"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.
Liz Mineo, Staff Writer, interviews Professor Neuman in The Harvard Gazette:
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What should be done about border security, enforcement, and the immigration court backlog?
In terms of enforcement, there is no easy solution. A border fence is merely a symbol and no solution. Clearly, the adjudication system needs more resources, and adjustments to improve both efficiency and fairness. For both sides, justice delayed is justice denied, and that should be an important part of the focus.
Another priority, contrary to some claims, is to reduce reliance on detention. The U.S. is engaged in arbitrary detention of migrants who really don’t need to be detained; they could be subject to surveillance.
The country should also respect its international obligations not to send people back to countries where they will be persecuted, tortured, or killed. It cannot suspend its international obligations on that front, and it should not openly violate them, as it did under COVID.
What measures should be taken to reduce the flow of migrants into the U.S?
In terms of enforcement, the important point to stress is that this is not an issue that the U.S. can solve unilaterally. There must be a regional solution. It’s obvious to anyone who looks at the logistics of the problem that the solutions depend on cooperation with Mexico. Congress can’t just impose a solution and assume that Mexico will go along with it. More broadly, there are other countries that need to be involved in protecting refugees and in solving some of the problems that lead to migration.
Some experts say the asylum system is a parallel immigration system and that it should be revamped. What’s your take on this?
I’d like to use the term asylum broadly, not legalistically, to cover forms of protection from persecution, killing, and torture. The U.S. asylum system is too opaque and too inconsistent: Valid claims may be rejected, and claims that are made in perfectly good faith may turn out to be invalid.
On the other hand, some people seek desperately to come to the U.S. for reasons that are not covered by asylum, such as poverty, loss of livelihood, or to join family members. The system needs to winnow those claims out while remaining open to valid claims for protection. It would also benefit from greater clarity on which claims are valid, and from more consistent adjudication, but now, the system is not meeting its obligations to persecuted people.
Finally, what are your realistic hopes for changes in immigration policies?
For now, my hopes would be that any new legislation would increase funding and would help give the public the sense that the border situation is being addressed.
And meanwhile that the executive would use the authority that it already has to manage the situation better, including by negotiating with other countries. The executive should resist efforts that obstruct its compliance with its obligations.
There is danger that any new legislation would decrease protection, which would mean that we would be taking no steps forward, and several steps backward, and that nonetheless, issues about migration would remain just as divisive as they are now.
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Read the full (edited) interview at the link.
“Decrease protection” seems to be a toxic bipartisan goal of Congress and the Administration. What’s preventing it? They can’t agree on the amount of cruelty, suffering, and dehumanization to inflict on vulnerable forced migrants who overwhelmingly seek only to have the USG process their legal claims for protection in a fair and timely manner! That reality has clearly been lost in the rancid, one-sided, often secret “negotiations” in Congress; the insipid statements of the Biden Administration promising more border closures, cruel, inhuman, degrading, expensive, and wasteful detention; and treacherous “bipartisan” abrogation of well-established “life or death” legal rights to fair consideration of claims!
Professor Neuman says “this is not an issue that the U.S. can solve unilaterally.” There is general consensus among migration experts on this fundamental truth! Yet, Congress and the Administration keep pretending otherwise, with little critical, informed “pushback” from the media.
Why isn’t Kristen Welker interviewing Professor Neuman and other migration experts, rather than making “Meet the Press” a “Foxlike Forum” for those promoting White Nationalist lies about the border and national security? Welker hasn’t bothered to inform herself about the human lives and human rights involved with forced migration at the border. Therefore, her feeble attempts to stop GOP nativist politicos from rambling on with their border myths are somewhere between ineffective to pathetic, but certainly must be maddening to anyone involved with assisting the actual humans seeking protection under our dysfunctional legal system!
Garland’s inexcusable failure to fix EOIR and get it working fairly, professionally, expertly, and in real time is a drag on the Biden Administration immigration policies and an existential threat to our democracy!
States can’t use the federal courts to try to force the federal government to arrest and deport more people who are in the country illegally, the Supreme Court ruled Friday.
The 8-1 decision could cut down on a flood of lawsuits recent administrations have faced from state attorneys general and governors who disagree with Washington on immigration and crime policy.
The high court’s ruling found that Texas and Louisiana lacked standing to pursue litigation challenging immigration enforcement priorities established by President Joe Biden’s administration soon after he took office.
It’s the second decision in eight days in which the Supreme Court has rejected lawsuits from Texas on standing grounds. Last week, the court ruled that the state did not have standing to challenge a federal law that gives preferences to Native American families in the adoptions of Native children.
Six states are challenging the debt-relief plan, but it’s not clear if the states have suffered the sort of concrete harm that is typically necessary to challenge a policy in court. (In a separate case, two student-loan borrowers who oppose the plan are also suing. Their legal standing is also contested.)
In the immigration case, critics of the states’ approach said their claim of likely financial injury from unwarranted release of undocumented migrants was murky. But the court’s majority opinion written, by Justice Brett Kavanaugh, took a different tack and said the case was flawed because of a general principle against suits trying to force the executive branch to enforce the law against someone else.
“This Court has consistently recognized that federal courts are generally not the proper forum for resolving claims that the Executive Branch should make more arrests or bring more prosecutions,” Kavanaugh wrote, in an opinion joined by Chief Justice John Roberts and the court’s three liberals. “If the Court green-lighted this suit, we could anticipate complaints in future years about alleged Executive Branch under-enforcement of any similarly worded laws — whether they be drug laws, gun laws, obstruction of justice laws, or the like. We decline to start the Federal Judiciary down that uncharted path.”
I suppose whether you “like” or “hate” this decision depends on who is in power and what you think about them. As my friend and immigration commentator Nolan Rappaport told me, immigrants’ rights advocates might cheer this decision today, but will not be happy if Trump is elected and they can no longer team up with Democrat State AGs to challenge alleged abuses of prosecutorial authority by Trump’s Administration.
Recognizing Nolan’s point that the “sword cuts both ways,” I think this is the correct result. Perhaps, that’s because it’s a derivation of a long line of cases on prosecutorial discretion that we often successfully invoked during my time in the “Legacy INS” OGC. Also, it seems correct from a “separation of powers” standpoint.
One of the cases that the Court relied upon is Linda R. S. v. Richard D., 410 U. S. 614 (1973). Interestingly, that case, then relatively recently decided, was one of the many I cited in the July 15, 1976 opinion that I drafted for then General Counsel Sam Bernsen approving the INS’s use of prosecutorial discretion.See https://immigrationcourtside.com/wp-content/uploads/2018/02/Bernsen-Memo-service-exercise-pd.pdf.
The “Bernsen opinion” (FN 8) cited the various Lennon cases and made reference to Leon’s article in Interpreter Releases (1976) on the topic.
After five decades of working in the immigration field in different positions and different levels, I think it’s always interesting how things from my “early career” still have relevance today!
Indeed, although you wouldn’t know it from the mainstream media and the “alternate universe debate” now going on in Congress, the GOP claims of “open borders” and lack of immigration enforcement are total BS. In fact, the Biden Administration has far “out-deported” and “out-enforced” the Trump Administration. See, e.g., https://amsterdamnews.com/news/2024/01/03/deportation-numbers-under-biden-surpass-trumps-record/.
As experts and those who actually work with migrants at the border know, “enforcement only” doesn’t work at the border or anywhere else, although it does fuel political movements and powerful corporate interests. See, e.g., .https://open.substack.com/pub/theborderchronicle/p/prepare-yourselves-for-the-2024-border?r=1se78m&utm_medium=ios&utm_campaign=post. But, truth, rationality, humanity, expertise, and the rule of law are largely absent from today’s one-sided immigration discussions. That doesn’t bode well for the future of our nation or the world.
Paul, the holiday season is a time filled with joy, festivities, and yes, perhaps even a few challenging political discussions at the dinner table.
Most of us can relate to that moment when someone decides to bring up a political topic just as the turkey is being carved, or right before dessert. Our country is undeniably divided, and sometimes these divisive conversations can even make their way into our family gatherings.
The NILC-IJF team is committed to equipping you with the tools and information you may need to navigate tough conversations on immigration this holiday season.
Here are a few quick facts to keep in your back pocket:
When someone mentions the so-called “border crisis”…
There is not a “border crisis,” but rather a humanitarian crisis at our border.
This humanitarian crisis has worsened over the years because of an overwhelming backlog of cases, resources not being funneled to lawful and humane processing, and harmful policy choices, such as the implementation of the Title 42 expulsion order. These choices have decimated our asylum system, making it almost impossible for people fleeing violence and seeking safety to access their legal right to seek asylum.
When someone starts talking about DACA…
DACA recipients contribute so much to our communities — they are students, teachers, nurses, doctors, and loved ones who have lived in the U.S. for most of their lives.
Year after year, in poll after poll, a majority of Americans across party lines support Congress passing a pathway to citizenship for immigrant youth.
In fact, a survey from Pew Research Center found that 74% of Americans support a law that would provide permanent legal status for immigrant youth.
When someone mentions taxes or the economy…
Undocumented immigrants pay billions of dollars in federal, state, and local taxes nationwide (Source: Internal Revenue Service).
Immigrants play a crucial role in contributing to the U.S. economy, starting businesses, creating jobs, and driving innovation.
According to the National Bureau of Economic Research, immigrants were responsible for over half of the U.S. startup companies valued at $1 billion or more in 2020.
Engaging in difficult political conversations with family and friends is a crucial step in advocating for immigrants’ rights. Sometimes, it only takes one conversation to make a difference, while other times, it may take many more. But each conversation contributes to building a more informed and compassionate society.
Thank you for taking the time to read through the quick facts we shared above, and we hope they are helpful if someone brings up immigration this holiday season.
Paid for by NILC Immigrant Justice Fund, immigrantjusticefund.org, not authorized by any candidate or candidate’s committee.
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Yes, I know that the “rule of thumb” is to avoid politics, religion, and other potentially divisive topics at the Thanksgiving table. But, not everybody follows the rules. So, it’s always prudent to be prepared.
We can’t give up on advancing and advocating for truth, hope, and humanity over myths, fear, loathing, and misunderstanding! In that respect, this more hopeful article by local columnist Courtland Milloy in today’s WashPost illustrates how a diverse group of his “Gen Z” students are embracing rational dialogue and problem solving to build a better future! https://www.washingtonpost.com/dc-md-va/2023/11/21/courtland-milloy-northern-virginia-community-college/. Courtland observes:
Having access to a supportive community college such as NOVA, where an international student body tends to coalesce around a common struggle to make it against the odds, added to the students’ sense of optimism about their future.
Immigration, of all types, can and should be a source of optimism and dynamism for the future! But, it won’t happen unless we are willing to take on the myths and naysayers head-on with truth and reality!
This article is a collaboration between The Border Chronicle and TomDispatch, a great outlet which has been looking at U.S. foreign policy, the military industrial complex, the “forever wars,” climate change, and many other topics since 2001.
On September 23rd, at about 2:30 a.m., a Border Patrol surveillance camera captured two people crossing the international boundary between Mexico and the United States on the outskirts of Nogales, Arizona. A Border Patrol vehicle arrived quickly, but not before one of them had fled back into Mexico. When an armed agent stepped out, dressed in a forest-green uniform, he found a 16-year-old girl from Mexico softly crying, while holding her month-old baby swaddled in a blanket.
The agent commanded her to get in the vehicle. As they then drove to the Nogales Border Patrol station, the girl, he later reported, tried to speak to him in Spanish through the security partition that separated them. Her tiny daughter, she was telling him, was in distress. Cameras showed that the vehicle stopped for all of 10 seconds before continuing. The agent later claimed he couldn’t understand what she was saying and that he wanted to find a fluent Spanish speaker at the station. He didn’t realize, he insisted, that the infant was struggling to breathe, though the child soon died.
This hellish story of suffering at our border is but one of hundreds of similar tales of horror from 2023. They illustrate a fundamental truth about that border: it neither is, nor ever was, an “open” one in the Biden years, nor does the president faintly have an open-border policy, though prepare yourself to hear otherwise — over and over again — in Trumpublican campaign ads next year. They’ll repeat what party officials are already saying all too repetitively: that “President Biden’s radical open borders policies” have created “the worst border crisis in American history.” (While those are the exact words of House Oversight Committee chair James Comer, similar sentiments are already being offered by countless members of the GOP.)
Comer’s claim is, of course, no less predictable than the hardships migrants like that girl are suffering as they try to reach this country. While such border narratives traffic in the unreal, what is real either isn’t effectively reported or gets lost amid all the politically motivated noise. Loud fantasies are expansively covered, while life-and-death stories, like those of that infant and her mother, are seldom reported and, if they are, quickly disappear.
Barely a week before that 16 year old was desperately trying to communicate to the agent in Spanish, the United Nations International Organization for Migration (IOM) labeled the U.S.-Mexico border the world’s “deadliest migration land route.” In 2022, a record 853 remains of dead border crossers were recovered (and this is the U.S. Border Patrol’s figure, which is even higher than the IOM’s), dwarfing the record of 568 set the previous year. Such numbers, the IOM stresses, are known to be distinct undercounts, leaving all too many families pining for lost loved ones.
But those border fatalities weren’t the only record breaker. Another was confirmed just a week after medical personnel at the Nogales station rushed to treat that girl’s baby. The number of border contracts issued to private industry also set a new record. Like those deaths, such contracts soared in fiscal year 2023 to $9.96 billion, instantly stripping the previous high, also set last year, of $7.5 billion.
And mind you, those gifts to industry were made from the highest budget ever (including in the Trump years) for border and immigration enforcement: $29.8 billion. So, don’t for a second think that the U.S. has an “open” border. In fact, it’s never been more fortified or — something few even bother to mention — more profitable, if you happen to be part of the border-industrial complex.
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Read the full article at the link.
Maybe it’s because the victims are “only migrants, mostly people of color” and therefore not considered to be “real human beings” by some in the media; maybe it’s because getting the real story about the border requires intensive digging, intellectual expertise, and perhaps some danger; maybe it’s because editors are in search of alarmist “sky is falling” myths about the “border apocalypse” to attract readers, viewers, and “online hits;” maybe it’s because of a false belief that truth is “boring” and “doesn’t sell!”
For whatever reason, the non-Fox networks (Fox is a primary purveyor of the “Big Lie” and the “Open Borders Fantasy”) and “mainstream media” do a really poor job on border reporting.
Those with even a passing familiarity with “talking heads” are no-doubt familiar with claims from nativist GOP politicos, righty reporters, and even some Dems about the mythical a “open borders!” None of these folks have recent experience helping asylum seekers trying to exercise their legal rights under domestic laws, international treaties, and ourConstitution in a border system specifically designed to “discourage and deter” them, rather than identify and promptly grant the many legally sufficient claims for protection.
By contrast, when is the last time you saw real experts — folks like Clinical Professor Steve Yale-Loehr, former Deputy UNHCR and Georgetown Law Dean Alex Aleinikoff, CGRS Director Karen Musalo, HRF Refugee Programs Director Eleanor Acer, UC Davis Law Dean Kevin Johnson, NIJC Executive Director Mary Meg McCarthy, Immigrant Defenders Executive Director Lindsay Toczylowski, Rep. Hillary Scholten (D-MI) or any of the other huge numbers of highly articulate, well-recognized, “hands on practical experts” on human rights and asylum appear on the “talking heads” to throw some truth and real light on this important, nearly totally misunderstood and intentionally misconstrued, issue that GOP nativists have thrust to the forefront of the 2024 campaign?
Meanwhile, Dems should NOT be “running away” from the realities and essential benefits provided by robust immigration and the cruel wastefulness and immorality of Trumps’s proposed neo-Nazi “crackdown” on all forms of migration (although, disgracefully, some Dems are doing exactly that, thus playing into the hands of GOP nativists for absolutely NO return).
Simon Rosenberg Veteran U.S. Political Analyst Hopium PHOTO: Substack
Here are some ideas from Simon Rosenberg at Hopium on Substack on how Dems can make immigration a centerpiece for success in 2024:
Former President Donald J. Trump is planning an extreme expansion of his first-term crackdown on immigration if he returns to power in 2025 — including preparing to round up undocumented people already in the United States on a vast scale and detain them in sprawling camps while they wait to be expelled.
The plans would sharply restrict both legal and illegal immigration in a multitude of ways.
Mr. Trump wants to revive his first-term border policies, including banning entry by people from certain Muslim-majority nations and reimposing a Covid 19-era policy of refusing asylum claims — though this time he would base that refusal on assertions that migrants carry other infectious diseases like tuberculosis.
He plans to scour the country for unauthorized immigrants and deport people by the millions per year.
To help speed mass deportations, Mr. Trump is preparing an enormous expansion of a form of removal that does not require due process hearings. To help Immigration and Customs Enforcement carry out sweeping raids, he plans to reassign other federal agents and deputize local police officers and National Guard soldiers voluntarily contributed by Republican-run states.
To ease the strain on ICE detention facilities, Mr. Trump wants to build huge camps to detain people while their cases are processed and they await deportation flights. And to get around any refusal by Congress to appropriate the necessary funds, Mr. Trump would redirect money in the military budget, as he did in his first term to spend more on a border wall than Congress had authorized.
In a public reference to his plans, Mr. Trump told a crowd in Iowa in September: “Following the Eisenhower model, we will carry out the largest domestic deportation operation in American history.” The reference was to a 1954 campaign to round up and expel Mexican immigrants that was named for an ethnic slur — “Operation Wetback.”
The constellation of Mr. Trump’s 2025 plans amounts to an assault on immigration on a scale unseen in modern American history. Millions of undocumented immigrants would be barred from the country or uprooted from it years or even decades after settling here.
Such a scale of planned removals would raise logistical, financial and diplomatic challenges and would be vigorously challenged in court. But there is no mistaking the breadth and ambition of the shift Mr. Trump is eyeing.
Despite being inhumane and jawdroppingly cruel, this plan is now a major political problem for an already struggling Republican Party for at least three main reasons:
Raids and Mass Deportations Are Deeply Unpopular – We have decades of polling on the forced removal of the 10m+ undocumented immigrants (almost all of whom are employed and pay taxes) in the US, and it is wildly unpopular, perhaps even more so than “abortion bans.” One example – in the 2016 exit polls, in the election that gave Trump the Presidency, the American people choose “offer legal status” to “deported to home country” 70%-25%. Republicans may have a slight advantage on immigration issue right now, but mass deportation is seen as an extreme position by the American people (rightly so). It was so unpopular that the anti-immigration movement dropped mass deportation as a goal, moving to the softer “attrition through enforcement,” or “self-deportation,” political strategy more than a decade ago.
Trump’s plan is another sign of how extremism and extremists have overtaken the party of Lincoln and Reagan.
As I document here, since 2005, when the national Republican Party began adopting a far harder line on immigration (Reagan, W. Bush and McCain were all immigration reformers), the 4 battleground states of the Southwest, AZ/CO/NM/NV, have drifted away from the Republican Party, becoming far bluer. In the last 2 elections we’ve seen the best Democratic performance in that region since the 1940s and 1950s, and a reminder that Biden got within 5 points of Trump in Texas in 2020. In the heavily Mexican-American parts of the country in particular raids and mass deportations are wildly unpopular.
It Was A Plan Like This That Caused The Big Hispanic Protests Across the US in 2006 – In 2005 the Republican House of Representatives bucked their President, George W. Bush, and passed a bill that called for the rounding up and mass deportation of the 11m undocumented immigrants in the country. It was the moment when the party of the Sun Belt and the West went from pro-immigration to deeply restrictionist. Over the next year huge protests against this bill and mass deportation erupted across the US, and Republicans became so spooked that we were able to pass a “comprehensive immigration reform” bill through a Republican Senate in 2006. That bill, like the 2013 immigration reform bill we passed through the Senate, was never taken up by the Republican House and it died.
But those protests did something important politically – after years of Republican gains with Hispanics under W. Bush, Hispanics ran back into the arms of Democrats in 2006 and they have essentially stayed there ever since. In the 2006 midterms Democrats won 69% of the Hispanic vote, among our best performances in recent decades.
In the four Presidential elections leading up to 2006 Democrats averaged 47% of the vote, and in 2004 we lost AZ/CO/NM/NV. In the four Presidential elections since 2006 Democrats have averaged 51% and in 2020 we won AZ/CO/NM/NV at the Presidential level for the first time since 1940. As the Hispanic population has grown across the US and in these states, our net vote margin with Hispanic voters keeps increasing, even if we lose a few points in vote share. As I show here, in 2004 the net Hispanic vote margin for Democrats was about 700,000 votes nationally, meaning we won 700,000 more Hispanic votes nationally than Republicans. In 2020 that number was at least 4.5m net votes across the US, with this same dynamic playing out in each state with large Hispanic populations (except Florida of course).
My instinct is that whatever advantage Republicans had on immigration, and whatever small gains they had made with Hispanic voters in recent years, is now gone.
This Plan Will Wreck The American Economy – In a time of existing wide scale worker shortages, removing 10-15m workers from the American economy in a short period of time would be national economic suicide, and will be seen that way by the business community in DC and in the battleground states. It’s just totally insane and extremist policy no matter how you look at it, and I think it could become as much of a drag on the GOP brand as abortion is now.
For a party which has lost the popular vote in 7 of the last 8 elections, lost the popular vote to Democrats 51%-46% over the past 4, lost the 2018/2019/2020/2022 and 2023 elections, has deep performance issues across the country even in red states since Dobbs, embracing mass deportations seems like a colossal political error.
It is another reason why I think our goal in 2024 should be not just to win, but to really go on offense, get to 55, and make this election an historic repudiation of the worst and most dangerous political party in our history. We can do this people!
Onward/Adelante – Simon
Thank you for reading Hopium Chronicles By Simon Rosenberg. This post is public so feel free to share it.
It’s critical to remember that migrants aren’t the ONLY target of Trump’s neo-Nazism — they might not even be the primary ones! You can guarantee that many US citizens and lawfully present non-citizens of color will be caught up in the dragnet and sent off to deportation concentration camps where due process is non-existent.
Others will simply avoid certain public places and activities for fear of being accosted. Still others will be forced underground because of fear of drawing attention to undocumented relatives or neighbors. Some U.S. citizens will fear voting, which indeed is a key part of the GOP plan to cement their “out of the mainstream” minority rule by suppressing suffrage! As those of us who adjudicated asylum claims know, many will fear reporting abuses or asserting rights to police who openly identify with their oppressors. Fear, despair, distrust, and resignation are key pillars of any authoritarian regime!
It’s attack on all people of color in America and those who might speak with an accent or dress differently from the GOP’s “White Christian Nationalist norms.”
How many of us carry around documentation proving that our parents were U.S. citizens? Notably, although occupational status is often menioned on U.S. birth certificates, citizenship status is NOT. It’s not hard to guess who will be “required” to “document” their parents’ citizenship by Trump’s internal security police!
Trump and the GOP are an existential threat to U.S. democracy, human progress, and American leadership on the world stage. Don’t let them destroy OUR country and take away YOUR rights!
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