPA to fix the system: At long last, bring practical scholarship, creative thinking, “experience in the trenches,” and an unswerving commitment to due process into a dysfunctional organization and “take names and kick tail” of those judges and others who are still “with” the mindless, immoral, counterproductive, and wrong-headed “any reason to deny/courts as a soft deterrent” approach of the former Administration.
The EOIR system needs real, dynamic intellectual leaders and widely-respected, innovative, courageous “practical scholars” like Michelle! A few such folks exist in today’s EOIR. But, they are essentially buried in the “forest of intellectual and moral deadwood” that Garland has not yet cleared out!
We are well into the Biden/Harris Administration; but, bad and poorly qualified judges and weak or inept administrators from the Trump and Obama Administrations (or even Bush II) are still wreaking havoc on American justice and threatening our democracy.
By contrast, if not invited to fix the broken EOIR system “from the inside” Michelle and the other members of the NDPA are going to force change from the outside! You can count on it! They will keep at it until this dysfunctional, unfair, and mal-administered system either reforms or collapses under the weight of its own incompetence, cruelty, inefficiency, and just plain stupidity!
Consistently getting these cases right (an MTR, for Pete’s sake) isn’t “rocket science.” A competent IJ would have taken about 5 minutes or less to mark this “granted” and change venue to Portland. A competent appellate tribunal would have reversed and rocketed it back to the IJ with instructions to “cut the BS.”
But, it continues to be elusive for Garland’s “gang that can’t shoot straight!” This system “coddles” poorly performing judges at both levels!
Meanwhile, they “throw the book” at desperate individuals trying their best to navigate EOIR’s broken, irrational, and intentionally “user unfriendly” parody of a “court system.” It is truly the “Twilight Zone of American Justice!”
Think of it: Four years, three tribunals, at least five Federal Judges, and a bevy of lawyers and clerks have spent time on this case. And, EOIR is no nearer to getting to the merits than the day the NTA was issued! This system needs “practical problem solvers” like Michelle, NOT “stuck in the mud” bureaucrats masquerading as judges, professional judicial leaders, and role models.
Tell Garland it’s time for a better, smarter approach to justice at EOIR! The real talent is out here! What’s he waiting for?
Michelle N. Mendez, ESQ Director of Legal Resources and Training National Immigration Project, National Lawyers Guild PHOTO: NIPNLG
Michelle writes:
Sent: Wednesday, July 6, 2022 7:38 PM
While the facts were definitely bad in this case, I do think the decision provides a helpful framework for a fairly common issue–impeachment leading to adverse credibility– whereas before we did not have a framework and relied on the Federal Rules of Evidence. Through this decision, we now know and can argue that impeachment evidence may contribute to a credibility determination only where the evidence is probative and its admission is not fundamentally unfair, and the witness is given an opportunity to respond to that evidence during the proceedings. It is up to us to enforce these limitations. Furthermore, note a few helpful footnotes. Footnote 3 notes that proceedings were continued after DHS submitted impeachment evidence and both parties were given the opportunity to provide evidence and argument. This is what should happen. Footnote 4 refers to DHS correctly using the evidence as impeachment evidence as opposed to submitting late-filed evidence under the guise of impeachment, which is what usually happens and we must object to. Footnote 5 reminds us tochallenge the IJ’s determination that the border official’s notes are accurate and reliable pursuant to Matter of J-C-H-F-, 27 I&N Dec. 211, 216 (BIA 2018), which is a case we cover during our trial skills trainings. All in all, a bad outcome for this respondent, but a helpful case to the rest of us who want to avoid a similar outcome.
Michelle
N. Méndez | she/her/ella/elle
Director of Legal Resources and Training
National Immigration Project of the National Lawyers Guild
Thanks Michelle, my friend!Please note that Michelle is now Director of Legal Resources & Training at NIPNLG and has provided her new contact information above.
NDPA advocates should also check out these other recent practice advisories from Michelle and her terrific team that transitioned from CLINIC to NIPNLG, two of which were in partnership with ILRC:
Practice Advisory: Understanding and Overcoming Bars to Relief Triggered by a Prior Removal Order (June 29, 2022):
I always offered the respondent a continuance to examine the impeachment evidence. However, few took my offer. I think that was because:
For those in detention, it meant further extending the period of detention;
For those on the always backlogged non-detained docket, continuances often meant months before the hearing could resume.
Instead, most counsel just took my offer of a short recess to examine the evidence and discuss it with the respondent.
As Michelle points out, it will be up to counsel to insure that these rules are enforced. In the “rush to deny for any reason” — still a major “cultural” problem at EOIR that Garland has failed to systemically address — precedents and aspects of precedents favorable to the respondent are too often ignored, glossed over, or distinguished on bogus grounds. It’s up to the NDPA to “hold EOIR Judges’ and ICE ACCs’ feet to the fire” on these points!
Garland had a chance to bring in folks like Michelle and other NDPA superstars to “clean up” EOIR and restore first class scholarship, due process, and fundamental fairness as the mission, but failed to do so. The results of his failure are pretty ugly, especially for those individuals seeking justice in a dysfunctional system where fair, legally correct results are a “crap shoot” 🎲 — at best! It doesn’t have to be that way!
“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
Eminem has wisely asked, “If you had one shot or one opportunity to seize everything you ever wanted in one moment would you capture it or just let it slip?” Representatives should take a cue from these “Lose Yourself” lyrics and present the best motion to reopen possible because, generally, a respondent may only file one motion to reopen, so there is one shot, one opportunity to do so. To support representatives in accomplishing this goal, CLINIC offers numerous resources on motions to reopen, as well as training and mentorship.
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Taking advantage when opportunities present themselves; so critical to the effective practice of law, immigration or otherwise!
Thanks, Michelle, for enlightening us and for all you and CLINIC do for humanity!
1) The process would work much better if EOIR consulted the stakeholders for their ideas before issuing any memo.
2) In the absence of a real e-filing system, the assignment of trial dates without consulting counsel as to their availability is likely to generate lots of motions for different dates.
3) In a system with 1.3 million cases, why not ask how much time counsel needs for prep and filing rather than setting arbitrary dates? “Live (or even TV) Masters” give the IJ and the parties an opportunity to “negotiate” mutually agreeable, realistic hearing dates. That, in turn, minimizes the number of motions to continue or reset and maximizes the chance of actually getting the case heard on the first scheduled Individual (Merits) Hearing date (barring more Aimless Docket Reshuffling from EOIR “management,” which is a continuing problem).
4) Given how messed up the EOIR dockets are, what’s the point of pushing for 30 day filings when the merits hearing might not be for years?
5) How do you encourage stipulations with precedents that make them worthless when the AG or BIA or IJ can choose to ignore them to deny? Stipulations seem to bind only one party: the respondent. Can’t imagine a much clearer indication of systemic bias or lack of due process and impartiality.
6) To me, this looks like just another gimmick to allow EOIR to “deny and deport” for failure to meet arbitrary filing deadlines, without EOIR committing to any reasonable limits on its own scheduling of merits hearings. The R has to “race or lose;” but, EOIR can (and does) take forever with no accountability.
7) What’s the empirical basis for all EOIR’s assumptions as to what best and most efficient practices are? How would an agency renowned for “malicious incompetence” know? Best and most efficient for whom? Falls Church bureaucrats? Politicos on the 5th Floor of the DOJ?
8) I completed lots of cases at Master, besides in absentias. In some situations, I suggested areas for stipulation or agreement, or invited joint motions to transfer to my “short calendar” if certain conditions were met. I’m not convinced that “interactive” Masters serve no purpose. I’d be interested in whether the private bar sees these procedures as an improvement. Amazing what you can actually accomplish when you have the parties and counsel in your actual presence as an IJ. Amazing what an IJ can actually teach and communicate from the bench during a “live” master.
9) To some degree, this ham-handed attempt at micromanagement “from afar and on high” looks like a restoration of the paper heavy and labor intensive chaos that existed in the system before EOIR was created in 1983 and the late Chief Judge William R. Robie “invented” Master Calendar as an essential scheduling tool that brought order from that chaos. If EOIR ever got competent court administration and created a functioning e-filing system (like almost every other tribunal in the U.S.), the private bar and actual sitting IJs could undoubtedly suggest some helpful “tune-ups” to the Master Calendar process to take advantage of efficiencies made possible through e-filling.
10) This memo also violates one of the key principles of effective judicial administration — that docket management and scheduling of cases should be left to local judges in conjunction with the private bar and the local DHS Chief Counsel. They, not bureaucrats in Falls Church or DOJ policies, are in the best position to develop the most reasonable and efficient docketing and scheduling procedures coordinator that particular court. The major contribution that “EOIR Headquarters” could make would be a functioning e-filing system — an area where they have an inexcusable two decade history of abject failure, wasted effort, and squandered public resources.
10) To me, this looks like another “designed to fail” edict from the purveyors of disaster, disorder, and injustice!
11) Other than that, it’s great!
Those wanting to contribute to an organized response to this latest “gut punch” might want to contact Michelle Mendez, Director of Defending Vulnerable Populations at CLINIC, or retired Judge Sue Roy (NJ Bar, AILA, Round Table).
On April 7, after you have attended the EOIR session, you might want to “tune in” to our panel for the Hispanic National Bar Association entitled“Who’s Judge Is It Anyway?” We’ll discuss ideas on how attorneys, particularly those from under-represented groups, can go about forcing change to the institutionalized racism, grotesque disorder, and systemic abuses of due processes, best practices, and human dignity still going on in our Immigration Courts even as the Biden Administration claims to be focusing on racial justice in America!
Let’s find ways to force Judge Garland out of his “ivory tower funk” and to make him start paying attention to the Constitutional mockery, amateurish jurisprudence, defiance of common sense, and racist dehumanization of “the other” going on in “his” wholly owned and beyond incompetently operated “courts!”
President Biden’s top advisers promise “long-needed systemic reforms” to address a backlog of more than 1 million asylum cases in the immigration court system, which often keeps people applying for asylum waiting years to resolve their cases. That could mean some big changes to how asylum cases are processed at the southern border.
The plan the Biden administration is considering to speed up the process would take some asylum cases from the southern border out of the hands of the overloaded immigration courts under the Department of Justice and instead handle them under the purview of the Department of Homeland Security, where asylum officers already process tens of thousands of cases a year, two people familiar with the discussions who were not authorized to speak about administration plans told NPR exclusively.
Those familiar with the discussions say one outcome could be discouraging unauthorized migration. That’s because those who can argue for a certain fear of persecution are able to gain temporary residence and often a work permit as they wait out their cases.
. . . .
Advocates say they welcome a more efficient system, provided changes are not used as a way to expedite removals as the Trump administration did.
Eleanor Acer of Human Rights First says there are a host of reasons to allow asylum officers to conduct the first set of interviews and reduce the numbers, but she says it’s important that applicants have a chance to appeal to the court before being removed.
“The massive backlog must be dealt with,” she said. “But the answer to that problem is not to deprive asylum seekers of due process and a fair hearing, or to weaponize the asylum process to try to deter other people from seeking U.S. protection.”
The Biden administration has already ended two of the Trump administration’s programs, the Prompt Asylum Case Review and the Humanitarian Asylum Review Program, that were designed to quickly return Mexican and Central American asylum seekers suspected of having invalid claims.
Department of Homeland Security officials declined to discuss plans to shift border cases to the asylum division.
But an administration official said last week they are now working on a number of policies and regulations to create “a better functioning asylum system.”
That includes establishing refugee processing in the region and strengthening other countries’ asylum systems.
Biden also resurrected the Central American Minors program that reunited children with parents who are in the United States legally.
The Biden administration is now seeking to “pick up the pieces” after the Trump administration, with a different set of policies that abide by U.S. law but also international obligations, Meissner said.
“We need to have access to asylum,” Meissner said, “but it needs to be done in a way that can be prompt and fair, not in a way that leads to waits of years and years and court backlogs.
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Read the complete article at the link.
Why it could work:
Granting relief at the lowest level of the system is cost effective;
It’s easier to hire, train, and assign Asylum Officers than Immigration Judges;
Immigration Court time should be reserved for those cases where there is a real issue as to whether relief can be granted.
Why it probably won’t work:
Leadership is critical. Right now, there are only a few experts in government with the knowledge, proven leadership ability, organizational skills, and courage to lead this program.
Two obvious names that come to mind are Judge A. Ashley Tabaddor, currently USCIS Chief Counsel, and Judge Dana Leigh Marks, one of the “founding mothers” of U.S. asylum law and pioneer of the well-founded fear standard. Both are past Presidents of the NAIJ. Neither has yet been tapped for this assignment.
By contrast, there are a number of experts in the private/NGO sector who could lead this effort. Obvious choices would be Judge Paul Grussendorf, former Immigration Judge, Asylum Officer, UN Representative, and professor; Professor Karen Musalo, Director, Center for Refugee & Gender Studies, UC Hastings Law; Eleanor Acer, Senior Director, Refugee Protection, Human Rights First (quoted in this article); Professor Michele Pistone, Creator and Founder of the VIISTA asylum training program at Villanova Law; Professor Phil Schrag, Co-Director of the CALS Asylum Clinic at Georgetown Law and author of Baby Jails and the upcoming release The End of Asylum; Michelle Mendez, Director, Defending Vulnerable Populations at CLINIC; or Judge Ilyce Shugall of our Round Table. But, nobody of that caliber has been tapped either.
Without creative, dynamic, expert leadership, and a different approach to personnel, the program will be yet another bureaucratic failure. In case nobody has noticed, after four years of never ending abuse, gross mismanagement, and intentional misdirection by the Trump kakistocracy, the USCIS Asylum & Refugee program is also in shambles — demoralized, disorganized, leaderless, incredibly backlogged. An obvious untapped source is retired Asylum Officers and Adjudicators who could be brought back on a limited-term basis, intensively trained by experts from a “Better EOIR,” and who often are in a position to travel frequently and on short notice.
It’s not about deterrence. Already, this article speaks of “possible deterrent effect.” WRONG!The purpose of an asylum adjudication system is to provide fair, timely, generous adjudications of asylum eligibility in accordance with the letter and spirit of the Refugee Act of 1980, the U.N. Convention and Protocol on which it is based, and the due process clause of our Constitution. We have never had such a system, which inevitably would be more orderly and efficient, but also result in many more grants.
The main reason why we don’t currently have a functioning asylum system, and never have had the system that asylum seekers need and deserve, is that the system is at the mercy of a bogus Executive-controlled “court” system that time and time again has been compromised by politicos seeking who use it as an enforcement tool rather than an independent court of justice.
In 2014, the last year that I taught Refugee Law & Policy at Georgetown Law I “graded” the U.S. Asylum system at “B-.” Not as good as it should be, but not as bad as it could be.
Now I’d give it an “F.” Completely dysfunctional, highly arbitrary, and a tool of institutionalized racism and White Nationalism.
The system is ineffective as a deterrent. There is no known basis to believe that quick and often arbitrary and wrongful “rejections” are an effective deterrent. That’s particularly true because rejections are seldom explained in a reasonable, understandable manner. So, to the extent that there is a “message” it’s that you got the wrong officer or the wrong judge on the wrong day or that the U.S. legal system is inherently unfair and should be avoided by hiring a smuggler to get you to the interior of the U.S. where, as a practical matter, you have a better chance of obtaining “de facto refuge.”
The only “efficiency and leverage” that comes from the Asylum Officer system is in quickly identifying and consistently granting a substantial number of applications. That, and only that, does actually relieve the Immigration Court system of unnecessary cases. Otherwise, “non-grants” still have to go to the Immigration Courts for de novo review. I probably granted the majority of asylum cases “referred” from the Asylum Office. That leaves plenty of room to believe that a better trained and operated system with some positive guidance and effective supervision by better Immigration Judges and a truly expert BIA would achieve substantially higher grant rates and higher efficiency at the Asylum Office, thereby keeping many cases out of court and speeding the process for asylees to obtain permanent residence and eventually U.S. citizenship!
Some assumptions appear invalid. This article also repeats the unproven assumption that a fair, just, and efficient asylum system would result in rejection of the majority of cases. I doubt that.
Prior to the Trump disaster, approximately 75-80% of asylum applicants at the Southern Border passed “credible fear.” That the majority of them never achieved asylum was due less to the lack of merit in their claims than to factors such as: 1) lack of a system to match asylum seekers with qualified counsel; 2) wrong-headed anti-asylum precedents from the BIA that were specifically directed against asylum seekers from Latin America — basically institutionalized racism in the guise of “enforcement;” 3) poor selection, training, and motivation of Immigration Judges some of whom simply did not treat asylum seekers fairly, nor were they given any incentive to do so.
I granted asylum or other protection to many refugees from the Northern Triangle. I probably could have granted twice that number had the BIA precedents actually fairly and reasonably interpreted asylum law to specifically cover gender-based claims and claims arising from persecution by gangs basically operating “in lieu of government authorities” in most of the Northern Triangle.
Additionally, an honest interpretation of the CAT by the BIA would have allowed life-saving protection to be extended to many others who lacked nexus but had a high probability of torture with Government acquiescence upon return. I believe that a return to the original Acosta-Kasinga line of asylum analysis and adoption of proper CAT interpretationsalong the lines set forth by the (exiled) dissenting judges in Matter of J-E- would result in grants of some type of protection (asylum, withholding, or CAT) in the majority of Southern Border cases coming from the Northern Triangle that passed credible fear or reasonable fear.
Asylum, along with refugee status, is a key form of legal immigration to the U.S. There is absolutely nothing wrong with that. It’s NOT a “loophole.” It’s the law! Studies by groups of experts such as CMS have shown the huge benefits that refugees confer on the U.S. I have no reason to believe that asylum seekers as a group are any different.
As long as we keep treating the reality of human migration and the strengths and humanity of asylum seekers as a negative rather than a positive, we will continue to fail, as we have for decades, to fully comply with either our own laws or international conventions.
A broken, dysfunctional, unfair EOIR will continue to drag American justice down. There must be de novo review of denials by EOIR and far, far more competent review and direction in the review of credible fear denials by EOIR. A better BIA could actually set binding precedents on “credible fear” and “reasonable fear.”
Currently, EOIR is incapable of producing either consistently fair results (particularly for asylum seekers) or the inspired legal scholarship and leadership for the asylum system to be functional and held accountable. It’s going to require all new leadership, an all new BIA, elimination of all of the Trump-eraprecedents that impede fairness for asylum seekers, new merit-based selection criteria for Immigration Judges, professional administration from judicial experts, and an immediate slashing of the largely self-created “backlog” of 1.3 million cases by closing and removing from the docket every case more than a year old that doesn’t relate to a priority (most are folks who would be covered by Biden’s legalization program anyway; many are eligible for relief that USCIS could grant) to get EOIR in a position to provide the necessary legal guidance and system accountability for the Asylum Office. The absurdist notion that we could or would want to remove every one of the 10-11 million undocumented residents (many performing essential services that propped us up through the pandemic) is one of the “big lies” that has prevented rational reforms of our immigration system.
In plain terms, EOIR needs an immediate “rebuild” with a new progressive, humanitarian judiciary of experts. There is no early indication that Judge Garland either understands that “mission-critical” need or has a plan for achieving it.
As we say in the business the “devil is in the details.” Right now, I can see neither the details nor theleadership in place or “in the pipeline” to solve the debilitating problems in our asylum system that actually are undermining the entire U.S. justice system.
Biden could fix it. But, I wouldn’t count on it. That means that the only real fix in the offing will be for the NDPA to force the Administration to “get it right” through aggressive, never-ending litigation as well as continuing to seek better legislators. Highly inefficient. Yet, sometimes it’s the only way to get the attention of those in power.
If nothing else, we’ll continue to make an important historic record of the cruelty and stupidity with which the current asylum system is being administered. It doesn’t have to be this way. We can always choose to follow our “better angels.” It just takes the courage and the good judgement to get the right folks in the right jobs to make it happen.
BIA Asylum Panel In Action Albrecht Dürer, Public domain, via Wikimedia CommonsDan Kowalski Online Editor of the LexisNexis Immigration Law Community (ILC)
Dan Kowalski reports from LexisNexis Immigration Community:
“Alicia Naranjo Garcia (“Garcia”) is a native and citizen of Mexico. Garcia petitions for review of the Board of Immigration Appeals (“BIA”) decision affirming the Immigration Judge’s (“IJ”) denial of her application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). The Knights Templar, a local drug cartel, murdered Garcia’s husband, twice threatened her life, and forcibly took her property in retaliation for helping her son escape recruitment by fleeing to the United States. We have jurisdiction under 8 U.S.C. § 1252, and we grant the petition in part and remand. … [W]e conclude that the BIA erred in its nexus analysis for both Garcia’s asylum claim and her withholding of removal claim. We remand with instructions for the BIA to reconsider Garcia’s asylum claim, and for the BIA to consider whether Garcia is eligible for withholding of removal under the proper “a reason” standard. We deny the petition as it relates to Garcia’s claim for relief under CAT.”
This insanely nonsensical gibberish put forth by the BIA — and defended by OIL — is an insult to the entire American justice system!Obviously, EOIR and their DOJ “handlers” unethically assume that Article III Circuit Judges will just “take a dive” and defer to illegal and illogical removal orders. Because, after all, it’s only foreign nationals (mostly people of color) whose lives are at stake! Not “real human beings.” That’s exactly what “institutionalized racism” and “Dred Scottification” look like. Nothing worth breaking a sweat about in the “21st Century Jim Crow America!”
The BIA’s anti-asylum bias and massively incompetent adjudication — on life or death matters — continues to be exposed. There likely are many, many other legitimate asylum cases that are wrongfully rejected by the EOIR “denial factory.” That’s one of many reasons why the EOIR/DHS (intentionally) “cooked stats” on the bona fides of asylum seekers arriving at our Southern Border can never be trusted!
Not everyone is fortunate enough to have competent representation and get meaningful review by a Circuit panel not on “autopilot.” This is a corrupt and broken system, the continued existence of which in its current form is a repudiation of our Constitution, the rule of law, and human decency!
The Biden Administration can, and must, put an end to this ongoing national disgrace! “Any reason to deny” is not justice!
Wonder how the Georgia Law Clinic got involved in this 9th Circuit case? I have the answer, thanks to my friend Michelle Mendez, Director, Defending Vulnerable Populations @ CLINIC:
Thanks so much to CLINIC’s BIA Pro Bono Project for identifying and placing this case with the wonderful team at at University of Georgia School of Law!
Michelle Mendez Defending Vulnerable Populations Director Catholic Legal Immigration Network, Inc. (“CLINIC”)
The NDPA is everywhere! And, we’ll continue to be there until due process for all is achieved, regardless of the Administration!
“She struggled madly in the torturing Ray” Amazing StoriesArtist Unknown, Public domain, via Wikimedia CommonsBIA Asylum Panel In Action Albrecht Dürer, Public domain, via Wikimedia Commons
Tal Kopan reports for the SF Chronicle:
Bad conduct, leering ‘jokes’ — immigration judges stay on bench
Chronicle investigation: U.S. Justice Department lacks strong harassment oversight for judges
WASHINGTON — One judge made a joke about genitalia during a court proceeding and was later promoted. Another has been banned for more than seven years from the government building where he worked after management found he harassed female staff, but is still deciding cases.
A third, a supervisor based mostly in San Francisco, commented with colleagues about the attractiveness of female job candidates, an internal investigation concluded. He was demoted and transferred to a courtroom in Sacramento.
The three men, all immigration judges still employed by the Justice Department, work for a court system designed to give immigrants a fair chance to stay in the U.S. Every day, they hear some of the most harrowing stories of trauma in the world, many from women who were victims of gender-based violence and who fear that their lives are at risk if they are deported to their native countries.
These judges’ behavior toward women is not an isolated phenomenon in the immigration courts system. A Chronicle investigation revealed numerous similar instances of harassment or misconduct in the courts, and found a system that allows sexually inappropriate behavior to flourish.
In response to detailed questions before President Biden took office, the Justice Department declined to comment on specific allegations against judges, citing the privacy of personnel matters in some instances and the lack of written complaints in others, but said generally that it follows department procedures on misconduct. The Biden White House did not immediately respond to a request for comment.
Interviews with dozens of attorneys across the country and current and former government officials, as well as internal documents obtained by The Chronicle, show the problems have festered for years. The Justice Department has long lacked a strong system for reporting and responding to sexual harassment and misconduct.
And when such behavior has come to its attention, the department has in some instances simply transferred the offenders elsewhere.
The judges’ behavior appears to violate the department’s conduct policies and raises questions about the immigration courts’ ability to function fairly. Attorneys who have been the victims of harassment say they fear that if they try to hold judges accountable, they risk severe consequences, not only for themselves but for vulnerable clients.
“In the moment, you just know that you have to stay calm,” said Sophia Genovese, who has been an immigration attorney for three years and worked in the field of immigration policy for five. “You know if you do anything to piss him off, that’s going to ruin your reputation in his eyes. In that moment, am I thinking that I might be perpetuating sexism in the system? No, I’m thinking, I just need to get through this.”
She added, “If all you have to do is force a smile so that your client is not deported, the answer is obvious what practitioners are going to do.”
Michelle Mendez of the Catholic Legal Immigration Network, which provides legal representation to immigrants and helps attorneys report allegations of judicial misconduct, said lawyers face tremendous pressure not to call out judges’ bad behavior, even though they know ignoring it means it is likely to continue.
“An immigration judge might retaliate against the advocate by punishing her clients — and these are people fleeing persecution, rape and even death,” Mendez said. “It’s quite literally a Sophie’s choice that should never happen in the American legal system.”
The Trump administration did little to change the pattern, The Chronicle found, and in one case even promoted a judge who many women have said made them feel uncomfortable in open court and behind the scenes for years. Justice Department data shows the administration dismissed more complaints against judges than its predecessor.
It’s a problem that Biden’s administration has inherited. The very structure of the courts creates the conditions that allow bad actors to escape consequences, experts say. But that leaves Biden with a problem, they add: Does he reform the system to be independent of political influence, or does he use his political control over it to clean it up?
Not to “plug too shamelessly” for one of my all-time favorite journalists, but for those of you who aren’t subscribers, “The Chron” is running a “99 Cent Special” on digital subscriptions right now, and having “full access” to Tal and her colleagues would be “cheap at twice the price!”
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Every day that McHenry and his EOIR gang — acolytes of the “Miller-Hamilton-Sessions Branch” of the”Waffen SS” (all notorious child abusers among other “crimes against humanity”) — remain in power and authorized to abuse migrants, asylum seekers, women, and attorneys is an ongoing national disgrace and a cancer upon our nation and our system of justice!
Great article, Tal! Thanks!
Disgusting problem! How would YOU like to be a woman refugee or female attorney appearing before this ongoing, evil EOIR Clown Show🤡🦹🏿♂️? Ties in completely with the continuing gratuitous attacks on Ms. A-B- and her lawyers by outrageously unqualified chauvinists like Jeffrey Rosen!
What an ongoing national disgrace! The arrogance, audacity, and belief that there will be no accountability for abusing “the other” is both stunning and totally in line with four years of the Trump/Miller/Sessions/Barr/Hamilton/McHenry (surprise, all white males whose collective, genuine immigration and judicial “expertise” would fit in a thimble with room left over) kakistocracy and institutionalized abuses of migrants and their attorneys at EOIR and DOJ.
And many thanks to heroes like Michelle Mendez, Sophia Genovese, and other courageous members of the NDPA, and many “Knightesses” of our Round Table of Former Immigration Judges for having the courage to speak out in so many different and effective ways about the ongoing abuses inflicted by EOIR!
We must keep fighting and publicizing until these abuses end, and justice is restored to this ludicrously abusive, biased, openly misogynistic, anti-asylum, anti-due-process, and intentionallydehumanizing system.
The solution to the “problem” posed in Tal’s last sentence is not rocket science!
There is nothing wrong with using Executive authority to get rid of the kakistocracy, putting in experts and widely respected “due-process warriors and warrior-queens” as judges and judicial administrators, and giving them independence to reform and reformulate every aspect of this totally broken system and the disgraceful anti-migrant jurisprudence it has spawned. Get rid of the “deadwood” (or worse), put the right folks in charge, and then trust them to solve judicial problems without political interference. That’s how any “real” independent court system works, for Pete’s sake!
That certainly can and should include a new “merit selection system” for Immigration Judges that values immigration scholarship, human rights expertise, experience representing migrants and asylum seekers in Immigration Court, courage to oppose abuses, diversity, and a demonstrated lifetime commitment to due process and equal justice under our Constitution for all persons in the United States!
Over time, every judge currently in the system should be required to re-compete for their job under the new merit system. That system must be open, transparent, and involve public input in the selection process. (Unlike the current, largely closed, system designed to favor prosecutors and other government attorneys, and which has produced a remarkably, shockingly non-diverse, non-expert, and non-representative “judiciary,” particularly in light of the communities most involved in, and affected by, the Immigration Court process).
Those incumbent judges who have demonstrated a commitment to guaranteeing fairness and due process for all should have no trouble being retained. But, those who have carried out the departed regime’s “dump on asylum seekers and their lawyers program” should and will be removed and replaced by better-qualified judges. Human lives simply are too important to be at the mercy of bad judges — and, without knowing exactly how many, there are some “bad judges” operatingin the EOIR system!
Remove the Clown Show🤡🦹🏿♂️☠️! Put Michelle, Sophia Genovese, and/or other leading members of the NDPA in charge of EOIR & the BIA and let them solve the problems! Empower them to root out the “bad actors” (including members of the “90% Asylum Denial Club” — some disgracefully ensconced at the BIA) in the judiciary, support reform of the process and the law without interfering with judicial independence, then get 100% behind the legislative push for an Independent Article I Immigration Court with expert, due-process-committed, diverse, courageous judges!
There are hundreds, perhaps thousands, of well-qualified lawyers in the NDPA out there who could solve these pressing problems!
Stay tuned! Courtside will have lots to say about this until somebody in the Biden DOJ takes notice and solves the problem! The Clown Show has got to go!
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept
I hear the cries of pain from those subjected to this degrading and entirely unnecessary national disgrace! It’s an affront to our Constitution, human dignity, and our entire justice system!
Thanks, Tal, Michelle, Sophia, and others for all you do, and due process 🇺🇸🗽⚖️ 🧑🏽⚖️ forever!
Tal Kopan Washington Reporter, SF ChronicleMichelle Mendez Defending Vulnerable Populations Director Catholic Legal Immigration Network, Inc. (“CLINIC”)Knightess of the Round Table
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”Trump Regime“EOIR Clown Show Must Go” T-Shirt Custom Design Concept
CLINIC v. EOIR, USDC D DC, 01-18-21 (Judge Amit P. Mehta)
KEY QUOTE:
The court holds that EOIR acted arbitrarily and capriciously by disregarding the Final Rule’s impact on legal service providers and their capacity to provide legal services to persons subject to removal proceedings. EOIR was obligated to address these concerns as part of the notice-and-comment process but it failed to do so. In short, EOIR “entirely failed to consider an important aspect of the problem.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. (State Farm), 463 U.S. 29, 43 (1983). The court also finds that, absent equitable relief, Plaintiffs will suffer irreparable harm, and that the balance of the equities and the public interest favor staying the effective date of a portion of the Final Rule.
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Kind of says it all!
Congrats to the heroes at CLINIC and their NDPA colleagues!
Michelle Mendez Defending Vulnerable Populations Director Catholic Legal Immigration Network, Inc. (“CLINIC”)
And, while you’re at it, Judge Garland, you must examine the role of the sleazy DOJ lawyers who mounted an essentially frivolous defense for this nonsense in Federal Court. Sadly, you’re looking at systemic failure here, as well as a totally disrespectful and unwarranted effort to “beat the clock” in implementing the Miller/Hamilton White Nationalist, racist, anti-due-process, xenophobic agenda!
Obviously, EOIR cut corners and tried to rush these bogus changes into effect before the well-established “end date” of the Trump kakistocracy on Jan. 20, 2020. EOIR also of acted in full knowledge that the incoming Biden Administration would go a “different direction” on immigration matters.
In plain terms, this was an illegal bad-faith effort to undermine the incoming Biden Administration and illegally punish legal service providers by making them use time and resources in undoing the illegal mischief EOIR intentionally inflicted. This is neither “normal” nor”acceptable.” It must be forcibly and swiftly addressed by “Team Garland.”
CLINIC and their allies should be devoting resources to representing individuals in Immigration Court, not to fending off a bad-faith racist agenda sponsored by no less than a Department of “Justice” that has completely lost its way and impedes the public good.
This is a very serious ongoing national disgrace and abuse of the legal process by the DOJ. It needs to stop! Now! And those responsible for this outrage must face accountability for their unwarranted and illegal actions!
🇺🇸⚖️🗽Due Process Forever! The EOIR Clown Show 🤡🦹🏿♂️☠️ Never!
