"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.
Empowering Immigrant Entrepreneurs:
A Blueprint for Success
By Diane Harrison
Special to immigrationcourtside.com
Dec. 20, 2023
Immigrant entrepreneurs stand at the precipice of immense opportunity, yet they face unique challenges unknown to their native counterparts. Their journey in carving out a niche in foreign markets requires not only an unwavering entrepreneurial spirit but also a well-crafted strategy that navigates the intricacies of a new business landscape. From legal compliance to market understanding, their path is one of resilience and adaptability, leading to unparalleled growth and contribution in their new homeland. Learn more from this article presented by ImmigrationCourtside.com.
Seek Legal Guidance
The importance of legal compliance cannot be overstated. Immigrant entrepreneurs benefit greatly from consulting with experienced business attorneys who can navigate them through the complexities of local laws and regulations. This step is crucial in avoiding legal pitfalls and setting a firm foundation for business growth. Proper legal advice can also aid in understanding international trade laws, essential for businesses looking to operate globally.
Establish Financial Stability
Starting a business often involves balancing the initial stages of your venture with a steady source of income. Many entrepreneurs take on part-time or flexible jobs that allow them to devote necessary time to their business while ensuring financial stability. Look for employment that fits your skills and potentially supports your business venture.
Stand out as a candidate by creating an impactful resume and cover letter. Cover letters are the most difficult, so use online tools to make this process easier. You can try this page, which outlines helpful steps for creating a great cover letter. Other ways to make your cover letter shine include using appropriate references to the job, sticking with clear, precise language, and converting your document to a PDF.
Dive into Market Insights
Understanding the market is essential for any successful business, especially for immigrant entrepreneurs. Conducting detailed research to comprehend consumer needs and preferences is key, as it enables them to customize their products or services, ensuring they meet market demands effectively. This alignment significantly boosts their potential for success.
Gaining deep market insight also aids in anticipating future trends, providing a distinct competitive advantage. Moreover, this knowledge helps in identifying underserved niches or emerging opportunities, allowing for strategic positioning and expansion. Additionally, it fosters better risk management by preparing the business for market fluctuations and changes in consumer behavior.
Opt for an LLC
Selecting the appropriate business structure is crucial for immigrant entrepreneurs, with an LLC (Limited Liability Company) being a popular choice due to its considerable advantages. An LLC provides liability protection, shielding personal assets from business debts and lawsuits, and offers operational flexibility, adapting to the unique needs of the business.
This decision significantly influences the security and expansion possibilities of an immigrant entrepreneur’s venture. Furthermore, an LLC streamlines tax processes, thereby enhancing financial management efficiency and potentially reducing tax burdens.
Leverage Community Resources
Utilizing local resources is a strategic move for immigrant entrepreneurs, offering a plethora of support and expertise. By engaging with business development centers and networking in the community, they gain critical insights and connections, essential for understanding and thriving in the local business environment.
This involvement not only aids in navigating the local market but also accelerates business growth. Access to these resources also eases cultural acclimation, helping entrepreneurs to comprehend and assimilate into the local business culture.
Harness the Power of Digital Marketing
In the digital era, a well-crafted online marketing strategy is crucial. Tailoring digital marketing to connect with the target audience can significantly expand a business’s reach, attracting more customers and driving growth.
Effective digital marketing not only enhances visibility but also establishes a global presence, opening doors to international markets and opportunities. Additionally, it allows for precise targeting and analytics, enabling businesses to measure and optimize their marketing efforts for better results.
Cultivate Trust and Reputation
Building trust and a strong reputation in the market is essential. Immigrant entrepreneurs should focus on delivering exceptional quality, establishing a robust online presence, and seeking partnerships with established entities. This approach is vital for gaining customer loyalty and long-term business success. Cultivating a strong reputation also opens doors for future collaborations and opportunities.
Learn from Challenges
Adopting a positive perspective towards failures and setbacks is crucial. Viewing these experiences as learning opportunities allows immigrant entrepreneurs to refine their approach, increase resilience, and adapt to the evolving business landscape. Embracing these challenges also fosters innovation, driving entrepreneurs to find creative solutions and new business avenues.
In the world of entrepreneurship, immigrant entrepreneurs are the unsung heroes, turning their dreams into reality against all odds. Their journey, marked by determination and adaptability, is a testament to the power of resilience and strategic planning. As they weave their stories into the fabric of their new communities, they not only achieve personal success but also enrich the diverse tapestry of global business. Their successes are not just their own; they are beacons of hope and inspiration for future generations of entrepreneurs to come.
While we are pleased to present this article as a helpful informative tool for prospective immigrant investors, please remember that it constitutes neither legal advice nor investment/financial advice. As noted in the article, you should obtain your own professional legal counsel and financial advisor to evaluate your personal and financial situations before making legal, business, and/or investment decisions. Laws, financial markets, and business regulations can vary greatly from locality to locality within the United States.
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!
Stephen Miller & Count Olaf. Despite promises to the contrary, the Biden Administration still channels Stephen Miller in its approach to kids in court. And, now they are working with GOP nativists and wobbly Dems in Congress to make things even worse, for kids and other asylum seekers! Evil Twins, Notorious Child Abusers
A new “white paper” investigation from UCLA Center for Immigration Law and Policy documents shocking abuses already being inflicted on children Immigration Court even as Congress and the Administration look for more ways to strip asylum seekers of legal rights and human dignity:
NO FAIR DAY: THE BIDEN ADMINISTRATION’S TREATMENT OF CHILDREN IN IMMIGRATION COURT 3
alone, while others are in “consolidated proceedings” with their fami-
lies. The immigration system, and the Biden administration, has failed
both. Many of these children proceeded without counsel, and a huge
number of children have been ordered removed for failure to appear.
We explain why these two policies—the imposition of in absentia
removal orders against unrepresented children and the failure to
provide counsel—are unlawful, and we provide recommendations
for how the Biden administration can remedy this crisis.
. . . .
It should be obvious that immigration court proceedings are far too
complex for children to navigate without legal representation. As
Secretary Mayorkas acknowledged earlier this year, “a nine-year-old
child cannot navigate the immigration system.”44 Attorneys General
under the Obama administration made similar statements, as had
the government’s own expert in litigation challenging the failure to
provide counsel for children several years ago.45 Prior to that conces-
sion, one supervisory immigration judge was extensively ridiculed
for stating his view that he could teach three- and four-year-olds to
understand immigration law and represent themselves in immi-
gration court.46 Yet, despite the obvious absurdity of that view, the
Biden administration’s immigration courts—like the immigration
courts of all prior administrations—recognize no age below which
children cannot proceed without a lawyer in court.
. . . .
CONCLUSION
Despite taking some strong symbolic and practical steps in its early
days, the Biden administration has failed children in immigration
court under its watch. In the last three years, Immigration Judges
have issued removal orders against tens of thousands of children in
violation of basic due process principles. Though the administration
has not enforced most of those removal orders, nothing will stop a
future administration from doing so without ever providing those
children a fair day in court.
But there is time to reverse course. We urge the administration to
adopt the concrete recommendations laid out in this paper: prohibit
the issuance of in absentia removal orders against unrepresented
children; terminate the Dedicated Docket; and ensure legal represen-
tation for all children in removal proceedings. To do so would make
real the Biden administration’s promise of a fair and humane immi-
gration system for children.
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Read the complete report at the above link.
This should be a fixable problem! Instead, Congress and the Administration are fixated on making things worse for children and other legal asylum seekers at the border. What’s happening in the Senate now is neither a “negotiation” nor does it have much to do with “national security.”
It’s mostly about bullying the most vulnerable while diverting attention from the failure of all three branches of Government to address human migration and human rights in an rational, lawful, and constructive manner.
Artificially inflating and manipulating “in absentia” order statistics has been a long-time practice of EOIR under Administrations of both parties. The DOJ and EOIR use their own unfair procedures to paint a false picture of individuals evading the system.
In reality, statistics show that the overwhelming majority of those able to secure representation and therefore understand the “system” want fair merits decisions on their asylum applications.
But, as many who, unlike Garland and his minions, have actually practiced in the dysfunctional Immigration Courts know, getting a timely merits hearing on meritorious, already-prepared cases can be “mission impossible” in a system wedded to “Aimless Docket Reshuffling” and lacking in dynamic due-process-focused expert leadership!
Additionally, “notice” problems at EOIR are endemic — now reaching the Supremes for the third time (after being blown out on the first two trips) in a “supreme dereliction of duty” by Garland’s DOJ. Haphazard notice procedures and endless delays are also major contributors to the abuse of children in Immigraton Court.
Melissa Del Bosque Border Reporter PHOTO: Melissadelbosque.comCaitlyn Yates Fellow Strauss Center for International Law & Security PHOTO: Strauss Center
This podcast from Melissa Del Bosque of The Border Chronicle and Caitlyn Yates, who actually works with migrants in the Darien Gap, gives real life perspective on the humanitarian crisis and all the reasons why more cruelty, punishment, and deadly deterrence isn’t going to solve the flow of forced migrants. But, unhappily, policy makers aren’t interested in the voices of those who actually have experience with forced migrants, nor are they interested in learning from the forced migrants themselves — a logical — if constantly ignored — starting point for making sound policy decisions!
Migration and human rights experts have excelled in court and academia. Yet, they have been consigned to wander the political wilderness, their wisdom, expertise, and real world solutions are routinely ignored or mindlessly rejected by both political parties. Colmar – Unterlinden Museum – The Isenheim Altarpiece 1512-16 by Matthias Grünewald (ca 1470-1528) – Visit of Saint Anthony the Great to Saint Paul the Hermit in the Wilderness Creative Commons
Four “takeaways” on what a consensus on migration should be:
Human migration is real;
Forced migration is largely beyond the unilateral control of any one nation;
Deterrence alone won’t stop migration;
More legal pathways for migration are necessary.
We’re a long way from that needed consensus right now!
A robust asylum system is essential to national security. A closed border is as dangerous as an open border. If you close the asylum system, they will just cross illegally. Republicans need the border out of control. This is a trap!
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That’s it in a nutshell! Reality and practicality have nothing to do with it. It’s about the GOP creating chaos and fanning hate! Unhappily, Dems fall for it — every time! That’s why American democracy is on the ropes!
The Dems have ready access to the greatest “treasure trove” of real life expertise and truth about the border in history. Yet, they routinely ignore it and let themselves be “hoodwinked” by GOP nativists peddling lies, hate, and myths. It’s seriously undermining our democracy while squandering human lives and potential!
There’s deep irony in “national security” being disingenuously parroted by a party lead by a demagogue who encouraged actual insurrection against the U.S. Government! Yet Dems and the “mainstream media” fall for it! Gimmie a break!
WASHINGTON (AP) – President Joe Biden is taking a more active role in Senate negotiations about changes to the immigration system that Republicans are demanding in exchange for providing money to Ukraine in its fight against Russia and Israel for the war with Hamas.
The Democratic president has said he is willing to make “significant compromises on the border” as Republicans block the wartime aid in Congress. The White House is expected to get more involved in talks this week as the impasse over changes to border policy has deepened and the money remaining for Ukraine has dwindled.
Republican Sen. James Lankford of Oklahoma, who is leading the negotiations, pointed to the surge of people entering the U.S. from Mexico and said “it is literally spiraling out of control.”
But many immigration advocates, including some Democrats, say some of the changes being proposed would gut protections for people who desperately need help and would not really ease the chaos at the border.
Connecticut Sen. Chris Murphy, the top Democratic bargainer, said the White House would take a more active role in the talks. But he also panned Republican policy demands so far as “unreasonable.”
. . . .
Critics say the problem is that most people do not end up getting asylum when their case finally makes it to immigration court. But they say migrants know that if they claim asylum, they essentially will be allowed to stay in America for years.
“People aren’t necessarily coming to apply for asylum as much to access that asylum adjudication process,” said Andrew Arthur, a former immigration court judge and fellow at the Center for Immigration Studies, which advocates for less immigration in the U.S.
Some of what lawmakers are discussing would raise the bar that migrants need to meet during that initial credible fear interview. Those who do not meet it would be sent home.
But Paul Schmidt, a retired immigration court judge who blogs about immigration court issues, said the credible fear interview was never intended to be so tough. Migrants are doing the interview soon after arriving at the border from an often arduous and traumatizing journey, he said. Schmidt said the interview is more of an “initial screening” to weed out those with frivolous asylum claims.
Schmidt also questioned the argument that most migrants fail their final asylum screening. He said some immigration judges apply overly restrictive standards and that the system is so backlogged that it is hard to know exactly what the most recent and reliable statistics are.
. . . .
WHAT MIGHT THESE CHANGES DO?
Much of the disagreement over these proposed changes comes down to whether people think deterrence works.
Arthur, the former immigration court judge, thinks it does. He said changes to the credible fear asylum standards and restrictions on the use of humanitarian parole would be a “game changer.” He said it would be a “costly endeavor” as the government would have to detain and deport many more migrants than today. But, he argued, eventually the numbers of people arriving would drop.
But others, like Schmidt, the retired immigration court judge, say migrants are so desperate, they will come anyway and make dangerous journeys to evade Border Patrol.
“Desperate people do desperate things,” he said.
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Ignoring both the powerful forces that drive human migration and folks who actually work with migrants at the border and in foreign countries seems like a totally insane way to “debate policy.” But, then, whoever said this “nativist-driven debate” on enhanced cruelty, dismantling the rule of law, and de-humanization is rational?
You can read Rebecca’s full article, with an “accessible” explanation of what’s at stake and what’s being proposed at the above link.
Hon. Thomas Lister Retired Jackson County (WI) Circuit JudgeHon. Paul Wickham Schmidt U.S. Immigration Judge (Ret.) Adjunct Professor, Georgetown Law Blogger, immigrationcourtside.com
We graduated from UW Law School in 1973. As retired judges we have been searching for ways in which individuals like us and our many retired judicial colleagues can use our unique legal skill sets to aid in addressing the humanitarian crisis at our borders. In that spirit, we propose to Congress, the Administration, and other decision-makers involved, the creation of “Judges Without Borders.” First, here is a brief summary of our respective backgrounds.
Paul Wickham Schmidt served as a U.S. Immigration Judge, U.S. Department of Justice (“DOJ”) in Arlington, Virginia (2003-16), after being an Appellate Judge of the Board of Immigration, Appeals (1995-2003), where he was Board Chair for six years. He authored the landmark decision: Matter of Kasinga, extending asylum protection to victims of female genital mutilation. He previously served as Acting General Counsel and Deputy General Counsel (1979-87) of the former Immigration and Naturalization Service, and was instrumental in developing the rules and procedures to implement the Immigration Reform and Control Act of 1986, as well as establishing the modern Immigration Court system in the DOJ. His experience also includes being a partner in two major law firms, Jones Day and Fragomen.
Paul is retired, and now is an Adjunct Professor of Law at Georgetown University Law Center. He has authored numerous articles on immigration law and speaks, lectures, and writes in forums throughout the nation on contemporary immigration issues, due process, and U.S. Immigration Court reform. He publishes the blog immigrationcourtside.com and is a member of the Round Table of Former Immigration Judges and BIA Appellate Judges.
I am a former district attorney, county corporation counsel, trial lawyer, and circuit court judge. While serving as a judge, I formed a collaborative justice coordinating council, and received one of only two national multi-year grants designed to create family treatment courts, addressing not only the needs of drug and alcohol dependent individuals, but their families as well through a holistic approach and diversion programming. I worked closely with the Ho-Chunk Nation to help create its Healing to Wellness Courts. Upon retiring, I led a successful litigation effort to stop the proliferation of frac-sand mining in Wisconsin’s Driftless region, utilizing anticipatory private-nuisance doctrine.
For the last several years, we have sought to find ways to help those who legally seek to gain asylum in the United States. Initially we proposed an initiative whereby retired State, and Federal judges would volunteer to attend a multi-week program to become trained in the laws and procedures governing eligibility screening; then potentially, aiding the overwhelmed corps of Immigration Judges by pre-filtering hundreds of thousands of potentially meritorious asylum claims, while at the same time advising those who likely will not qualify, that they probably will, potentially after many months of detention, be deported to their native country, or a safer alternative destination. We contemplated that retired judges could also be available to take some of the routine procedural and adjudicative burdens off of Immigration Judges so that they could concentrate on adjudications such as asylum, requiring their specialized training and experience.
Most of those seeking asylum at our border have experienced some type of trauma in their home countries. However, because the international refugee definition that the U.S. has adopted covers only harm resulting from race, religion, nationality, political opinion, or membership in a particular social group, and the evidentiary burdens can be daunting, some of those who have been harmed or reasonably fear harm will not be able to meet the legal criteria for asylum in the U.S. In such cases, individuals will have risked their, and perhaps their family’s lives, and their limited resources on a dangerous journey to the U.S. border, that can only end in rejection, perhaps detention, prosecution, separation from family, and ultimately expulsion to their home countries or to potentially dangerous conditions in Mexico.
To better and more constructively address this untenable and inhumane situation, we now propose “Judges Without Borders.” This group would consist of trained volunteers with prior judicial experience who are willing to dedicate some time to the task of going into venues south of our border, as well as resettlement centers in the U.S., to meet, consider and screen those claiming a right to asylum, to assess their likelihood of success, and to address and advise them accordingly, humanely, and realistically, regarding what most probably lies ahead for them. We also see an opportunity to be of service to overwhelmed NGOs and legal services providers in the United States in screening potential asylum cases and advising those unlikely to succeed on what, if any, other options they might have in individual circumstances.
Ideally, our review panels would consist of three judges: one Democrat, one Republican and one Independent for a balanced, realistic, and comprehensive approach. Interviews would be held in venues that are outside the applicant’s native country, to protect potential asylum seekers from retribution. The information gathered would be confidential, so that it could not be used against the potential applicants.
We believe that by using the skills of retired jurists with high level practical experience in assessing legal claims, Judges Without Borders, could go a long way to relieving the swamped immigration system, providing accurate helpful information about the realities of the U.S. asylum and immigration systems so that individuals can make informed life decisions, reducing the flow of immigrants dangerously entering or attempting to enter the U.S. with false hopes, and correcting misinformation about the U.S. system provided by human smugglers and other illegal operatives who exploit the predicament of desperate individuals. Volunteer judges, who generally are on pensions or some other type of pre-existing retirement income, would serve without pay, receiving only travel food, and lodging expenses.
If our elected leaders really want to solve the humanitarian crisis at the border, we believe that they ultimately must consider other practical and potentially expansive reforms to deal more realistically and humanely with the realities of 21st century migration, and to constructively reform our currently dysfunctional asylum adjudication system and our legal immigration systems which were developed to deal with past realities in worldwide migration that might no longer apply. However, in the interim, we believe that everything possible, including some new, creative, budget-friendly approaches, must be used to alleviate the humanitarian crisis and unnecessary suffering (even death) at our borders.
We recognize that practical solutions will not be easy as there are many corporate interests profiting from private immigration detention, wall-building, river barriers, and all sorts of so-called “border, security technology,” much of which is expensive, yet ultimately ineffective in dealing with the root causes of human migration. The money saved would be better spent on honoring our nation’s solemn pledge to support our allies, with whatever it takes, for as long as it takes, while also honoring our legal and humanitarian commitments to refugees. We must remain a nation that demonstrates humanitarian leadership and can be trusted by the world, to keep our promises, particularly to some of the world’s most vulnerable humans.
Thank you for considering our proposal. We stand ready to help in any way possible.
Respectfully submitted,
Hon. (Ret.) Thomas E. Lister, J.D.
Hon. Paul Wickham Schmidt
U.S. Immigration Judge (Retired)
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Five decades after our graduation from U.W. Law, we’re still thinking “outside the box” of ways to improve our legal system. Retired American judges represent a societal investment in high-level decision-making and problem-solving! Why not keep using those talents in creative ways after regular service on the bench ends?
Unlike ramping up permanent, or even temporary, government hiring, volunteer retired judges, from all systems, are a flexible, low-cost, high-return potential resource that can be quickly deployed and adjusted, redeployed, or “un-deployed” as emergencies arise and are resolved!
BIA Asylum Panel In Action — After three years of ignoring experts on how to fix asylum and the border, the Biden Administration appears ready to join GOP nativists in throwing vulnerable legal asylum seekers and their supporters “under the bus.” Cartels and criminal smugglers undoubtedly are looking forward to “filling the gap” left by the demise of the legal asylum system! They will be “the only game in town’” for those seeking life-saving refuge! There is no record of increased cruelty and suspension of the rule of law “solving” migration flows, although an increase in exploitation and death of migrants seems inevitable. Perhaps, that’s just “collateral damage” to U.S. politicos. Albrecht Dürer, Public domain, via Wikimedia Commons
Dan Kowalski reports for LexisNexis Immigration Community:
[T]he Board found that Sebastian-Sebastian failed to demonstrate a nexus between her particular social groups and the harm she faced. In its denial of CAT protection, the Board found that Sebastian-Sebastian failed to demonstrate that she is more likely than not to be tortured if removed to Guatemala. On appeal, Sebastian-Sebastian argues that the Board’s conclusions were not supported by substantial evidence on the record as a whole. Because the Board’s failure to make necessary findings as to the asylum and withholding of removal claims is erroneous, but its conclusion as to Sebastian-Sebastian’s CAT claim is supported by substantial evidence, we GRANT Sebastian-Sebastian’s petition for review in part, DENY in part, VACATE the Board’s denial of her application for asylum and withholding of removal, and REMAND to the Board for reconsideration consistent with our opinion.”
[Hats off to Jaime B. Naini and Ashley Robinson! N.B., the motion for stay of removal was denied. I have a call in to the attorneys to find out if she was removed…]
Rather than looking for ways to restrict or eliminate asylum, Congress and the Administration should be concerned about quality-control and expertise reforms in asylum adjudication, including a long-overdue independent Article I Immigration Court! Once again, the BIA violates Circuit precedent to deny asylum.
The answer to systemically unfair, (intentionally) unduly restrictive interpretations, and often illegal treatment of asylum seekers by the USG should not be to further punish asylum seekers! It should be fixing the asylum adjudication system to comply with due process, fundamental fairness, best practices, and professionalism!
Casey Carter Swegman Director of Public Policy at the Tahirih Justice Center PHOTO: Tahirih Justice Center
Here’s a statement from the Tahirih Justice Center about the disgraceful “negotiations” now taking place in Congress:
The Tahirih Justice Center is outraged by the news that the administration appears willing to play politics with human lives. These attacks on immigrants and people seeking asylum represent not simply a broken promise, but a betrayal and we urge the President and Congress to reverse course.
“I am gravely concerned that, if passed, these policies will further trap and endanger immigrant survivors of gender-based violence. Selling out asylum seekers and immigrant communities under the guise of ‘border security’ in order to pass a supplemental funding package is absolutely unacceptable,” said Casey Carter Swegman, Director of Public Policy at the Tahirih Justice Center. “And we know the impact of these cruel, deterrence-based policies will land disproportionately on already marginalized immigrants of color. I urge the White House and Congress not to sell out immigrants and asylum seekers for a funding deal.”
Every day, people fleeing persecution – including survivors of gender-based violence – arrive at our border having escaped unspeakable violence. Raising the fear standard, enacting a travel ban, putting a cap on asylum seekers, and expanding expedited removal nationwide (to name just a few proposals that have been floated in recent days) will do nothing to solve the challenges at the southern border and serve only to create more confusion, narrow pathways to humanitarian relief, increase the risk of revictimization and suffering, and punish immigrants seeking safety and a life of dignity.
These kinds of proposals double down on the climate of fear that many immigrants in this country already face on a day-to-day basis and will disproportionately impact Black, Brown and Indigenous immigrant communities.Immigrants should not be met with hostile and unmanageable policies that violate their humanity as well as their legal rights. We can and must do better.
These are “negotiations” in which those whose legal rights and humanity are being “compromised” (that is, tossed away) have no voice at the table as politicos ponder what will best suit their own interests.
Courtney Greene Accredited Representative Catholic Charities of Central Texas VIISTA Villanova Grad PHOTO: Linkedin
Dear Judge Schmidt,
I hope this email finds you well, with the holiday season upon us.
I wanted to write and tell you again how much the training last spring stands out in my mind as a highlight for 2023. I received my full accreditation in June and have represented three different clients in proceedings so far. The judges in San Antonio have been very open to dismissing cases, and two of the three cases were dismissed as an exercise of prosecutorial discretion! Our clients have been able to apply for asylum affirmatively and hopefully will be successful, even though we anticipate a very long wait for their interviews. I have also completed U visa filings, a T visa filing, family petitions and lots and lots of work permits. Mailing every filing fills me with so much hope.
I hope that I will get a chance to see you again at a future VIISTA event!
Best,
Courtney
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Thanks so much Courtney!
Rather than looking for expensive ways to diminish asylum-seekers’ rights and inflict more cruelty, Congress and the Administration should be investing in cost-effective programs like VIISTA that actually work, protect rights, and have promise for the future!
Building hope rather than intentionally causing despair!😎 Why don’t our public officials “get it?”
Rachel Perić Executive Director Welcoming America PHOTO: X
Rachel writes on LinkedIn:
As I head to Geneva to participate in the UN Global Refugee Forum, representing Welcoming America and also as a proud member of the Refugee Council USA (RCUSA), it’s timely to see this narrative-shifting story in the The Washington Post about the power of local leaders to advance a #welcoming infrastructure and reframe who #belongs in an era of migration.
I’m looking forward to presenting more on the movement to show that – far from the narratives of scarcity and chaos being presented by the far right – cities and towns, large and small, rural and urban, are showing that abundance, capacity, and human rights can be driving values.And also putting these values into practice through policies that earn them the designation of #certifiedwelcoming.
Thank you to Pittsburgh Mayor Gainey and his staff, especially Feyisola Akintola (formerly Alabi) MBA, MSUS, featured in this story, for your inspiring leadership and commitment.
And to so many others across the country and globe who are lighting the way.
You can read the WashPost article at the link above.
The WashPost article by Tim Craig is one of the more insightful pieces on migration and the border published by the “mainstream media” recently. This is a great story! Why has the Biden Administration done such a horrible job of asylum seeker resettlement? Also, seems like some missed potential for NGOs to fill the gap in getting folks to places where they are needed and will be appreciated.
“We are not here to reject any immigration. As a matter of fact, we want to make this the most safe, welcoming, thriving place in America, and you can’t do that without immigration,” Pittsburgh Mayor Ed Gainey (D) said in an interview, adding that he does not make distinctions on the basis of someone’s immigration status or how the person entered the country. “Why wouldn’t we want them?”
Thanks so much for your dynamic, inspirational, humanitarian leadership, Rachel! The Administration, Congress, and the media would do well to pay more attention to what experts like you are saying and reject the cruel, anti-humanitarian, false narratives that currently appear to be “guiding” the one-sided asylum “debate” in Congress!
U.S. immigration law and policy, including border security and asylum, have nothing to do with Ukraine, NATO, Russia and Putin. Right?
Wrong, if you are a Republican in Congress. Here, let Sen. John Cornyn (R-TX) explain: “I think … Schumer will realize we’re serious … and then the discussions will begin in earnest.”
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If you are still having trouble with the concept, I’ll translate for you: “Yes, we understand and agree that Russia cannot be allowed to take over Ukraine, and we will fund aid to Ukraine, but in exchange, we insist on fundamental changes to our immigration laws to make sure no more Brown people come to America, starting right effing now.” (“Brown,” in this context, means anyone who is poor, Latin American, Asian, African, non-Anglophone…you get the idea.)
How will this play out in the next few weeks? I see three options: 1) Biden and the Dems cave, so the 1980 Refugee Act is scrapped, Dreamers get deported, the southern border is further militarized, and the economy tanks because a good chunk of the workforce is afraid to come to work; or 2) the GOP does a Tuberville and caves; or 3) the Unknown Unknown.
Stay tuned…
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Thanks for telling it like it is, Dan! There is no validity to the GOP’s attempt to punish asylum seekers by unconscionably returning them to danger and death with no process.
The cruelty and threat to life from forcing desperate seekers to wait in dangerous conditions in Mexico, pushing them to attempt entry in ever more deadly locations along the border, detaining them in inhumane substandard prisons in the U.S., and or returning them without meaningful screening by qualified independent decision-makers is overwhelming. That Congress, the Administration, and much of the “mainstream media” choose to ignore, and often intentionally misrepresent, truth and reality about the horrible human and fiscal wastefulness of “border deterrence” doesn’t change these facts!
The Administration’s three year failure to build a functional, robust asylum system at the border with humane reception centers, access to legal assistance, a rational resettlement system, and sweeping, readily achievable, administrative reforms and leadership changes at EOIR and the Asylum Office (as laid out by experts, whose views were dismissed) is also inexcusable.
Yet, the media misrepresents this farce as a “debate.” It’s a false “debate” in which neither disingenuous “side” speaks for the endangered humans whose rights and lives they are bargaining away to mask their own failures and immorality.
Some Article III Judges recognize that “deport at any cost” at EOIR is a “bad look” for American justice! https://www.flickr.com/photos/rasputin243/ Creative Commons License
In this case, involving a woman and her two children, EOIR engaged in “Aimless Docket Reshuffling” by unilaterally moving the respondents hearing to an earlier date — arguably a due process denial in and of itself given the coordination and preparation necessary to competently present merits cases in Immigration Court. Then, EOIR failed to give legally sufficient notice of the arbitrarily accelerated hearing — a common occurrence in this dysfunctional and poorly administered system, as most practitioners would tell you.
Indeed, the defective notice was returned to EOIR, so the IJ knew that the respondent was never properly notified of the hearing. Nevertheless, ICE improperly moved for an in absentia order and the the IJ erroneously granted it.
Upon learning of the illegal “in absentia” order entered against her, the respondent promptly moved to reopen, providing unrebutted evidence of non-receipt of notice. The IJ erroneously denied the motion.
On appeal, the BIA compounded this farce by wrongfully affirming the IJ’s clearly wrong decision. Instead of confessing error, OIL advanced frivolous arguments for dismissal, falsely claiming dilatory action by the respondent, even though there is no “time bar” on a motion to reopen for defective notice.
The Ninth Circuit summarily reversed in an (unfortunately) unpublished decision. Circuit Judges Friedland and Paez, obviously and justifiably upset by this totally preventable travesty, were motivated to enter a separate concurring opinion commenting on the unprofessional “clown show” 🤡 operating at EOIR:
FRIEDLAND, Circuit Judge, with whom Circuit Judge PAEZ joins, concurring:
When the date of a removal hearing changes, the Government is required to provide a Notice of Hearing (“NOH”) containing the new date and time. 8 U.S.C. § 1229(a)(2)(A). If a person fails to appear for her hearing, she shall be removed in absentia only “if the Service establishes by clear, unequivocal, and convincing evidence that the written notice [of the hearing] was so provided.” Id. § 1229a(b)(5)(A).
Here, when Ontiveros Lozano’s removal hearing date was moved up, the Government mailed her an NOH, but it was returned as undeliverable over a month before her scheduled hearing. Ontiveros Lozano therefore indisputably did not receive the required notice, and the Government knew this. Yet the Government requested and received an in absentia removal order against Ontiveros Lozano when she did not appear for her scheduled hearing. In doing so, the Government violated the explicit statutory requirement in § 1229a(b)(5)(A).
The Government now argues that Ontiveros Lozano’s removal proceedings should not be reopened because she was not diligent in discovering the Government’s conduct and because she has forfeited her challenge to the entry of the in absentia removal order.
The Government’s duty should be to seek justice, not to deport people at any cost. In my view, it lost sight of that duty here.
The full ugliness and dysfunction of EOIR and the DOJ are on display here:
Aimless Docket Reshuffling in action;
Defective notice;
Violation of statutory requirements;
Defective administration of justice;
Unethical actions by ICE counsel in requesting an in absentia order knowing full well that the respondent had never received notice;
Stunningly poor trial judging (2X);
Horrible appellate judging;
Frivolous defense of an unjust decision by OIL.
This system is broken! It’s promoting injustice and clogging the Article III Courts with poor quality work product by USG “judges” and attorneys who aren’t up to or well-qualified for their jobs. The focus on “removal at any cost” rather than due process and justice is unconstitutional and unethical. It comes from poor leadership from the Attorney General on down! The only question is why isn’t anybody in charge motivated to fix it!
A quarter century ago, the “EOIR vision” was a noble one: “Through teamwork and innovation be the world’s best administrative tribunals, guaranteeing fairness and due process for all!” It was even posted on the website! Not only has that noble vision disappeared, both literally and figuratively, but over the last two decades Administrations of both parties have degraded justice and functionality at EOIR — some intentionally, some negligently, sometimes a toxic combination of the two.
In the absence of Article I legislation, what EOIR and the DOJ immigration bureaucracy need is a thorough housecleaning, new dynamic, due-process-focused expert leadership, and better judges at both levels. Letting EOIR continue its “death spiral,” as the Biden Administration has done, is totally unacceptable!🤯
Many thanks and appreciation to one of our newest Round Table 🛡️ members, Judge Sandy Hom, recently retired from the New York Immigration Court, for spotting this unpublished opinion and forwarding it! It’s the kind of common purpose, collegiality, and teamwork that is largely absent from today’s dysfunctional EOIR!
The agency is still considering referred applicants from the previous announcement posted September 25, 2023, under announcement number, IJ-12116877-23-VG. If you applied under that announcement and were referred for consideration, you need not reapply under this announcement.
This is an Excepted Service position. Upon completion of the required trial period, the position will be permanent. Additional positions may be filled from this announcement within 90 days of certificate issuance.
This position is in the Executive Office for Immigration Review (EOIR), Office of the Chief Immigration Judge. EOIR seeks highly-qualified individuals to join our team of expert professionals who serve as immigration adjudicators in this important Agency.
EOIR plays a pivotal role in the administration of the Nation’s immigration system. EOIR’s mission is to adjudicate immigration cases fairly, equitably, and efficiently at the trial and appellate level, governed by due process and the rule of law. Under delegated authority from the Attorney General, EOIR conducts immigration court proceedings, appellate reviews, and other administrative hearings, applying the immigration laws while ensuring that adjudicators are impartial, that laws are applied humanely and equitably, that all parties are treated with respect and dignity, and that cases are resolved expeditiously and in accordance with the Administration’s priorities and all applicable laws and regulations.
EOIR consists of three adjudicatory components: the Office of the Chief Immigration Judge, which is responsible for managing the numerous immigration courts located throughout the United States where immigration judges adjudicate individual cases; the Board of Immigration Appeals, which primarily conducts appellate reviews of the immigration judges’ decisions; and the Office of the Chief Administrative Hearing Officer, which adjudicates immigration-related employment cases. EOIR’s Headquarters is located in Falls Church, Virginia, about 10 miles from downtown Washington, DC.
As the federal agency whose mission is to ensure the fair and impartial administration of justice for all Americans, the Department of Justice is committed to fostering a diverse and inclusive work environment. To build and retain a workforce that reflects the diverse experiences and perspectives of the American people, we welcome applicants from the many communities, identities, races, ethnicities, backgrounds, abilities, religions, and cultures of the United States who share our commitment to public service.
Job Description
Immigration Judges preside in formal, quasi-judicial hearings. Proceedings before Immigration Judges include but are not limited to removal, and bond adjudications, and involve issues of removability as well as applications for relief such as asylum, withholding of removal, protection under the Convention Against Torture, cancellation of removal, and adjustment of status.
Immigration Judges make decisions that are final, subject to appeal to the Board of Immigration Appeals. In connection with these proceedings, Immigration Judges exercise certain discretionary powers as provided by law, and are required to exercise independent judgment in reaching final decisions. Immigration Judges may be required to conduct hearings in penal institutions and other remote locations
Qualifications
In order to qualify for the Immigration Judge position, applicants must meet all of the following minimum qualifications:
Education: Applicants must possess a LL.B., J.D., or LL.M. degree. (Provide the month and year in which you obtained your degree and the name of the College or University from which it was conferred/awarded.)
AND
Licensure: Applicants must be an active member of the bar, duly licensed and authorized to practice law as an attorney under the laws of any state, territory of the U.S., or the District of Columbia. (Provide the month and year in which you obtained your first license and the State from which it was issued.)
AND
Experience: Applicants must have seven (7) years of post-bar admission experience as a licensed attorney preparing for, participating in, and/or appealing court or administrative agency proceedings at the Federal, State or local level. Qualifying trial experience involves cases in which a complaint was filed with a court or administrative agency, or a charging document (e.g., indictment, notice of violation, or information) was issued by a court, administrative entity, a grand jury, or appropriate military authority. Relevant administrative experience includes cases in which a formal procedure was initiated by a governmental administrative body.
NOTE: Qualifying experience is calculated only after bar admission.
IN DESCRIBING YOUR EXPERIENCE, PLEASE BE CLEAR AND SPECIFIC. WE MAY NOT MAKE ASSUMPTIONS REGARDING YOUR EXPERIENCE. If your resume does not support your assessment questionnaire answers, we will not allow credit for your response(s). Ensure that your resume contains your full name, address, phone number, email address, and employment information. Each position listed on your resume must include: From/To dates of employment (MM/YYYY-MM/YYYY or MM/YYYY to Present); agency/employer name; position title; Federal grade level(s) held, if applicable; hours, if less than full time; and duties performed. In addition, any experience on less than a full time basis must specify the percentage and length of time spent in performance of such duties.
Additional information
This is an Excepted Service position, subject to a probationary period. The initial appointment is for a period not to exceed 24 months. Conversion to a permanent position is contingent upon appointment by the Attorney General.
Additional positions may be filled from this announcement within 90 days of certificate issuance.
Alternative work schedule options are available. Immigration Judges’ tour of duty may include Saturdays and Sundays.
There is no formal rating system for applying veterans’ preference to Immigration Judge appointments in the excepted service; however, the Department of Justice considers veterans’ preference eligibility as a positive factor in Immigration Judge hiring. Applicants eligible for veterans’ preference must claim their status when completing their application in the online application process and attach supporting documentation. (See the “Required Documents” section.)
Many vacancies (see below vacancy link for locations): Location Negotiable After Selection
Travel
50% or less – You may be expected to travel for this position.
Relocation Expenses
Not authorized
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Department Policies
Equal Employment Opportunity: The U.S. Department of Justice is an Equal Opportunity/Reasonable Accommodation Employer. Except where otherwise provided by law, there will be no discrimination because of race, color, religion, national origin, sex – including gender identity, sexual orientation, or pregnancy status – or because of age (over 40), physical or mental disability, protected genetic information, parental status, marital status, political affiliation, or any other non-merit based factor. The Department of Justice welcomes and encourages applications from persons with physical and mental disabilities. The Department is firmly committed to satisfying its affirmative obligations under the Rehabilitation Act of 1973, to ensure that persons with disabilities have every opportunity to be hired and advanced on the basis of merit within the Department of Justice. For more information, please review our full EEO Statement.
Reasonable Accommodations: This agency provides reasonable accommodation to applicants with disabilities where appropriate. If you need a reasonable accommodation for any part of the application and hiring process, please notify the agency. Determinations on requests for reasonable accommodation will be made on a case-by-case basis.
Outreach and Recruitment for Qualified Applicants with Disabilities: The Department encourages qualified applicants with disabilities, including individuals with targeted/severe disabilities to apply in response to posted vacancy announcements. Qualified applicants with targeted/severe disabilities may be eligible for direct hire, non-competitive appointment under Schedule A (5 C.F.R. § 213.3102(u)) hiring authority. Individuals with disabilities are encouraged to contact one of the Department’s Disability Points of Contact (DPOC) to express an interest in being considered for a position. See list of DPOCs.
Suitability and Citizenship: It is the policy of the Department to achieve a drug-free workplace and persons selected for employment will be required to pass a drug test which screens for illegal drug use prior to final appointment. Employment is also contingent upon the completion and satisfactory adjudication of a background investigation. Congress generally prohibits agencies from employing non-citizens within the United States, except for a few narrow exceptions as set forth in the annual Appropriations Act (see, https://www.usajobs.gov/Help/working-in-government/non-citizens/Links to other government and non-government sites will typically appear with the “external link” icon to indicate that you are leaving the Department of Justice website when you click the link.). Pursuant to DOJ component policies, only U.S. citizens are eligible for employment with the Executive Office for Immigration Review, U.S. Trustee’s Offices, and the Federal Bureau of Investigation. Unless otherwise indicated in a particular job advertisement, qualifying non-U.S. citizens meeting immigration and appropriations law criteria may apply for employment with other DOJ organizations. However, please be advised that the appointment of non-U.S. citizens is extremely rare; such appointments would be possible only if necessary to accomplish the Department’s mission and would be subject to strict security requirements. Applicants who hold dual citizenship in the U.S. and another country will be considered on a case-by-case basis. All DOJ employees are subject to a residency requirement. Candidates must have lived in the United States for at least three of the past five years. The three-year period is cumulative, not necessarily consecutive. Federal or military employees, or dependents of federal or military employees serving overseas, are excepted from this requirement. This is a Department security requirement which is waived only for extreme circumstances and handled on a case-by-case basis.
Veterans: There is no formal rating system for applying veterans’ preference to attorney appointments in the excepted service; however, the Department of Justice considers veterans’ preference eligibility as a positive factor in attorney hiring. Applicants eligible for veterans’ preference must include that information in their cover letter or resume and attach supporting documentation (e.g., the DD 214, Certificate of Release or Discharge from Active Duty and other supporting documentation) to their submissions. Although the “point” system is not used, per se, applicants eligible to claim 10-point preference must submit Standard Form (SF) 15, Application for 10-Point Veteran Preference, and submit the supporting documentation required for the specific type of preference claimed (visit the OPM website, www.opm.gov/forms/pdf_fill/SF15.pdfLinks to other government and non-government sites will typically appear with the “external link” icon to indicate that you are leaving the Department of Justice website when you click the link. for a copy of SF 15, which lists the types of 10-point preferences and the required supporting document(s). Applicants should note that SF 15 requires supporting documentation associated with service- connected disabilities or receipt of nonservice-connected disability pensions to be dated 1991 or later except in the case of service members submitting official statements or retirement orders from a branch of the Armed Forces showing that their retirement was due to a permanent service-connected disability or that they were transferred to the permanent disability retired list (the statement or retirement orders must indicate that the disability is 10% or more).
USAO Residency Requirement: Assistant United States Attorneys must reside in the district to which appointed or within 25 miles thereof. See 28 U.S.C. 545 for district specific information.
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This and other vacancy announcements can be found under Attorney Vacancies and Volunteer Legal Internships. The Department of Justice cannot control further dissemination and/or posting of information contained in this vacancy announcement. Such posting and/or dissemination is not an endorsement by the Department of the organization or group disseminating and/or posting the information.
Updated December 1, 2023
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Yes, I’ve been highly critical of EOIR, particularly the BIA. But, to change the system for the better, we need the “best and brightest judges” at the “retail level” — the U.S. Immigration Courts!
In the process of denying asylum to a family targeted by gangs in Mexico, the BIA says:
The Immigration Judge’s finding that the cartel was motived by a desire to control the respondents’ land rather than their family membership is a permissible view of the evidence and is not clearly erroneous.
This negative finding by the IJ was “permissible,” not “compelled.” That language admits that other fact-findings on the same evidence could also be “permissible.” Much depends on the individual Immigration Judge’s frame of reference and willingness to look for “reasons to protect” rather than defaulting to “reasons to reject.”
So, what if the IJ were able to see and understand asylum from the standpoint of the applicant, rather than defaulting to the EOIR “any reason to deny” approach? Fairer fact-findings below would require more careful review by the BIA. Rather than just being able to mindlessly affirm adverse findings below, the BIA would basically be legally bound to uphold more positive findings unless “clearly erroneous.”
Of course in their haste to deny some BIA panels are prone to violate the “clearly erroneous” standard to “get to no.” But, that increases the chances of Circuit reversal. See, e.g., Crespin Valladares v. Holder, 632 F.3d 117 (4th Cir. 2011) (my case from Arlington).
Additionally, DHS can’t and doesn’t appeal every asylum grant, particularly when they are “fact bound.” I actually had ICE Assistant Chief Counsel say on the record in waiving appeal that while they respectfully disagreed with my fact-findings, they recognized that they were not “clearly erroneous” for purposes of appeal. (Other times they actually agreed after I had stated my detailed findings and analysis, sometimes actually repeating during closing arguments the basic analysis I would have reached on the record we had just made.)
Better judging below can actually cut off and discourage backlog building “let’s spin the bottle” appeals by DHS encouraged by the BIA’s systemic failure to consistently uphold the rights of asylum seekers and their “unduly restrictive” interpretations of asylum law!
Buried amongst the morass of poor administration and bad appellate judging at EOIR, many “true expert” IJs are making great decisions and saving lives on a daily basis. One of the “best kept secrets” at EOIR — often intentionally obscured by both EOIR and the media (not to mention GOP White Nationalist nativists) — is that as of this summer over half of all those who passed “credible fear” — 55% — received asylum grants if they were actually able to get to merits hearings at today’s backlogged EOIR!See, e.g., https://humanrightsfirst.org/wp-content/uploads/2023/08/Asylum-grant-rates-fact-sheet-August-2023.pdf.
That’s an impressive rate, given that the system is stacked against asylum applicants! It also highlights the total insanity of today’s discussions on the Hill of how to artificially heighten standards to bar asylum seekers and promote more arbitrary wrongful denials of life-saving protection. What’s needed is better judging and more realistic and humane policies, NOT more cruelty and misapplications of asylum law!
As I have pointed out along with others, asylum grant rates would be much higher with better judges at EOIR and better precedents from the BIA. Better guidance would mean more cases granted at the Asylum Office and Immigration Court levels and a more timely and efficient system that advances and promotes due process, rather than inhibiting it!
But, it can’t all be done “from the outside!” Better Immigration Judges — true asylum experts with “hands on” experience representing applicants before EOIR and the Asylum Office — are essential to rebuilding EOIR as a functional court system.
For example, one of the expert recommendations from the very recent Women’s Refugee Commission study of asylum reception, resettlement, and processing was that: “One pro se assistance goal is to incentivize immigration judges to take a closer look at pro se asylum cases.”
But, this laudable goal presupposes Immigration Judges who are experts in asylum law and able to “work their way through” some of the inherent barriers to justice in pro se Immigration Court cases rather than submitting to the “artificial production pressures and any reason to deny culture” that still exists at much of EOIR. Sadly, not all current IJs have this ability. Moreover, the BIA has provided defective leadership and guidance. EOIR judicial training on asylum does not measure up to much of that readily available in the private/NGO sector. See, e.g.,VIISTA Villanova.
Many practitioners who have contacted me here at “Courtside” lament that their lives and their client’s futures would be better if they only were appearing before Immigration Judges who actually understood asylum law from a protection standpoint. They are frustrated by having their fine presentations and great arguments “shrugged off” with “predetermined boiler plate denials” citing negative language from the BIA — often ignoring what actually happened or was proved at trials.
Instead of being destined to forever be frustrated by EOIR’s shortcomings, YOU now have a chance to “be that judge” — the one who understands asylum law, has seen the defects in EOIR decision-making, who doesn’t view denial as “preordained,” and will require both parties fairly to meet their burdens. (Ironically, there are many places where the asylum regulations still place the burden of proof on DHS, even if many IJs and BIA panels are unwilling to enforce them.)
So, get in those applications for EOIR judgeships! It’s a great way to show leadership by improving the system from the inside while saving lives in the process! Better judges for a better America — starting at the “retail level!”
BIA Asylum Panel In Action. The BIA’s “take no prisoners” approach to asylum law has endangered asylum seekers lives without deterring them from applying! The BIA’s convoluted approach to asylum law is one factor making hearings for unrepresented applicants inherently unfair! Albrecht Dürer, Public domain, via Wikimedia Commons
BIA HEADNOTE:
If a persecutor is targeting members of a certain family as a means of achieving some
other ultimate goal unrelated to the protected ground, family membership is incidental or
subordinate to that other ultimate goal and therefore not one central reason for the harm.
Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017), reaffirmed.
1) In any “mixed motive” case, EOIR will find that the “non-covered motive” is primary and all others are “tangental” so that the claim will be denied.
2) EOIR will ignore “but for,” “proximate cause,” and any other established legal rules of causation to maximize asylum denials.
3) Facts are irrelevant unless they support denial.
In its rush to deny, the BIA basically invents a “presumption” that family based persecution is “tangential” to some other non-qualifying ground. The respondent then must “establish, by direct or circumstantial evidenc, that their family membership is more than incidental, tangential, superficial, or subordinate to other motives.”
When Congress added the “at least one central reason” language in 2005, they clearly intended to preserve a robust “mixed motive” doctrine by indicating that there could be “more than one” central motive. The BIA, however appears to be strangling the “mixed motive” language by intentionally, and often artifically, “subordinating” qualifying motives to non-qualifying ones!
And, of course, faced with a choice of adopting Circuit law that protects or that which rejects, the BIA invariably chooses the interpretation least favorable to the asylum applicant, as they did here.
I’m not the only member of the Round Table to remark on the BIA’s questionable performance.
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
Judge “Sir Jeffrey” Chase says:
“This holding is contrary to asylum law generally and to multiple Fourth Circuit holdings to the contrary. I would also argue that it contradicts Second Circuit case law, and the Supreme Court’s holding regarding the meaning of “on account of” in Bostock v. Clayton County.”
The poor performance of the BIA in establishing asylum precedents is a major contributing factor to disorder at the border and a dysfunctional, overly complicated, unduly restrictive, hopelessly backlogged, fundamentally unfair asylum adjudication system!
ONEONTA, N.Y.—Raphael and Ngongo Joseph have been refugees for more than 20 years, but they are thinking this small college town in upstate New York will be home for the foreseeable future.
They arrived this summer from Central Africa, displaced by ethnic conflict and back to back civil wars in Burundi and the Congo. Their new home is an upstairs apartment near the Susquehanna River, where they said people have been friendly.
“We were empty-handed,” Raphael, who goes by Joseph, said in Swahili. “We came to an apartment filled with our needs.”
Ngongo works at Hartwick College, one of two schools whose students account for about half of the 12,500 residents in this former railroad hub.
Joseph and Ngongo’s settlement is an early test of a new federal program called Welcome Corps under which grass-roots groups are able to sponsor the resettlement of refugees. It, by extension, could lead to a more dispersed refugee resettlement effort that could change the character of small—and sometimes shrinking—communities like Oneonta.
But they are arriving at a time and in a region where immigration has become controversial. More than 140,000 migrants have come to New York City in the past 18 months, overwhelming its shelter system and prompting officials to begin busing asylum seekers to hotels in upstate communities, often over the objection of local officials.
. . . .
Newcomers are often painted with a broad brush, officials said, though they arrive through very different streams. The refugee-admissions program is a highly regulated system under which refugees living at camps across the globe can be nominated to come to the U.S., though they must undergo years of security and medical vetting before being allowed to move. It is entirely separate from the asylum system, which handles people after they have made it onto U.S. soil.
“We need them as much as they need us,” said Mark Wolff, a French language professor who has assisted the couple. “If you talk about immigration in the abstract, it can be scary. But when you meet people like Ngongo and Joseph you just want to help them.”
. . . .
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Read the complete article at the link.
Yes, I know that refugees coming from abroad are screened and processed differently from refugees applying for asylum in the U.S! Yet, the basic principle is the same: Help them in an orderly, rational way to get to places where they will be welcomed, can find food and shelter, and where their skills can best be used or developed. And, from a legal standpoint, refugees stand in the same position, whether they come directly from overseas or are processed in the U.S. or at our borders!
The “delays” in the overseas refugee program could be minimized with some creative problem solving when dealing with asylum applicants. That’s why experts have long urged the USG to invest in ”reception centers” for asylum seekers rather than prisons, walls, prosecutions, and other expensive, inhumane, “deterrence” measures that make the humanitarian situation worse, not better! It’s going to take some “fresh thinking,” “new blood,” and more dynamic expert leadership to stop repeating and doubling down on past mistakes and address the humanitarian reality in practical ways that recognize opportunity and minimize fear and repression.
Rational resettlement, along with a better, more timely, asylum processing system staffed with humanitarian experts, would be a far better investment for our nation than more schemes for expensive, cruel, counterproductive, likely illegal, and ultimately futile, “deterrence.” It’s a shame that our leaders and legislators are so short-sighted and driven by fear, restrictionist myths, and false narratives about migration.
Although the U.S. economy is doing well, one thing that could enable even greater expansion is affordable housing for workers and their families. Why not harness the power of immigrant innovators and refugees (of all types) to address this need for the benefit of all U.S. workers and their communities? Create visible success stories showing and realizing the opportunities and benefit to the U.S. of welcoming refugees and asylees!
