"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.
Because an appeal accepted under section 460.30 of the New York Criminal Procedure Law is classified as a direct appeal, a respondent with a pending appeal under this section does not have a final conviction for immigration purposes. Brathwaite v. Garland, 3 F.4th 542 (2d Cir. 2021), followed.
While a welcome victory for the respondent, notably, this precedent only happened because the Second Circuit had reversed and remanded the BIA’s incorrect application of the finality standards!Brathwaite v. Garland, 3 F.4th 542 (2d Cir. 2021). Without great pro bono lawyering on his side, this respondent would have joined the many others wrongfully removed by EOIR’s sloppy approach to the law and justice for persons who happen to be migrants.
In other words, the “good enough for government” approach, despite some improvements in judicial hiring, still infects EOIR under Garland. Rather than pouring more money into walls, prisons, false “deterrents,” and trying to strip rights from migrants, Congress and the Administration should be focused on solving these glaring due process and quality control issues in the current system!
As I say over and over, unlike some aspects of human migration, this is a solvable problem! It’s not rocket science! 🚀 It’s just good government, dynamic, courageous leadership, and common sense! Better judges 👩🏽⚖️ for a better America!🇺🇸
Many congrats to NDPA star attorney John Peng of Prisoners’ Legal Services of New York!
John Peng Esquire Staff Attorney Prisoners’ Legal Services of NY PHOTO: PLSNY
John is a terrific example of the importance of immigration clinical education and the Immigrant Justice Corps! Here’s his bio:
John Peng, Federal Litigation & Appellate Staff Attorney
John joined the Immigration Unit in August 2019 as an Immigrant Justice Corps Fellow. He received his J.D. from the University of Pennsylvania Law School. There, John was an active participant in the Transnational Legal Clinic and focused his coursework on immigration and international human rights law. John was admitted to practice law by the New York State Bar in January 2020.
Approximately four years out of law school, John is establishing legal precedents, saving lives, and leading the way for others! This type of “impact leadership by example” is exactly the vision that led to the establishment of the Immigrant Justice Corps! It’s also why aspiring lawyers who “want to make a difference” right off the bat should consider careers in immigration, human rights, and social justice!
WASHINGTON — An immigration judge and lawyer told a U.S. Senate Judiciary panel on Wednesday that an independent immigration court would help ease a backlog of more than 2 million pending cases.
Because the immigration court system is an arm of the U.S. Justice Department — the Executive Office for Immigration Review — each presidential administration has set immigration policy, and often those courts are subject to political interference, said Mimi Tsankov, an immigration judge, and Jeremy McKinney, an immigration attorney.
In the immigration court system, judges hold formal court proceedings to determine whether someone who is a noncitizen should be allowed to remain in the United States, or should be deported.
“Every administration has interfered with the courts. This undermines the courts’ integrity, and many of the executive branch’s manipulations of judges and their dockets simply backfire,” said McKinney, the former president of the American Immigration Lawyers Association.
Tsankov, the president of the National Association of Immigration Judges, said in order to alleviate the backlog of immigration court cases, Congress should establish an independent immigration court under Article I of the U.S. Constitution.
. . . .
“An independent board will begin the process of healing this broken system,” she said.
The witnesses also argued that many people going through the immigration system lack legal representation, which can greatly impact their outcome.
The top Republican on the Senate panel, John Cornyn of Texas, argued that most cases are without merit, as opposed to asylum cases, which are based on a credible fear of death or harm. He said that people are “clogging the courts” and are aware the severe backlogs will allow them to stay in the country. Some courts have backlogs until 2027.
Sen. Mazie Hirono, Democrat of Hawaii, pushed back.
“People who have attorneys are 10.5 times more likely to be granted relief,” she said. “So it is when they have attorneys that they can proceed with their asylum claims.”
She added that another issue is that many children who are unaccompanied, even some toddlers, are expected to legally represent themselves.
“There is no guarantee that children will also have a lawyer, and this is alarming because children are some of the most vulnerable people in our immigration system,” she said.
Cornyn said he did not believe that “the taxpayer should be on the hook” for paying for legal fees and representation.
McKinney said that those who have representation and are not detained are five times more likely to gain relief. Immigrants who are detained and have legal representation are 10 times more likely to be granted relief than those who do not have representation.
“The point is that representation ensures due process,” he said. “It also makes the system more efficient when all the parties know the rules and know how to present a case. Cases move faster.”
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Read the full article at the above link. You can also check out the full video of the hearing here:
In his opening statement, ranking GOP Sen. Cornyn made it very clear that fixing the Immigration Courts is a nonstarter for the GOP.
Instead of engaging on this critically important initiative, he wasted much of his introduction disingenuously repeating the oft-debunked claim of a connection between asylum seekers and fentanyl smuggling. See, e.g., “Who is sneaking fentanyl across the southern border? Hint: it’s not the migrants,”https://www.npr.org/2023/08/09/1191638114/fentanyl-smuggling-migrants-mexico-border-drugs.
Obviously grasping at straws, in the absence of any empirical support for his nativist “scare scenario,” Cornyn went so far as to suggest — of course without a shred of evidence — that perhaps “go-arounds” were smuggling fentanyl.
This theory appears particularly questionable in light of evidence that most fentanyl is successfully smuggled through ports of entry by U.S. citizens and legal residents. Why would cartels abandon proven successful methods of port of entry smuggling to entrust their cargos to individuals who might not even survive the border crossing and, if apprehended, would certainly be searched? Cornyn had no answer.
What does seem likely is that by concentrating border law enforcement largely on “apprehending” and fruitlessly trying to “deter” those merely seeking to turn themselves in to exercise legal rights, the USG has diverted attention and resources from real law enforcement like an anti-fentanyl strategy. That almost certainly would require undercover infiltration of smuggling rings — dangerous and sophisticated law enforcement operations far removed from “apprehending” folks who WANT to be caught because they were forced to leave their home countries, are unsafe in Mexico, and can’t wait to schedule asylum appointments at ports of entry through the badly flawed and inadequate “CBP One App!” Building a fair and efficient asylum system should even help CBP apprehend more of Sen. Cornyn’s “go arounds!”
But, Cornyn’s misdirection isn’t just a distraction; it’s actually dangerous! As the GOP has shown over and over, if you repeat a lie or myth enough times, folks start to believe it. Witness the demonstrably totally frivolous claims of election interference that drive much of the GOP’s agenda and has become “truth” for their misguided “base.”
A case in point is the outrageous political boondoggle recently carried out by Virginia’s right-wing Governor Glenn Youngkin. In response to Texas Gov. Greg Abbott’s White Nationalist plea, Youngkin wasted two million taxpayer dollars on a bogus detail of the National Guard to the Texas border, ostensibly to “protect Virginians from the scourge of fentanyl.”
What if Youngkin had spent the same amount of money supporting NGOs in Virginia struggling to resettle and represent migrants aimlessly bussed to the DMV by Abbott and DeSantis as part of a political stunt? Community social justice NGOs generally use funds more carefully and efficiently than GOP blowhards like Youngkin and co.
The GOP claim that most asylum claims are frivolous also is misleading. For those who can actually get a merits hearing on asylum at EOIR — often in and of itself no mean feat given the prevalence of “Aimless Docket Reshuffling” — TRAC statistics for FY 2022 show that 46% are granted. Seehttps://trac.syr.edu/whatsnew/email.221129.html#. And, this is in a system that is still heavily tilted against asylum seekers. EOIR still has many “holdover judges” from the Trump years who were hired not because of their expertise, qualifications, or reputations for fairness, but because their backgrounds indicated that they were likely to be unsympathetic to asylum seekers!
Admittedly, the manner in which EOIR keeps asylum statistics can make meaningful analysis difficult. For example, more than half of asylum “dispositions” are listed as “other” — which covers“abandoned, not adjudicated, other, or withdrawn,” a facially, at least partially, circular definition! Seehttps://www.justice.gov/media/1174741/dl?inline.
Moreover, since EOIR procedures generally require that all potential relief be stated at the time of pleading or presumptively be waived, prudence requires that the right to appply for asylum be protected, even if it is unlikely that the case will proceed to the merits on that application.
Also, it’s worth remembering that the Government already has a powerful tool for both identifying and quickly tossing frivolous asylum claims and expeditiously granting clearly meritorious claims to keep them out of the Immigration Court. It’s called the Asylum Office at USCIS! That despite much ballyhooed regulatory changes, DHS has failed to obtain “maximum leverage” from the credible fear/Asylum Office process is not a reason for eschewing EOIR reform!
What we can tell from the available data is that, rather than wasting more money on expensive and ineffective “deterrence gimmicks,” the best “bang for the buck” for the USG would be to invest in representation for asylum seekers and in a better, professionally-managed EOIR with better, independent judges, acknowledged experts in asylum law, who could “keep the lines moving” without denying due process or stomping on individual rights.They could also set helpful precedents for the Asylum Office. That’s what Congress and the Administration should be investing in.
Reforming the Immigration Courts and creating an independent Article I Court should be a high national priority. While no single action can bring “order to the border” overnight, fixing EOIR is an achievable priority that will support the rule of law and dramatically improve the quality and efficiency of justice at the border and throughout the U.S.
As Chairman Padilla (D-CA) said, this should be a bipartisan “no-brainer.” Just don’t look to today’s White-Nationalist-myth-driven GOP for help or rational dialogue on the subject.
Many Americans today worry that our nation is losing its national identity. Yet the core of that identity is not the whiteness of our skin or our religion or our ethnicity.
It is the ideals we share, the good we hold in common.
That common good is a set of shared commitments. To the rule of law. To democracy. To tolerance of our differences. To equal political rights and equal opportunity. To participating in our civic life. To sacrificing for the ideals we hold in common. To upholding the truth.
We cannot have a functioning society without these shared commitments. Without a shared sense of common good, there can be no “we” to begin with.
If we are losing our national identity, it is because we are losing our sense of the common good. This is what must be restored.
As I’ve argued in these essays, recovering our common good depends on several things:
It depends on establishing a new ethic of leadership based on trusteeship. Leaders must be judged not by whether they score a “win” for their side, but whether they strengthen democratic institutions and increase public trust.
It depends on honoring those who have invested in the common good, and holding accountable those who have exploited it for their own selfish ends.
It requires that we understand — and educate our children about — what we owe one another as members of the same society. Instead of focusing solely on the rights of citizenship, we need also to focus on the duties of citizenship.
And it requires a renewed commitment to truth.
Some of you may feel such a quest to be hopeless. The era we are living in offers too many illustrations of greed, narcissism, brutality, and hatefulness.
I, however, firmly believe this quest is not hopeless.
Almost every day, I witness or hear of the compassion and generosity of ordinary Americans. Their actions rarely make headlines, but they constitute much of our daily life together.
The challenge is to turn all this into a new public spiritedness extending to the highest reaches in the land — a public morality that strengthens our democracy, makes our economy work for everyone, and revives trust in the major institutions of the nation.
The moral fiber of our society has been weakened but it has not been destroyed.
We can recover the rule of law and preserve our democratic institutions by taking a more active role in politics.
We can fight against all forms of bigotry. We can strengthen the bonds that connect us to one another by reaching out to one another. We can help resurrect civility by acting more civilly toward those with whom we disagree.
We can protect the truth by using facts and logic to combat lies.
We can help restore the common good by striving for it and showing others it’s worth the effort.
We have never been a perfect union. Our finest moments have been when we sought to live up to our shared ideals.
I worked for Robert F. Kennedy a half-century ago when the common good was better understood. Resurrecting it may take another half-century, or more.
But as the theologian Reinhold Niebuhr once said, “Nothing that is worth doing can be achieved in our lifetime; therefore we must be saved by hope. Nothing which is true or beautiful or good makes complete sense in any immediate context of history.”
Thank you for joining me on this journey. I hope you’ve found these essays useful and even on occasion inspiring. I hope you’ll join me in carrying forward the fight for the common good.
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Kelly Bouchard Staff Writer Portland Press Herald PHOTO: Linkedin
Despite the uncertainty, resettlement agencies in Maine are pushing ahead, preparing to welcome as many refugees as possible. To increase their chances of finding affordable apartments, they’re building a network of landlords willing to rent to newcomers and expanding resettlement efforts beyond Greater Portland, Lewiston-Auburn and Augusta-Waterville to Bangor and Brunswick, Ouattara said.
“We can settle people within 100 miles of Lewiston-Auburn,” said Rilwan Osman, executive director of Maine Immigrant & Refugee Services in Lewiston. “We have settled some families in Augusta, and we are exploring other communities.”
The State Refugee Advisory Council held four quarterly meetings last year to connect and support various community representatives in government, public safety, schools, social services and health care, Ouattara said.
“There are resources that are available from the federal government to assist communities that accept refugees,” he said.
At least half of the new arrivals last year had family ties in Maine, Ouattara said, while the other half were “free cases” that could be resettled more widely in the state but would require more support from agency staff. Transportation continues to be a challenge for many newcomers.
“The public transit system in Maine is still in development, so that can be isolating in some communities,” he said.
Helping refugees find jobs is a top priority for resettlement agencies, which provide financial assistance and case management support for up to 90 days after arrival and limited case management and employment services for up to 60 months.
“All the refugees that are coming have permission to work as soon as they are able,” Osman said. “Some have English skills, some don’t. If they have the necessary language skills, they can at least start entry-level work within 90 days.”
One refugee who is eager to get to work is Ahmed, a recent arrival from Somalia who also declined to give his last name. Ahmed, 58, attended a cultural orientation session Wednesday at the JCA. Through an interpreter, Ahmed said he has been reunited with his wife and six children after being separated from them for 21 years.
He also said he wants to be a good citizen and a taxpayer.
“I’m so grateful to be here,” he said. “My dream is to settle in and get work at a job in my skill range. I am a welder and I would like to work in the same industry.”
Staff Photographer Brianna Soukup contributed to this report.
“America is a beautiful country and has a lot to offer the world and the people who come here, and so does Portland,” said Ali, who came to the United States from Ghana more than two decades ago.
Portland’s five mayoral candidates may be more aligned on this issue than any other. They all fundamentally see asylum seekers as an asset to the city, and they all want to see the wait time before they can work made much shorter. They all also feel a little bit helpless.
For years, Portland has welcomed these immigrants, who often undertake dangerous journeys to get here and then go through an arduous, sometimes yearslong process to get visas and work authorization.
. . . .
Zarro said that if it should turn out to be too big a legal risk to offer asylum seekers paid work before they got federal work authorization, he would like to build a more robust job training program so they would be ready to start work in local businesses as soon as their work authorization comes though.
“We have people who are coming here to better their lives and to better their communities. Maine stands to benefit significantly,” he said.
All the candidates also are keenly aware that Portland is in need of more young workers.
“We’re an aging state without enough people to fill the workforce,” Costa said.
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Austin Kocher, Ph.D. Research Assistant Professor TRAC-Syracuse PHOTO: Syracuse U.
Abstract of Austin Kocher, PhD’s article “Welcoming the stranger in Trump’s America: Notes on the everyday processes of constructing and enduring sanctuary:”
Geographers have begun to explore the concept of ‘immigrant welcome’ as a framework for understanding the tension between spontaneous social support for immigrants and refugees and their subsequent restriction and criminalization by states. Overlooked in the emerging discourse on immigrant welcome is the rich literature in feminist geography that views the everyday practices of endurance, care and social reproduction as essential to, but often hidden within, more traditional, political and economic analyses of power. By focusing on the everyday practices of welcome within sanctuary church activism, I argue for more attention to the energy-intense work that is often excluded from official media and academic accounts, yet which is essential to understanding what makes welcome function or fail. I draw upon one in-depth case study of a sanctuary church in Ohio, where a woman has been living for a year and a half in public defiance of her deportation order. In addition to contextualizing this specific case within the broader policy and immigrant rights landscape, I focus on the spatial, material and relational processes that participants implemented to construct a ‘welcoming’ environment as well as observe the ways in which welcome fails to live up to its imagined potential. The case study provides important grounded insights into the material, relational and emotional processes of enduring sanctuary as a form of resistance to the US deportation regime and enduring sanctuary itself as an intensive socio-spatial form of existence.
Read more about each of these inspiring efforts at the respective links above.
Compare what could be if folks put aside hate and worked together to solve human problems with the pathetic, totally selfish, inept, inane, yet existentially dangerous, “Clown Show” 🤡 in the GOP House Conference egged on by their “leader” — congenital liar, bully, insurrectionist buffoon, and criminal defendant Donald Trump.🤮
What’s missing is more dynamic, courageous, truth-based national leadership on immigration and human rights issues from Dems (although, to be fair, the bipartisan Maine delegation — and many Maine Republicans — appear to “get it”)! But, fortunately, that void hasn’t stopped members of the NDPA from “soldiering on” for the commn good and a better America!
A life saved is a life saved! Sometimes, we just have to focus on the daily victories we can achieve!
EOIR HQ, Falls Church, VA (a/k/a “The Tower of Babel”) — EOIR and their DOJ handlers imposed designed-to-fail “dedicated dockets” on the public over the objections of advocates. Now they need the same experts they “blew off” to help them save their “due-process-denying rocket dockets!” By Pieter Bruegel The Elder Public Domain
Contact: Communications and Legislative Affairs Division Phone: 703-305-0289 PAO.EOIR@usdoj.gov
www.justice.gov/eoir @DOJ_EOIR
Oct. 17, 2023
EOIR to Host National Stakeholder Meeting Seeking to Increase
Pro Bono Representation for Immigration Courts with Dedicated Dockets
SUMMARY: The Executive Office for Immigration Review (EOIR) invites immigration law school clinical communities and pro bono organizations to attend a national stakeholder meeting for an open discussion on how to increase pro bono representation in immigration courts with Dedicated Dockets.
At this meeting, EOIR seeks input and recommendations on how the agency can better encourage and facilitate pro bono advocacy, either in person or remotely, at the following immigration courts with established Dedicated Dockets: Boston, Denver, Detroit, El Paso, Los Angeles – N. Los Angeles Street, Miami, New York – Broadway, New York – Varick, Newark, San Diego, San Francisco, and Seattle. See EOIR’s Policy Memorandum 21-23 for more details on this initiative.
EOIR continues to work to increase the representation rate and the number of practitioners available to represent noncitizens in immigration proceedings. Practitioners who volunteer their time to help those unable to afford counsel are a critical part of that effort.
Please join us for a targeted discussion with the goal of strengthening pro bono representation for the Dedicated Dockets.
DATE: TIME: LOCATION:
Oct. 26, 2023
1 p.m. – 2 p.m. Eastern Time
Live via Webex – Meeting Registration
All media inquiries should be directed to pao.eoir@usdoj.gov.
In reality, these ill-conceived and poorly-planned dockets have been “dedicated” to maximizing denials, minimizing due process, impeding effective representation, and developing an unfriendly atmosphere that will discourage asylum seekers from fully exercising their legal rights.
Some DOJ politicos and EOIR bureaucrats must belatedly be worrying about their “legacy,” future employability, or eventually being held accountable for plotting to deny due process to thousands of the most vulnerable humans! As usual, the immigration bureaucracy creates unnecessary problems, then leaves it to the NGO/advocacy community to bail them out!
It’s a deadly, counterproductive, wasteful, frustrating “downward cycle” that needs to stop! Why not “cut out the nonsense” by putting in charge those with the comprehensive knowledge, creative ideas, advanced skills, moral courage, and realistic foresight to solve these problems BEFORE they become self-created “crises?” Those needed leaders and judges are primarily OUTSIDE the USG right now. They need to be brought on board to solve the problems that are demonstrably beyond the ability, will, and skill set of the current immigration bureaucracy at DOJ and DHS!
Only those Immigration Judges granting at or above the (already substantially suppressed) national average should be allowed to hear asylum cases.
Reassign those BIA Appellate Judges who are not recognized asylum experts, and replace them with qualified asylum experts committed to providing and enforcing some positive guidance and best practices for asylum adjudication.
Identify and promptly grant the hundreds of thousands of meritorious asylum cases now moldering in the EOIR backlog (many victims of EOIR’s ADR) so that these refugees can get on with their lives and contribute fully to American society and our economy.
Dems have the power to reform EOIR — a huge “Federal Court system” that they exclusively control! Why are they afraid to use that power “to promote justice and resist evil?”
In the meantime, please take advantage of this chance to “enlighten” EOIR bureaucrats about what it’s really like to attempt to provide pro bono representation on “dedicated dockets” while dealing with their ADR on already-prepared cases that could and should have been granted long ago. Hopefully, some members of the media will also tune in to get a dose of the challenges of trying to fight for justice in America’s worst and least-user-friendly “courts!”
The fact remains that the U.S. government spent a lot of money to build new barriers to keep migrants out and did not get the result it wanted.
. . . .
Trump used a lot of hyperbole to promote his pet project and was prone to describe the barrier as the personification of his presidency. He took a keen interest in its aesthetic appearance and design features, often urging aides to make it look as imposing as possible. He told supporters his wall would be “impenetrable.” He also said Mexico would pay for it (Mexico did not).
U.S. Customs and Border Protection officials didn’t make such claims and weren’t surprised when criminal smuggling organizations in Mexico began sawing through the steel bars — using ordinary power tools — almost immediately.
The border wall has been hacked through thousands of times since then, so often that the government has had to deploy welding crews full-time to shore up the structural integrity of the barrier. Smugglers have figured out a cheaper and even easier way to defeat it, fashioning cheap, disposable ladders out of scrap wood or metal rebar. They send migrants and drug couriers up and over the top, then use ropes to lower them down the other side. Experienced fence-jumpers have developed a technique using the steel bars like fire poles, sliding down onto the U.S. side in seconds.
. . . .
Dozens of migrants have been killed and hospitalized after falling from the structure, often with horrific spinal trauma and broken legs. Immigrant advocates also say the barriers force migrants toward more remote desert areas, contributing to more deaths from heat stroke and exposure. CBP reported 568 migrant deaths along the border during the 2021 fiscal year, the most recent for which data is available — nearly twice the amount of the previous year.
The border wall has a devastating toll on animals too, advocates say. The steel bars have essentially cut in half the habitat of animal species, in some cases cutting off their access to water and grazing areas. Trail cameras set up by researchers have shown pumas, bobcats and other large mammals blocked and searching fruitlessly for some way to get through.
The expensive futility of the wall and border barriers might pale in comparison with the human damage to both migrants and our nation’s soul, according to this interview with border physicians by Melissa Del Bosque in The Border Chronicle:
Melissa Del Bosque Border Reporter PHOTO: Melissadelbosque.com
Dr. Brian Elmore is an emergency-medicine resident physician in El Paso, Texas. He’s also the cofounder of Clínica Hope, a free clinic for migrants in Ciudad Juárez, Mexico, which he runs with the nonprofit Hope Border Institute. Elmore frequently treats patients who have been injured by razor wire or fallen from the border wall that divides El Paso and Ciudad Juárez. He’s coined a term for these injuries: political pathologies. “These are normally healthy people, most of them young, who have been injured because of political decisions made thousands of miles away,” he says. “These are the political repercussions of the border.”
. . . .
That’s interesting that you use this term political pathologies. Is that a term you coined yourself?
It’s what I’ve started calling these injuries that otherwise healthy folks are receiving. These are mostly young people in their 20s, 30s, and sometimes kids, who out of sheer desperation decided to climb the wall or cross the river or desert. Other than for decisions that politicians made thousands of miles away to fortify the border, and make it as dangerous to cross as possible, they wouldn’t have these injuries. It’s really tragic.
. . . .
I’ve treated quite a few border wall falls. I’ve become used to this. But last week, I had a child who came in with multiple lacerations from barbed wire. She came in with her family, and they were all cut up from barbed wire. It’s jarring to see this, especially when it’s a kid, who’s innocent and has no idea what’s going on.
I started talking to the dad, and he told me they were from Venezuela. He said they’d heard a rumor in Ciudad Juárez that officials were letting Venezuelans cross outside of ports of entry. So a huge crowd showed up to present themselves to U.S. border officials [and ask for asylum]. Everyone became frustrated and irritated when they discovered that it wasn’t true.
And this family were pressed up against the barbed wire by the crowd, and they couldn’t go back. The only way for them to move was forward. So they started crawling under the barbed wire. This is the mother, father, the child, who is about 10, and an infant.
So, I’m stitching them up, making small talk because sewing up lacerations takes time and you’re face-to-face, and I’m talking to the dad and he lifts his shirt, and I see that he has a thoracotomy scar. When you perform a thoracotomy, it’s a last-ditch Hail Mary effort to save somebody’s life. The majority die after a thoracotomy. It’s when you crack open a chest because there’s either aortic bleeding or a penetrating injury to the heart. He told me he’d been stabbed and robbed in Caracas. And it was stunning to see his scar and to know that he’d survived. And the thing is, this is the second thoracotomy scar I’ve seen on a Venezuelan patient I’ve treated. This really reinforced for me the constant levels of violence people are facing. I feel like Americans have very little context for what’s going on in that country and how desperate things are there.
. . . .
There’s a very characteristic injury. It’s called a pilon fracture. It’s a lower-extremity kind of ankle fracture, very debilitating. And it’s often associated with a lumbar spinal fracture. Sometimes the bone has broken through the flesh and may require surgery. A lot of times they’ll be fitted with a device that keeps the bone in place while the swelling goes down, so they can get surgery. They’re then discharged to a migrant shelter in town while they wait for surgery.
. . . .
You see on the news, all these headlines, “migration crisis” and “invasion.” And that’s not what people in El Paso are experiencing or how they’re responding to it. They’re responding to the humanitarian crisis with compassion. You see people at shelters volunteering their time, offering to cook, and giving donations. I think the people of El Paso are amazing in the way they’ve responded. As opposed to how the rest of the country is just totally freaking out. I think El Paso is the most inspiring place to be and to practice.
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You can read the full articles (and listen to Nick’s) at the above links.
Just think what could happen if we stopped “doubling down on failure,” eschewed dehumanizing treatment of asylum seekers, and devoted some of the time, money, and effort we spend on dehumanization, militarization, and deterrence to building better systems for fairly and timely screening, identifying, and resettling refugees.
Honorable Mimi Tsankov U.S. Immigration Judge President, National Association of Immigration Judges (“NAIJ”)Hon. Samuel B. Cole Executive Vice President NAIJ PHOTO: NAIJ
Federal immigration judges Mimi Tsankov and Samuel B. Cole to address immigration courts backlog at Headliners Newsmaker, Oct. 18
October 16, 2023, 5:13 pm
WASHINGTON, Oct. 16, 2023 /PRNewswire/ — Judges Mimi Tsankov, a federal immigration judge in New York City, and Samuel B. Cole, a federal immigration judge in Chicago, will speak Wednesday, Oct. 18 at 10 a.m. at a National Press Club Headliners news conference about the pressures of the migrant crisis on the federal immigration court system.
NATIONAL PRESS CLUB LOGO. (PRNewsFoto/NATIONAL PRESS CLUB) (PRNewsfoto/National Press Club) (PRNewsfoto/National Press Club)
An unprecedented surge in migration has created a backlog of 2.6 million cases in the nation’s immigration courts resulting in long waits for hearings. Among other topics, the judges will address the recent assignment of judges to areas along the border. They will provide an update on the judges’ union efforts to restore rights lost during the previous administration.
Federal immigration judges are generally barred from speaking out on issues that affect their courts. Tsankov and Cole will speak in their capacity as president and executive vice president of the National Association of Immigration Judges (NAIJ), an affiliate of the International Federation of Professional and Technical Engineers (IFPTE).
The National Press Club is located on the 13th Floor of the National Press Building at 529 14th St., NW, Washington, D.C.
PRESS CONTACT: Cecily Scott Martin for the National Press Club; cscottmartin@press.org; (202) 662-7525
Yet, the mainstream media, Democrats, Civil Rights organizations, and commentators often pay scant attention to the outrageous dehumanizing chaos in our Immigration Courts. One contributing factor is that the DOJ has “muzzled” Immigration Judges from speaking out publicly about what’s happening in their courts, a questionable 1st Amendment suppression that a Federal District Judge recently “shrugged off.” See, e.g., https://knightcolumbia.org/cases/naij-v-neal.
This is a rare opportunity for the public to get insights on this critically important yet “below the radar screen court system” from two sitting judges. They apparently have “sidestepped” the DOJ’s censorship by appearing “solely in their capacity as officers of the National Association of Immigration Judges (“NAIJ”).” (Full disclosure: I am a retired NAIJ member.)
The NAIJ strives to provide professional training, encouragement of best practices, more independence, better working conditions, and more cooperation with parties appearing before the Immigration Courts. These positive efforts, among the few happening at EOIR, earned the NAIJ a “decertification” of their status as a union representing Immigration Judges during the Trump Administration.
Ironically, although the Biden Administration touts itself as the most “union-friendly Administration in history,” three years in, the NAIJ has yet to regain full recognition as a union.
“Pie in the sky?” Hardly! Undoubtedly, these measures could be carried out far less expensively than further, ultimately fruitless, border militarization and enhanced cruelty being pushed by the GOP and some Dems. And, they would be more effective in bringing “law and order” to the border and our overall legal system.
Fanned by alarmist narratives being spread by folks like Adams and Hochul (no, Governor, 8 billion people aren’t going to descend on your state — in fact, the U.S. has a “refugee/1,000 population ratio” far below that of many smaller, much poorer countries), and the mainstream media’s insatiable need for a “trumped-up invasion narrative” to create headlines and sound bites, I suspect that the Administration and Dem politicos might be prepared to “throw asylum seekers under the bus” to reach an agreement with the GOP to keep the Government open. After all, asylum seekers don’t vote, and their advocates have historically been good “team players” who go to bat for the Dem Party despite having their contributions, energy, and ideas consistently undervalued, even dissed, once elections are over.
Don’t do it Dems!Giving in to the righty nativists will NOT solve anything, nor will abandoning values help you in the next election! Indeed, the Administration could set more “world records” for exclusions, deportations, denials, imprisonments, wall-building, enforcement hiring, “rocket dockets,” and the GOP would still spout the same “open borders” myth, and the media would give it equal, or greater, time. They largely ignore HRF and other experts who actually understand the border, migration, and have practical, humane, if less inflammatory or drastic, solutions to offer.
The mainstream media seems to have endless time for folks like Trump, Gaetz, Jordan, Haley, Ramaswamy, etc., who have little to contribute to solving pressing national problems. Why aren’t they talking to the folks who understand migration, asylum seekers, the border, and the legal framework? Why aren’t they “headlining” and publicizing reasonable, humane, values-based solutions rather than promoting narratives of doom, hopelessness, and expensive, often illegal, cruelty as the only “solutions?” There actually have been some bipartisan proposals for addressing the border while respecting and even enhancing the rights of asylum seekers. See, e.g.,https://immigrationcourtside.com/2023/02/14/🇺🇸courtside-politics-rep-hillary-scholten-d-mi-is-part-of-a-bipartisan-group-of-new-house-members-reaching-across-the-aisle-in-an-attempt-to-govern-for-the-public-good/. But, you sure wouldn’t know it from listening to the so-called “mainstreamers!”
Here’s another fascinating thing. Humane, sensible, legally compliant, cost effective solutions to migration issues proposed by experts, many of whom are immersed in the reality on a daily basis, are often dismissed, if even mentioned, as “impractical,” “unrealistic,” “idealistic,” “costly.” On the other hand, when politicos, think tankers, reporters, commenters, profiteers, many largely removed from the human trauma of the border situation, present costly, proven to fail, draconian, often illegal measures directed against asylum seekers, the same prejorative, dismissive terms are seldom used.
Indeed, the worse, crueler, and more hare-brained a scheme is, the more likely it is to be mischaracterized as a “realistic response” to a hyped-up emergency! Somehow, wanton cruelty and end-running legal obligations are packaged as a “practical necessities,” while creative ideas on how to solve problems and make the current laws work are summarily brushed aside, often without meaningful analysis and discussion.
When Joe Biden took office in 2021, he had promised not to build “one more foot” of border wall. This promise seems to have been put to rest last week with the waiving of 26 laws that protect land and people to build a wall through Starr County, Texas, along the Rio Grande. Reactions ranged from disappointment to feelings of betrayal, especially among people who had opposed Trump’s border wall obsession. But in reality, the Biden administration has been quietly constructing and maintaining the border wall system since he took office.
In other words, it is time to set aside tired partisan narratives. Whether it is the Trump regime’s racist overtures to pump up a “big, beautiful border wall” or the Democrats’ calls for a humane yet orderly border, the result has been the same: rising border budgets year after year, increasing fortification, more physical and virtual walls, and more detention centers and deportations. The CBP and ICE budgets in 2023 have yet again eclipsed the highest previous amount, and they now include a record number of contracts to private industry (more on that below).
The border can’t be reduced to just partisan politics. This is not to say that partisan politics don’t matter, and certainly disinformation about the border is real. But the border also supersedes these narratives. It is a machine that is beholden to no political party, a point that becomes more important as we head into an election year.
If the border is a machine, then we have to look under its hood, inspect its motor, and understand how it functions. First, in the parlance of Customs and Border Protection, it is not a border wall but a border wall system. The system’s components include the physical barrier, but this is but one “layer” (the term that Border Patrol uses in its strategic plan). The system also includes surveillance technology—both on and away from the border—and armed agents from the U.S. Border Patrol, CBP’s Office of Field Operations, Immigration and Customs Enforcement, and local police (state, county, city, and tribal) that work with (and receive financing for their border enforcement duties from) DHS. In the border wall system, technology does not offer a “humane” alternative to the physical wall; it works in tandem with it. Thus, the so-called smart wall.
Before we get to the smart wall, let’s contemplate a few things about the physical wall—since it has been such a source of ire and adulation. The one burning question I have is why, if the Democrats were dead set against the wall during Trump’s administration, didn’t they order it removed when they took over in 2021? I’m talking about the wall that Trump built during his tenure, not the 650 miles or so that was constructed under the 2006 Secure Fence Act, which Biden himself voted for when he was a senator. Taking down Trump’s wall construction, however, was never mentioned and didn’t seem within the realm of the possible. In the end, even though Biden ordered a “pause” on wall construction when he took office, CBP announced in September 2022 that it would fill in the “gaps.” In other words, the Biden administration was not going to tear down the Trump wall; in the weirdest and quietest way, it was going to finish it.
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Read the complete article at the link. Years of failed “deterrence” produce higher budgets and demands for more and more costly “deterrence gimmicks” — from both sides of the aisle. No wonder it’s profitable! No accountability! Each inevitable failure is treated as a justification for even more of what doesn’t work. Each increase in deportations and draconian denial of human rights is met with disingenuous claims of “open borders.” Interesting “business model!”
Beth Barkley thought she was attending a ceremony for International Day of the Girl on Wednesday. The high school English teacher stood in the library at Cardozo Education Campus as the city’s mayor explained the importance of attaining “educational equity across genders.”
But, in a ceremony focused mostly on her, Barkley learned that she had been named D.C’s 2024 Teacher of the Year.
“This year we have a teacher of the year who serves as a role model not only for her students, but for other teachers across the District,” said D.C. Mayor Muriel E. Bowser (D). “She has gone above and beyond her normal teaching duties to uplift student voices and inspire her students.”
Each year, educators across the city vie for the top honor, which comes with a $7,500 check and the chance to compete for National Teacher of the Year in a contest run by the Council of Chief State School Officers. Barkley, who teaches English and other classes to students who are new to the United States, was met with applause and sparkling pompoms wielded by students.
“This is a huge honor,” she said to the room of teachers, staff members and several of her students. “I have students that are changemakers. My students are leaders. … This is really for and because of them.”
For six years, I have represented adults, children and families who have fled persecution in their home countries and sought protection in the United States. My clients have traveled thousands of miles from countries including Nicaragua, Venezuela, Cameroon, Togo, Haiti, El Salvador, Honduras and Guatemala, arriving at the U.S.-Mexico border to seek asylum. They leave their homes, communities and culture because the pain and risks of fleeing pale in comparison to the dangers they will face if they stay.
I have seen the difference between the outcomes for clients who have meaningful access to legal counsel and due process, who are able to safely settle into a community as they pursue their cases, and people who are deprived of these basic human rights. But over the past several months there has been an onslaught of Biden administration policies designed with one goal: to rapidly deport people. These programs block people from a fair asylum process, and I am deeply concerned that thousands of individuals fleeing persecution will never be able to tell their stories and have a chance at safety in our country.
For the clients I have helped win asylum, the key to my representation was consistent and thorough communication. Through multiple sessions, we built a rapport, I provided them with information about their legal rights and the immigration system and they provided me with the details of their lives. These details formed the basis of their legal claims, which I assisted them in presenting to the immigration judge. The judge decided whether they could stay in the United States based on an individualized determination of their future risk of harm if deported.
When one of my clients and her six-year-old daughter completed their two-month journey from El Salvador to Texas, Customs and Border Protection detained them for three days and then released them with notice of their obligation to appear in immigration court. They made their way to the Midwest, where they sought legal representation.
At the National Immigrant Justice Center, my colleagues and I worked with the mother over several months to document her experiences of being raped, impregnated, beaten and locked up at home by her older relative. Finally safe in the United States, she started therapy and began working at a restaurant to support herself and her daughter. At her final immigration court hearing, she bravely testified about her traumatic past, and the immigration judge granted both mother and daughter asylum.
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Read the rest of Stephanie’s article at the link.
On the basis of reports like this, there is reason to believe that not only should many more of the individuals allowed to enter the U.S. be granted asylum under a properly functioning system, but that many of those barred, rejected, and deported are erroneously being returned to life-threatening situations.
This, of course, directly contradicts the restrictionist myths peddled by most GOP politicos and even some Dems. It also contradicts the fear-mongering and scare tactics employed by the right-wing media that has unfortunately spilled over into the so-called “mainstream media.”
The real “border crisis/tragedy” is the lack of a legitimate, well-functioning, fair, efficient system to carry out our legal obligations to asylum seekers under both domestic and international laws. Calls for more “deterrents, cruelty, walls, harsh imprisonment, lawless deportations, and truncations of already-routinely-violated rights” are not going to solve the real problems! Indeed, they are likely to make things even worse!
Proud to be a member of this great group fighting for due process. Also grateful for all the great lawyers and firms who have provided pro bono drafting assistance to “give us a voice that needs to be heard!”
In Immigration Court, the number one “internal” problem has probably been aimless docket reshuffling, where cases are repeatedly re-arranged depending on the priorities of different administrations. Other problems include inefficient Master Calendar Hearings and pre-trial conferences, insufficient guidance from the Board of Immigration Appeals, which leads to inconsistent decision-making, and not enough staff members to support the Immigration Judges. In addition, there is a shortage of DHS attorneys (the prosecutors), and those attorneys have insufficient power (or willingness) to resolve cases or narrow contested issues prior to the final hearing.
What does all this mean for asylum seekers? In court, cases are still being heard, though I expect that delays will increase and more cases will be rescheduled. We can also expect that more non-priority cases (i.e., people who do not have criminal or security issues) will be dismissed based on prosecutorial discretion. At the Asylum Office, nothing seems to be moving. You can try to expedite your case and if that fails, file a writ of mandamus to force the agency to adjudicate your application. Otherwise, I would not expect any progress any time soon.
Finally, we might as well end on a positive note. Having recognized that most asylum applicants will be stuck waiting for years and years, the government has recently increased the validity period of asylum-pending work permits from two years to five years. For asylum applicants, this change will save money and reduce stress, and for USCIS, it will reduce their workload and allow them to focus on other applications. I guess the lesson here is that every cloud has a silver lining–even a mushroom cloud.
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Read Jason’s full analysis at the link.
As Jason acknowledges, some of the drivers are “world events” over which — contrary to GOP and other nativist blather, often fanned by the so-called “mainstream media” — receiving countries like the U.S. have relatively little effective control. This is particularly true in the short run.
We’ve notoriously tried “taking over” countries in conflict. It never works! Moreover, it can eventually create additional refugee situations rather than resolving them. See, e.g., Afghanistan.
Nor are border barriers, razor wire, dungeons, arbitrary deportations, stripping asylum rights, xenophobic rhetoric, criminal prosecutions, killing some migrants by forcing ever more dangerous crossings, and a host of other unilateral measures pushed primarily by the GOP (but also by some Dems) going to change the actions of Maduro, Ortega, Putin, Diaz-Canel or any of the other authoritarian autocrats whose policies drive folks to flee their native lands and seek refuge abroad.
So, rather than wringing hands about what we can’t change, why not change that which is under our control? Long overdue, common-sense reforms and improvements in asylum adjudication, reception, and resettlement, some mentioned by Jason, could be achieved.
They won’t necessarily halt the flow of refugees, nor are they guaranteed to eliminate backlogs, particularly in the short run. But, they will reduce the backlogs, contribute mightily to a better U.S. legal system, and comply with our international and domestic legal obligations. That, in and of itself, appears to be a worthy and achievable goal. But, nobody in charge seems to be interested in anything but “quick fixes” — which aren’t really “fixes” at all, since they have all been tried and failed.
Immigrant Defenders help humanity at the border, treating fellow humans with dignity, respect, kindness. PHOTO: Linkedin
Immigrant Defenders posted this on LinkedIn:
Customs and Border Protection (CBP) continues to inhumanely release asylum seekers onto San Diego streets, often with little more than the clothes on their backs. #TeamImmDef, Lindsay Toczylowski, Margaret Cargioli, Melissa Shepard and Jesús Contreras Barajas, continues to join various non-profit organizations, grassroots groups and community members to receive asylum seekers with respect and help them reach their friends and family members all over the United States. Our dedicated team, in collaboration with our remarkable San Diego-based partners, is tirelessly working to continue to welcome migrants with dignity. We have welcomed more than 8500 asylum seekers in 13 days.
We need all levels of government, local and federal, to provide infrastructure and financial resources to help NGOs welcome with dignity.
If you want to help, please consider donating airline miles to Miles4Migrants. Please see the link in our bio to donate. Or donate directly to ImmDef at Immdef.org/donate.
Scandalously, rather than looking to solve this humanitarian crisis, the GOP seeks to punish victims of Government dereliction of duty and their humanitarian responders for asserting well-established legal rights! Talk about a party of lawlessness! Sadly, it’s no surprise since they owe homage to an insurrectionist “leader” who is a notorious fraudster, con man, and criminal defendant in multiple cases!
While resisting the GOP’s worst racist/nativist nonsense, the Dems’ approach has been largely to avoid talking about immigration and human rights, apparently believing that pretending like they don’t exist will make them go away. But, migration isn’t going away!
While we can to some extent control, channel, and optimize migration, irresponsible “zero tolerance/uber deterrence” policies will do little to stop reality in the long run. It will, however, eventually force more migration underground and cede policy control to smugglers, cartels, and other criminals.
At the same time, obsessing over deterring and deporting those who merely seek refuge and a chance to contribute to America will actually diminish the harder work of focusing on criminals out to turn border disorder and misplaced priorities to their advantage.
Neither party appears to have a realistic plan for the border, and the GOP actively seeks to make things worse!Meanwhile, not for the first time, NGOs, local communities, and compassionate individuals are left to pick up the slack!
Recently, the San Diego County Board showed the potential for bipartisan cooperation on the border.
But, without a more realistic approach from the Feds — currently blocked by the GOP — local efforts are unlikely to succeed. And, that’s an avoidable humanitarian tragedy!
