"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.
Kathleen Guthrie Woods American Journalist & Writer San Francisco, CA PHOTO: GoodreadsHon. Dana Leigh (“NanaDana”) Marks U.S. Immigration Judge (Ret.) San Francisco Immigration Court Past President, National Association of Immigration Judges; “Founding Mother of U.S. Asylum Law”
By the time she retired from San Francisco’s Immigration Court on December 31, 2021, Judge Dana Leigh Marks* had built an inspiring reputation as a leader, mentor, and advocate. She is known for her fierce advocacy for the court. She is known for her compassion and fairmindedness. She is known for her intelligence and wit, having coined oft-repeated, appropriate zingers that help people better understand the challenges of immigration court, including “Immigration judges do death penalty cases in a traffic court setting” and “Immigration is more complicated than tax law. How do I know this? Because there is no TurboTax for immigration law.”
Talking with her former colleagues—many of whom are now also her friends—is an uplifting experience. They speak of a woman who broke through barriers, applied the law fairly and compassionately, fought hard fights, and inspired others to join her. “She’s the GOAT of immigration judges!” declares Francisco Ugarte, Manager of the Immigration Defense Unit of San Francisco’s Public Defender’s Office.
Who is Judge Marks, and how did she positively influence and impact so many lives?
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Judge Marks also thrived in this arena because she saw beyond the expectation that her role was solely to facilitate deportations; she saw the humanity inherent in the proceedings. “Every story is individual,” she says, and every person deserves to be heard.
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“She showed us all how to be fierce advocates for justice—for what is true and right and just—without crossing over lines,” says Judge King. Jamil adds Judge Marks’s “tireless” work for the union and “giving a professional, female voice to immigration judges” to her list of accomplishments. “When she started, she was one of few women. After her, all these really amazing women came to the bench,” says Shugall, women Judge Marks mentored and encouraged to apply for the bench. That roster includes Judges Jamil, King, Miriam Hayward, Stockton, Webber, and Laura Ramirez. “She helped start that trajectory,” says Shugall.
“She helped create an inspiring model for how courts can be,” says Ugarte, and Judge Webber states, simply, “She inspires people all the time.”
“While she has had some limelight in her career, the vast majority of her work has been thankless,” says Judge King. “She perseveres solely because she believes it is important to make a difference wherever you can.”
*Today Judge Marks is known as “NanaDana,” a title that celebrates her role as caretaker for her granddaughter and helps people correctly pronounce her name (“dan-uh,” not “day-nuh”).
Kathleen Guthrie Woods is a long-time contributor to San Francisco Attorney magazine. She first interviewed Judge Marks, then-president of NAIJ, for “Understanding the Crisis in Our Immigration Courts” (Spring 2015).
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Every judge, lawyer, and law student in America, and particularly AG Garland and his lieutenants, should read Kathleen’s interview with Judge Marks (full version at link) about what “American judging” should, and could, be — all the way up to the Supremes!
Dana, my friend and colleague, your inspiring career is yet more evidence of the “then-available” talent who could have led long-overdue change at EOIR and the BIA. Like you, much of that talent has moved on to our Round Table, and we’re stuck with the dysfunctional mess at EOIR. But, others are arising in your image to fight for justice, sanity, and humanity from “the retail level on up” in our Federal Courts.
I will always think of you as the “Founding Mother of US Asylum Law” because of your stellar advocacy in Cardoza-Fonseca and your unending, unapologetic, and highly vocal commitment to due process, independent thinking, and judicial excellence.
As you probably remember, I was in Court for your OA in Cardoza-Fonseca, sitting at the SG’s table as you won the day for your client. My “client,” INS, “lost” that day. But, American justice, due process, and human rights won!
As it was for you and those many you inspired, “realizing the promise of Cardoza-Fonseca” became the “guiding light” of my subsequent judicial career at EOIR, on both the appellate and trial benches. Despite the more than quarter-century since Cardoza, the battle to make judges at all levels actually follow its dictates, and perhaps more importantly, its generous humanitarian spirit, is far from won!
Congrats on your new position as “NanaDana.” 😎 I always look forward to working with you and our amazing Round Table colleagues to give due process and fundamental fairness an unyielding voice before courts throughout America, and to continue the unending fight for best judicial practices in a life-determining system that has “lost its way” as millions needlessly suffer!”
We “Knightesses and Knights of our Round Table” 🛡⚔️ will “never let the bastards grind us down!” You continue to inspire all of us in our never ending quest for justice for the most vulnerable individuals among us!
“NanaDana’s” fierce fighting spirit continues to inspire our Round Table of Former Immigration Judges to new heights in the never-ending pursuit of “due process and fundamental fairness for all!” (Ironically, the latter was actually EOIR’s long-abandoned “vision!” )
WASHINGTON — Last June, the San Francisco Immigration Court quietly tested a new idea: Fast-track the cases of immigrants whose mail wasn’t reaching them. In the trial run, 80% of the immigrants scheduled were ordered deported for not showing up.
Top officials were effusive with praise over the results, emails obtained by The Chronicle show, and rushed to set up more hearings: “Very positive!” emailed one of the top supervising immigration judges overseeing the nation’s hundreds of courts.
The newly uncovered emails reveal that the fast-track docket for immigrants with returned mail, which was first reported by The San Francisco Chronicle last fall, was cheered at the highest levels of the courts and pursued with full awareness that scores of immigrants would likely be ordered deported as a result.
Advocates and attorneys for immigrants raised concerns about the practice as a sort of deportation conveyor belt last year, as many of the lawyer-less immigrants may have no idea they missed a court hearing, much less that they were ordered deported during it, because they didn’t know how to update their address with the court or thought that Immigration and Customs Enforcement would do so on their behalf. The immigration courts are run by the Justice Department, with judges hired and ultimately overseen by the attorney general.
The emails were obtained through a Freedom of Information Act request by a nonprofit watchdog group, American Oversight, prompted by The Chronicle’s reporting. The group shared the records with The Chronicle.
The Department of Justice declined to comment specifically on the emails, noting that removal orders for failing to appear in court are legally valid and that issuing notices with new hearing dates gives unreachable immigrants an opportunity to appear in court and avoid a deportation order.
Chronicle analysis of available data last year found that the practice significantly increased the number of immigrants who were ordered deported for not being present in court, called an “in absentia” removal order. As many as 173 people were given deportation orders because of such proceedings in August and September — a nearly ninefold increase from the 20 similar orders given the previous seven months combined.
This guy doesn’t realize that he could have avoided “justice” in Garland’s Star Chambers by not appearing for his hearing!
For Garland’s “judiciary,” the object appears to be avoiding fair hearings rather than conducting them! Perhaps, that’s understandable (not justifiable) considering how poorly many of his courts’ decisions fare upon judicial review in the Article IIIs.
For his cowardly attacks on migrants and backlog-building mismanagement and misdirection of EOIR, Garland gets “Courtside’s” coveted “Five Puke-Five Thumbs Down Award!” 🤮🤮🤮🤮🤮👎🏽👎🏽👎🏽👎🏽👎🏽
While Garland is failing in his job, his concerted efforts to break apart and “alienate” key segments the Dem coalition that elected Biden is succeeding and should pay great dividends (for the GOP and Trump) in the Fall Midterms! No wonder Garland’s running the system into the ground using “Trump/Miller holdovers.”
Garland and his equally poorly performing lieutenants (Monaco, Gupta, Clarke, Prelogar) are giving us a “Master Class” in “Why Dems Can’t Govern and Blow Elections 101.”
A party that lacks the courage to act on the values it espoused to get elected doesn’t stand for anything at all!🤮👎🏽
Maybe lots of Dems pulled the lever because they wanted more of Gauleiter Stephen Miller’s White Nationalist policies. But, I haven’t heard of any!
A Salvadoran attorney who fled death threats in her home country and built a new life in Oakland faces a nearly nine-year wait for her day in immigration court. She’s among hundreds of thousands stuck in the same bureaucratic limbo.
Ana and her son first arrived in Oakland in 2016 with a harrowing story and an urgent case for asylum. They had escaped the same gang that chased her niece out of El Salvador three years earlier. Ana said the gang’s leader had stalked and threatened her niece. When she intervened, Ana said, the gang retaliated with threats of sexual violence and death.
“They pressured me to agree to many things that could be in their favor, which I did not agree to,” Ana told The Chronicle in Spanish. The Chronicle is withholding Ana’s last name in accordance with its policy on anonymous sources because of the dangers she faces if sent back.
Ana and her son first arrived in Oakland in 2016 with a harrowing story and an urgent case for asylum. They had escaped the same gang that chased her niece out of El Salvador three years earlier. Ana said the gang’s leader had stalked and threatened her niece. When she intervened, Ana said, the gang retaliated with threats of sexual violence and death.
“They pressured me to agree to many things that could be in their favor, which I did not agree to,” Ana told The Chronicle in Spanish. The Chronicle is withholding Ana’s last name in accordance with its policy on anonymous sources because of the dangers she faces if sent back.
At her first appearance in San Francisco immigration court in 2017, Ana was told to return in 2019 to make her asylum case. That court date was postponed to this past November. Then Ana received notice that her hearing had been canceled again — and rescheduled to May 2025.
Ana represents just one of the 670,000 asylum requests in the U.S., a figure that continues to climb due to the complexity of the cases, Trump administration policies that delayed processing times and the federal government’s slow adaptation to the pandemic. According to the Transactional Records Access Clearinghouse at Syracuse University, the average wait time for an asylum hearing is 1,621 days — or nearly four-and-a-half years.
In an attempt to put a dent in the growing backlog, the Biden administration announced a strategy over the summer that previous administrations have tried to expedite cases for certain groups. President Biden’s “dedicated docket” catapults 5,000 migrants who crossed the southwest border of the U.S. after May 28 to the front of the line.
But critics warn the initiative means these recent arrivals have limited time to prepare their immigration cases while migrants who have been waiting for years, like Ana, must wait even longer.
A growing backlog
Immigration Judge Dana Leigh Marks feels constant pressure to avoid getting sick. She is one of 28 judges in a San Francisco court that is fielding 78,992 immigration cases. That means if Marks needs to cancel court for any reason, the ramifications are years-long delays to “people whose lives hang on our decisions,” she said.
“That is the problem of being so overbooked,” added Marks, who spoke in her role as the president emeritus of the National Association of Immigration Judges. “The number of cases assigned to any judge have exponentially exploded in recent years.”
Like other federal immigration courts, San Francisco’s saw its asylum backlog start its sharp ascent in 2017, as the Trump administration began rolling out policy changes that tightened eligibility while increasing evidentiary thresholds, grinding processing to a halt. The court went from more than 25,000 asylum claims that year to nearly 56,000 this year, TRAC figures show.
The pandemic compounded delays by forcing courts to cancel or significantly scale back in-person hearings. Part of the problem is that the Department of Justice, which runs the nation’s immigration court system, was slow to implement video conferencing technology when judges began working from home in March 2020, Marks said.
“Other state and federal courts across the country pivoted much more quickly to the use of remote technology, which allowed them to keep their caseload moving,” Marks said.
This past summer, over a year into the pandemic, immigration hearings began taking place over Webex, a video conferencing platform. Still, only six of San Francisco’s 28 immigration judges have been set up with government-issued laptops and special audio recording capabilities to conduct the video hearings, Marks noted, and the current average wait between asylum hearings has ballooned to 1,715 days.
Ana was not given the option of a video hearing, said Julie Hiatt, Ana’s attorney from Centro Legal De La Raza. Armed with detailed legal briefs and hundreds of pages about conditions in El Salvador, Hiatt said she was ready to present her client’s gender-based persecution claim for asylum in November. But the judge couldn’t be in court that day and the hearing was pushed to the judge’s next available opening — more than three years away.
Despite believing her client has a strong asylum claim, Hiatt said the lengthy wait will make it harder to win Ana’s case, and not because the facts of the case have changed.
“I worry about memory fading, circumstances changing and everything that can happen that could impact on her ability to confidently tell her story when it comes time to do so,” Hiatt said.
Immigration advocates worry President Biden’s dedicated docket plan to cut down processing times could end up hurting asylum seekers, by rushing ill-prepared new arrivals through the process while supplanting immigrants whose cases have languished for years.
History appears to be repeating. Current Justice Department data shows that of San Francisco’s 1,138 dedicated docket cases being heard right now, 1,008 — nearly 90% — do not have legal representation.
“This docket is not fair to asylum seekers,” said Milli Atkinson, an attorney with the Justice & Diversity Center of the Bar Association of San Francisco who has witnessed local dedicated docket hearings. “These expedited dockets make it extremely difficult for respondents to find counsel and puts enormous pressure on them to move forward with their case without an attorney.”
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“What if Garland had to hang out with us in his backlogs?” Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons
Read Deepa’s full article at the link.
Notably, a 9-year wait for a merits hearing in Immigration Court more than spans the tenure of even a two-term Administration!
The scary thing is that San Francisco probably is by no means the most screwed up Immigration Court in the nation. The 9th Circuit, which reviews some of their cases and establishes precedents for the Circuit, does sometimes “call out” chronically poor performance by EOIR and poorly reasoned, anti-immigrant “precedents” emanating from the BIA and Garland’s predecessors as AG.
But, with a large number of Trump/McConnell right wing appointees, many of them younger, even the 9th Circuit is moving rightward. So, unless Biden can stem the tide, one of the last “fail safes” in a dysfunctional system might be neutered.
Although Garland has (too slowly) undone some of the worst precedents, he has yet to generate the positive legal guidance necessary to ”move dockets” by granting more cases like Ana’s. Without a new BIA, he lacks the “onboard, progressive, expert, due-process-oriented legal and judicial talent” to fashion and enforce the long overdue and badly needed “enlightened precedents” that will save lives and straighten out the law on a nationwide basis.
As pointed out by this article and other critics, EOIR is “far behind the eight-ball” in using technology to meet the challenges of justice in the age of COVID. Although EOIR has been using some form of televideo for over a quarter of a century, they fell behind other court systems when it came to adapting to COVID. After more than two decades of largely wasted time and money, the Immigration Courts still lack a functional e-filing system, which greatly compounded both dangers and chaos during COVID.
Worse yet, what limited technology that is available at EOIR appears to be used primarily for the benefit of EOIR and its bureaucrats, not for the convenience of the public it supposedly serves. How does this “practical nonsense,” unfolding on a daily basis, without meaningful engagement with judges and parties before the courts, meet any definition of competent “service to the public?” Garland has ignored aspirational, achievable, visions and progressive goals for a culture of “good enough for Government work” and “who cares, it’s only aliens and their ‘dirty’ attorneys!”
Moreover, his continuation of the unconscionable, scofflaw use of Title 42 to suspend the asylum process and send legal asylum seekers to danger or death without due process undermines his credibility and integrity as a leader and role model. Although Garland pretends otherwise, judicial, and legal leadership has a moral element that requires a sense of urgency, courage, and demonstrated competence. Garland’s leadership (and that of his “Senior Team” of political appointees at the DOJ) has fallen woefully short!
Judge Dana Leigh Marks is a good example of Garland’s exceptionally poor approach. One of the best judges in America, on any court, including the Supremes, Marks is a proven fearless leader and extraordinary legal mind. Her victory at the Supremes in INS v. Cardoza-Fonseca, establishing the “well-founded-fear” international standards for asylum, is probably the Court’s most important humans rights’ case of the 20th Century. Her dynamic, inspiring leadership of the National Association of Immigration Judges has helped expose the grotesque shortcomings of EOIR @ DOJ while giving rise to the national movement for an Article I independent Immigration Court outside the DOJ.
I daresay that Judge Marks can “move” asylum cases through the system without tromping on anyone’s due process tights. She, and others like her, both currently in and outside the system, could set a new tone and lead the way toward a better, fairer future!
Too many of her fellow judges, and most members of the BIA not named Saenz, lack the expertise, experience, motivation, and courage to do that. So, cases like Ana’s, which actually might serve as positive precedents for documenting and granting other asylum cases, languish among Garland’s inconceivable backlog while other potentially grantable cases are unfairly pushed to the front of the line without attorneys, adequate preparation time, or accountability for judges programmed to deny rather than stand up for due process and asylum seekers’ legal rights! Much, but by no means all, of this predictably sloppy work product is returned by the Article IIIs for “redos,” thus adding to the backlog, chaos, and “institutionalized arbitrariness” of this approach to “justice!”
Judge Marks is an articulate, energetic experienced public spokesperson for immigration and court reform. She knows where the “bodies are buried” and the “deadwood stored” at EOIR; she has has actual solutions and ideas for addressing many problems now infecting our Immigration Courts. And, unlike past generations of EOIR bureaucrats and “go along to get along judges,” she has no fear and can’t be intimidated!
Judge Marks is already on the payroll. Garland could and should have tapped her on “Day One” to be part of a “Transitional Leadership Group” at EOIR to start “knocking heads and making long overdue due-process-driven changes” while Garland and his Team, with outside input, conducted an expedited emergency, merit-based process to recruit and replace the BIA and Senior Management at EOIR with a diverse team of progressive “practical scholars” as judges and dynamic, progressive, problem-solving leaders and administrators of the Immigration Courts. These sensible recommendations actually were made during the transition period, only to be totally ignored by Garland!
Instead, after a nearly a year, Garland’s tone deaf and dilatory (non)approach to EOIR reform has allowed the system’s continued disintegration, further undermined the credibility of his DOJ, demoralized and “de-enthused” potential supporters in the advocacy community, and continued to degrade and destroy human lives.
Thing is, tough-minded, courageous, ethically-driven, “practical scholars” like Professor Harris, Professor Kit Johnson (who posted Harris’s article on ImmigrationProf Blog), and others like them could and should have been enticed by an “AG with a Plan” to join the BIA, serve on the trial bench at the Immigration Courts, or otherwise occupy key positions @ EOIR.
Better choices for the now-broken and regressive Immigration Judiciary are out there? Why hasn’t Garland tapped them? Kit Johnson Associate Professor of Law University of Oklahoma Law School
Like Judge Marks, these folks would put an end to “Aimless Docket Reshuffling,” the culture of mindless denial, the improper use of Immigration Courts as (failed) deterrence, and start holding the “main perpetrators” at EOIR and at DHS accountable for their disregard and disrespect for the quasi-judicial system. They would also know how to write and apply accessible “practical scholarly” precedents (written in plain English, rather than “opaque judicial gobbledygook”) that would fulfill our legal (not to mention moral) obligations to provide fair and generous treatment of vulnerable asylum seekers and others caught up in this now-disreputable and dysfunctional parody of a court system.
Instead, Garland has countenanced a continuation of “Clown Courts” 🤡 and “star chambers” ☠️ that have become contributing factors in the precipitous and perhaps fatal disintegration of democracy in America.
”This is Stephen Miller’s perverted ‘vision of justice in Immigration Court!’ Why hasn’t Garland moved beyond it by bringing in the ‘best and brightest’ to reform his dysfunctional EOIR system?” “Justice” Star Chamber Style
Undoubtedly, the same White Nationalist “replacement theory” motivation that was behind Trump’s weaponization of the Immigration Courts is a driver of the overall anti-democracy movement on the right.
It’s a shame, that given at least a good shot at making a difference, Dems are too timid, distracted, and frankly, inept to pick off the “low hanging fruit” within their reach!
🇺🇸Due Process Forever! And, many thanks to Deepa for putting in the spotlight Garland’s disgraceful failure to lead and institute due process reforms in his dysfunctional, hopelessly backlogged, wholly-owned and unprofessionally operated Immigration “Courts.”
Confusion, delays as videos replace interpreters at immigrants’ hearings
By Tal Kopan
WASHINGTON — The Trump administration has been slow to implement its new policy replacing in-person interpreters with informational videos at immigrants’ initial hearings, but the switch is causing delays and confusion where it has been introduced, including in San Francisco, observers say.
So far, the policy has been rolled out to courts in just four cities: San Francisco, Los Angeles, Miami and New York.
It’s not clear when the policy will expand. A spokesman for the Justice Department division that oversees the courts said the agency “is taking into consideration all feedback before additional translation videos are created and the program is rolled out to further immigration courts.”
Judges and attorneys observing the courts say the change has mostly served to delay proceedings, by adding lengthy steps and information that is not necessary for all migrants to hear.
After the videos are shown, each immigrant is called up for his or her individual hearing and may have questions for the judge. Although judges are now barred from scheduling in-person interpreters for the hearings, at times interpreters can be found on short notice in the courthouses. When none is available, judges must try a telephone service to reach an interpreter.
At issue are what are called master calendar hearings — immigrants’ first appearance in courts that determine whether they can remain in the U.S. The typically rapid-fire sessions serve to inform migrants of their rights and the process they will go through. Judges also schedule their next hearings.
Many immigrants in the system are Spanish speakers, but it’s also common for Chinese, Creole, and several indigenous languages from Central America and around the world to be spoken in courtrooms.
Judges in courts that have made the change are required to play either a Spanish-dubbed or English-language video for immigrants who do not have attorneys representing them. The 20-minute video runs through a lengthy list of technical legal advisories. Videos in other languages are not yet available, but the Justice Department has plans to introduce them.
Most of the dozens of immigrants going through their initial hearings Tuesday in San Francisco were shown the video. Many of them had attorneys present who translated, and others were able to use a Spanish-speaking interpreter who was on hand. Languages spoken in court included Spanish, Punjabi, Hindi, Mandarin and Fijian.
One hearing in the courtroom of Judge Arwen Swink involved a Mongolian woman who needed translation. After about five minutes, Swink was able to secure an interpreter in her language through the telephone service Lionbridge.
Swink asked the interpreter to introduce himself to the woman, who did not have an attorney, to ensure that she understood him. The interpreter said he had trouble hearing, but court staffers brought the microphone closer to the woman and the session was able to proceed.
With an interpreter in the room, such a hearing can take five minutes or less. The woman’s case took 15 minutes.
The Chronicle has obtained transcripts of the separate videos that are played for immigrants who are in detention and not in detention, as well as an FAQ handout they receive.
Roughly a fifth of the videos are devoted to a discussion of “voluntary departure,” under which immigrants can go back to their home country without being penalized if they try to come back someday. The videos also warn immigrants of the criminal consequences of trying to re-enter the country illegally after being deported.
Legal experts and veteran immigration judges say neither topic was commonly brought up in initial hearings before the videos were introduced because they are most relevant at the end of cases, if migrants do not prevail in their bid to remain in the U.S. Several said they feared the emphasis on voluntary departures and criminal penalties could prompt immigrants with valid claims to stay in the U.S. to waive their right without fully understanding what they’re doing.
The Justice Department did not consult with the union that represents immigration judges before making the change, and has proceeded despite ongoing bargaining with the group. The result is “lots of confusion, constantly changing parameters of the program by the agency and frustration among many judges,” said Ashley Tabaddor, president of the National Association of Immigration Judges and an immigration judge in Los Angeles.
Tabaddor added that courts in New York and Miami have had trouble securing help by phone, and that cases have been delayed in the Los Angeles court because of shortages of interpreters.
Amiena Khan, the union’s executive vice president and a judge in New York, said the videos make for a “really long day” for unrepresented immigrants who have to wait through proceedings for all migrants who have attorneys before watching a 20-minute video. She finds herself repeating or adding key advisories when immigrants are called before her.
“There was no problem that needed to be solved by the introduction of the video,” Khan said. “What I think really bothers me is that it’s mandatory. I think if it was discretionary as a tool for the judge to use, it could be helpful. (But) it takes away our judicial independence as to what method to employ to best get through the day’s docket.”
Khan and former immigration Judge Jeffrey Chase, who reviewed the transcripts, also noted that the videos do not include information that would be important for immigrants, including that they have only one year to formally apply for asylum in the U.S.
“The information provided is misleading in a way that can lead to a noncitizen’s removal,” said Chase, who now volunteers for organizations that provide legal assistance to immigrants.
Laura Lynch, senior policy counsel for the American Immigration Lawyers Association, said the transcripts show that the videos use “scare tactics” instead of informing immigrants of their rights. The videos warn immigrants against filing frivolous asylum claims, but don’t explain what asylum is, she noted.
“The videos provide an overwhelming amount of information that no one can easily digest in one setting,” Lynch said. “What’s more disturbing is that the content itself only tells one side of the story.”
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Click on the link for Tal’s full story with links to actual transcripts of this “parody of justice.”
This is DOJ/EOIR’s “malicious incompetence” in action. Accurate interpretation is essential to Due Process and fundamental fairness as well as the hallmark of a competently and professionally run court system. Somewhere along the line, the money for interpreters was frittered away by what passes for “management” at DOJ/EOIR. And, let’s not even think about the waste of money on absurd “Immigration Judge Dashboards” while the two decades old overwhelming need for a functional nationwide e-filing system goes unmet.
Right now, Congress is paralyzed. When are the Article III Courts going to wake up, get some backbone, and enforce the U.S. Constitution by putting an end to this so-called “court system” run by prosecutors that provides not even a semblance of fair and impartial (and at least minimally competent) adjudication? No more “Clown Court!”🤡
Hon. Dana Leigh Marks writes in the Center for Migration Studies Tribute to the late Juan P. Osuna:
On November 15, 2018, CMS hosted an event on access to justice, due process and the rule of law to honor the legacy of Juan Osuna, a close colleague and friend who held high-level immigration positions in four administrations over a 17-year period. Prior to his government service, Mr. Osuna served as a respected editor and publisher and a close collaborator with many civil society organizations. As a follow-up to its November 15th gathering, CMS will be posting and publishing a series of blogs, essays, talks, and papers on the values and issues to which Mr. Osuna devoted his professional life, and ultimately compiling them as part of a CMS special collection in his memory.
I found immigration law quite by accident in 1976, the summer between my second and third years of law school. I responded to an ad for a part-time law clerk. The small law office was near school, paid well, and had nice support staff, so I took the job, barely knowing what the daily work would be. The field of immigration law was so small at that time that my law school only offered one, semester-long immigration law course every other year. It was not offered in the one year I had left before graduation. I have never taken an academic immigration law class, but rather learned my trade from generous practitioners who gave up their Saturdays once a month to teach free seminars to new practitioners. It was from that perspective that I developed a profound respect for immigration lawyers, so many of whom freely shared their knowledge in the hope of ensuring that quality legal services were offered to the immigrant community.
For me, the daily practice of immigration law was akin to love at first sight. It was the perfect mix of frequent client contact with fascinating people from all walks of life and all socioeconomic backgrounds that made me feel as if I was travelling the world; and a combination of social work and complex legal puzzles that intellectually intrigued me. As I became immersed in the field, I became totally hooked by the compelling stories behind my cases, as well as the complicated legal strategies that many cases required. At the time I began my career, I did not understand why immigration lawyers were generally ranked only slightly above ambulance chasers. My experience allowed me to interact with brilliant lawyers dedicated to helping their clients, often with little acknowledgement and meager remuneration.
When I began to practice and tried to explain the basics of immigration law to interested legal friends, it became clear to me that the statutory structure of this field of law was quite unique, but fairly sensibly built on general parameters of who would be a benefit to our country and thus should be allowed to find a way to legalize their status; and who were the bad actors who should not be allowed into the country or allowed to stay even if their initial entry had been legal. It struck a balance between family reunification and business and labor needs. There was even a category for industrious, pioneering individuals to come without sponsorship so long as they were able to support themselves financially. In short, it seemed to me to be a logical balance, with fair criteria to limit legal status to deserving, law-abiding people. Some of the hurdles that had to be overcome — for example, to test the labor market to protect US workers where one wanted to immigrate as an employee, or lengthy quotas that resulted in separation of families of lawful permanent residents (LPRs) — were clunky and cumbersome, but on the whole the system seemed to work fairly rationally.
While some aspects were frustrating and individual immigration officers sometimes seemed inflexible or even a bit irrational, I do not remember the legal community who helped immigrants being tormented by draconian twists and turns in the law on a daily basis, which is how it has seemed lately. When someone was in deportation proceedings, there was the possibility of showing that, after having lived in the United States for more than seven years as a person of good moral character, if one’s deportation would cause oneself or a qualifying US citizen (or LPR) spouse, parent, or child extreme hardship, one could qualify for suspension of removal and eventual permanent resident status. There was also the possibility of qualifying for withholding of deportation if one was more likely than not to suffer persecution if returned to one’s homeland if one had fled a communist country or certain specified geographic areas. Yes, the preference quotas could be problematic, but all in all, it seemed to me at that time that most people who wanted to regularize their status could carve out a reasonably achievable path towards their goal, while the bad actors who were sent home deserved that fate. Every so often there were sad cases of nice people who could not find a category that allowed them to stay, but somehow it just did not seem as harsh a result for so many people as it does lately.
The codification of the Refugee Act in 1980 ushered in a particularly exciting time. A large portion of my client base was from El Salvador, Guatemala, and Nicaragua, and the civil wars raging in the late 1970s were generating an influx of refugees. The stories I began to hear were exceedingly disturbing accounts of war and the cruelty which all too often accompanies it, but the horror was counterbalanced by the satisfaction of finding a way to protect people from further victimization by helping them secure safe haven in the United States. From an academic perspective, seeing how a statute evolved, through real-time interpretation and application, was a fascinating process — something many lawyers do not experience in their entire career. Then, to top it off, the Ninth Circuit set the stage to allow me to present oral argument in a case before the US Supreme Court in 1986. I am very proud that I, along with colleagues Kip Steinberg, Bill Hing, and Susan Lydon, were able to establish lasting precedent through our representation of Luz Marina Cardoza-Fonseca, making it clear that the use of the term “well-founded fear” was a significant change in the law and assuring that the adherence of the United States to the UN Protocol on Refugees was intended by Congress to guide our interpretation of US asylum law.[1]
Just as the briefs were being submitted, I learned that there was an opening for a judge at the immigration court in San Francisco, a location I had vowed never to leave. I struggled with the decision of whether or not to leave a practice with partners I truly loved, or to dive into a new adventure, in the hope that I could lead by example and prove that a former private practitioner could be viewed as an impartial and fair judge, respected by both the prosecution and defense bars. It was an exciting time at the immigration court because only a few years earlier, in 1983, the Executive Office for Immigration Review (EOIR) was created as a separate agency outside the Immigration and Naturalization Service (INS) as a component in the Department of Justice (DOJ). That step was a vital step forward, acknowledging the important distinction which must exist between the prosecutor and the judge in deportation hearings. I went for it and became a member of a corps of 68 immigration judges working for EOIR at that time.
I found the transition to the bench challenging. There was far less interaction and discussion among peers as to how thorny legal issues might be resolved. In addition, because of the need to remain distant from the lawyers who appeared before me, I was much lonelier than I had been in private practice. While I found the interactions in the courtroom just as fascinating as in the first days of my legal career, there was a part of me that was unfulfilled. The stories I heard were riveting and the ability to resolve a conflict in a fair way extremely satisfying. However, I soon realized just how large a part advocacy played in my personality and path to personal satisfaction. This was quite a dilemma for a neutral arbiter who was determined to show the world that a former private practitioner could give both the government and the respondent a fair day in court! I searched to find an appropriate outlet for that aspect of my character, and the answer came in the form of my volunteer work for the National Association of Immigration Judges (NAIJ).
The NAIJ was formed in 1979 as a professional association of immigration judges to promote independence and enhance the professionalism, dignity, and efficiency of the immigration courts. Through my membership and eventually leadership at NAIJ, I was able to help my colleagues as a traditional labor union steward, as well as to educate the public about the important role played by the immigration court and the reality which exists behind the cloak of obscurity the DOJ favors. Many people, lawyers included, are surprised to learn that the DOJ insists on categorizing immigration judges as attorney employees, which gives rise to a host of problems for both the parties and for judges themselves.
While the creation of EOIR was a huge step forward, there was still considerable influence wielded by the INS. From courtrooms to management offices, ex parte communications occurred at all levels, and our relatively small system remained dwarfed by the behemoth immigration enforcement structure. My NAIJ colleagues and I worked hard to elevate the professionalism of our corps, to adhere to the American Bar Association (ABA) Model Code of Judicial Ethics, and to insulate our courts from political or ideological driven agendas, with the goal of assuring that all who appeared before us had a fair day in court. But we have always faced the headwinds of our classification as attorneys in an enforcement-oriented agency and the tension caused by enforcement goals that run counter to calm, dispassionate deliberation and decisional independence.
Despite the creation of EOIR and its early promise that we would benefit from enhanced equality with those who enforced our nation’s immigration laws, we remained “legal Cinderellas,” mistreated stepchildren who seemed to be doomed to endless hard work without adequate resources or recognition for our efforts. From the time I became an immigration judge, we have never received the resources we needed in a timely or well-studied manner, but instead for decades we have played catch-up, had to make do with less, and have faced constant pressure to do our work faster with no loss of quality. Immigration judges scored a legislative victory when our lobbying efforts codified the position of immigration judge in the mid-1990s, and again in 2003 when we succeeded, quite against the odds, to remain outside the enforcement umbrella of the Department of Homeland Security (DHS) when it was created. Those accomplishments were quite sweet, but unfortunately, they did not go far enough — a fact predicted by my NAIJ colleagues and me.
When I fast-forward to today, I see a substantive law which has spiraled out of control and a court system on the brink of implosion. The law has become so misshapen by unrelated, sometimes conflicting or overly repetitive congressional tweaks that it has become an almost unnavigable labyrinth, where many are lost on the way to their ultimate goal because of unanticipated interactions by the various incarnations of the statute. For example, the myriad criminal provisions interact illogically and conflict in ways that allow some clever lawyers to navigate a path for their clients, while pro se respondents become blocked from status with far less serious criminal histories because of an inability to parse nuances and wage creative legal battles.
And many provisions of the statute would surprise, or even shock, members of the public. Many people do not know that there is no such thing as “anchor babies” because US citizens cannot sponsor a parent until they are over 21 years of age, and even then, the parent’s years of unlawful presence in the United States often present a virtually insurmountable bar to legal status. Many do not realize that US citizen children are routinely de facto deportees when their parents are removed, or that parental rights can be terminated for responsible, loving parents who are held in immigration detention and thus are prevented from appearing in family court to exercise their parental rights. Nor does someone become a US citizen (or even lawful resident) just because of marriage to a US citizen. But perhaps the most sobering fact that is little known by the public is the fact that there is no statute of limitations for crimes under the immigration laws. Therefore, LPRs can be deported decades after a conviction for a relatively minor drug crime because there is no mechanism in the law which allows them to remain, despite deep roots in the community and sometimes being barely able to speak the language of the country of their birth.
I am deeply concerned that decisions on immigration legislation so often seem to be based on sound bites or knee-jerk reactions to individual horror stories rather than careful and unbiased analysis of documented facts and trends. I fear the public is deprived of the ability to form a well-reasoned opinion of what the law should provide because the rhetoric has become so heated and the facts so obscured. The immigration law has grown away from allowing decision-makers, especially immigration judges, to make carefully balanced decisions which weigh nuanced positive and negative considerations of someone’s situation. Instead, rigid, broad categories severely limit the ability of those of us who look an immigrant in the eye and see the courtroom filled with supporters from carefully tailoring a remedy, which can make our decisions inhumane and disproportionate. Such rigidity reflects poorly on our legacy as a country that welcomes immigrants and refugees and leads to results which can be cruel and not in the public’s interest.
In the rush to reduce the backlog that was decades in the making, our immigration courts are once again in the hot seat, and individual judges are being intensely pressured to push cases through quickly. Immigration judges are placed in the untenable position of having to answer to their boss because of their classification as DOJ attorneys who risk loss of their jobs if they do not follow instructions, and yet we judges are the ones who are thrown under the bus (and rightfully so) if the corner we cut to satisfy that unrealistic production demand ends up adversely impacting due process. That pressure is intense and the delicate balance is one that often must be struck in an instant through a courtroom ruling — made all the more difficult because of the dire stakes in the cases before us. But, just to make it abundantly clear to immigration judges that productivity is paramount, last October our personnel evaluations were changed so that an immigration judge risks a less than satisfactory performance rating if s/he fails to complete 700 merits cases in a year. The DOJ’s focus and priority in making that change is not subtle at all, and the fact that our corps has recently expanded so fast that dozens, if not hundreds, of our current judges are still on probation, makes this shift an even more ominous threat to due process. The very integrity of the judicial process that the immigration courts are charged by statute to provide are compromised by actions such as this. Production quotas are anathema to dispassionate, case-by-case deliberation. One size does not fit all, and quantity can take a toll on quality. Perhaps most important, no judge should have his or her personal job security pitted against the due process concerns of the parties before them.
I know I am not alone in feeling the weight that this constellation of circumstances of an out-of-date law and political pressure on immigration judges has created. All around me, I see frustration, disillusionment, and even despair among immigration law practitioners who are also suffering the consequences that the speed-up of adjudications places on their ability to prepare fully their cases to the highest standards. I see many colleagues leaving the bench with that same mix of emotions, a sad note upon which to end one’s career. Yet I can completely relate to the need to leave these pressures behind. I have witnessed several judges leave the bench prematurely after very short terms in office because they felt these constraints prevented them from being able to do the job they signed up to perform.
It is supremely discouraging and, frankly, quite a challenge to remain behind in that climate. But as I write these reflections, I know I am not ready to leave quite yet. We must learn from history. We must do better for ourselves and the public we serve. Our American ideal of justice demands no less. When we canaries in the immigration courtrooms began to sing of our need for independence decades ago, we were seen as paranoid and accused of reacting to shadows in the mirrors of our cages. Finally now, we are seen as prescient by thousands of lawyers, judges, and legislators across the country, as reflected by proposals by the ABA, Federal Bar Association, National Association of Women Judges, Appleseed Foundation, and American Immigration Lawyers Association. There are signs that these calls are being heeded by lawmakers, although the legislative process seems both glacial and mercurial at best. The creation of an Article I Immigration Court is no longer a fringe view, but rather the solution to the persistent diminution of essential safeguards our system must have, clearly acknowledged by experts and stakeholders alike.
The challenges our nation faces as we struggle to reform our immigration law to meet modern needs are many, but a single solution for a dramatic step towards justice has become crystal clear: we must immediately create an Article I Immigration Court. We cannot afford to wait another 40 years to do it. Besides, I want to see it happen in my professional lifetime so that the chapter can be complete and the clock is ticking…
[1] See INS v. Cardoza-Fonseca, 480 US 421 (1987).
DISCLAIMER: The author is President Emeritus of the National Association of Immigration Judges and a sitting judge in San Francisco, California. The views expressed here do not necessarily represent the official position of the US Department of Justice, the Attorney General, or the Executive Office for Immigration Review. The views represent the author’s personal opinions, which were formed after extensive consultation with the membership of NAIJ.
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Here’s a somewhat abbreviated version by
Dana published as an op-ed in the Washington Post:
Thanks, Dana, my friend and colleague, for the memories.
Because she successfully argued INS v. Cardoza-Fonseca before the Supremes, establishing the generous “well-founded fear” standard for asylum, I often refer to Dana as one of the “Founding Mothers” of U.S Asylum Law. *
One thing is for certain: The current immigration mess can’t be resolved until we have an independent Article I U.S. Immigration Court.
Given the inappropriate, unethical, and frankly idiotic, regulatory proposals just made by the DOJ under Barr, guaranteed to further screw up appellate review at EOIR, the Article III Courts of Appeals are soon going to be bearing the brunt of more sloppy, unprofessional, biased decision-making by EOIR on a widespread, never before seen, scale. Unless the Article III’s completely tank on their oaths of office, there will have to be “massive pushback” that will eventually bring the removal system close to a halt until Congress does its job and restores Due Process under our Constitution.
Last time a similarly overt attack on Due Process in the appellate system happened under Ashcroft, the results at the Article III level weren’t pretty. But, guys like Barr are too dense, biased, and committed to the White Nationalist restrictionist program to do anything constructive.
Given the increased volume and the “malicious incompetence” of this Administration, as well as a much better prepared and even more talented and highly motivated private bar and NGO community (the “New Due Process Army”), the DOJ should continue to set new records for court losses and squandering of taxpayer funds on what would be deemed “frivolous litigation” if brought by any private party.
That’s not to say, however, that thousands of human beings won’t have their rights denied and be screwed over by the Trump Administration in the process. Some will die, some will be tortured, some will be maimed, some disfigured, some damaged for life. That’s the human toll of the Trump scofflaws and their malicious incompetence.
* HISTORICAL FOOTNOTE: At the time of Cardozoa-Fonseca, I was the Deputy General Counsel and then Acting General Counsel of the “Legacy INS.” I helped the Solicitor General develop the agency’s (ultimately losing) position and was present in Court the day of the oral argument sitting with the SG’s Office.
So, I was an “eyewitness to history” being made by Dana’s argument! We went on to become great friends and worked together on NAIJ issues and
“negotiating teams” during my time as an Immigration Judge.
Here are two redacted “post-Matter of A-B-” decisions from U.S.Immigration Judges correctly interpreting the law to grant relief to refugee women from Central America who have been victims of gender-based persecution in the form of domestic violence.
Assistant Chief U.S. Immigration Judge Deepali Nadkarni of the Arlington Immigration Court granted this case based on a PSG of “women in Honduras.”
Compare the outstanding organization, methodical scholarly analysis, proper use of country conditions, and logical conclusions of these decisions written by fair and impartial judges with the pages of legal gobbledygook and anti-asylum screed set forth by xenophobic politico Jeff Sessions in Matter of A-B-, 17 I&N Dec. 316 (BIA 2018).
In a properly functioning system, decisions like these would be the published precedents, not the misleading, inaccurate, and confusing decision of the Attorney General which has already been firmly rejected by U.S District Judge Sullivan in Grace v. Whitaker. Decisions like these two, if used as models, could actually help speed along the grant process in both the Asylum Office and the Immigration Courts, thus expediting justice without sacrificing Due Process.
As it is, these decisions should be helpful to counsel presenting cases of abused women in Immigration Court.
Assistant Chief Judge Nadkarni and Judge Hayward show what the U.S. Immigration Court system could be if the improper political meddling and enforcement bias were removed and the Immigration Court were allowed to operate independently. Unfortunately, there are some Immigration Judges out there who are intent not on judicial excellence, but on using Matter of A-B- to railroad refugees through the system into the “deportation mill” without Due Process. That’s why we need a diverse and independent appellate body that can reinforce “best practices” while keeping those judges who aren’t fairly and correctly applying asylum law in line and, perhaps, encouraging them to find other careers.
Congratulations to both Assistant Chief Judge Nadkarni and Judge Hayward for having the courage to stand tall for the rule of law, Due Process, and fundamental fairness for the most vulnerable in our society — the actual (if now largely discarded) mission of the U.S. Immigration Courts. I should know, since I helped draft that now-forgotten “vision statement.”
Also, many congrats to counsel Mark Stevens (who appeared before me many times in Arlington) and Kelly Engel Wells for their outstanding work and to the unnamed but still critically important ICE Assistant Chief Counsel who appear to have done an outstanding job of presenting these cases.
NOTE: Judge Miriam Hayward recently retired and has joined “Our Gang” now numbering at least 32 retired U.S. Immigration Judges and Appellate Immigration Judges.
Although it hasn’t caught the attention of the public or the media, the Supreme Court’s June 21 decision in Pereira v. Sessions has inspired immigration lawyers this summer, giving reason to hope and dream. Unfortunately, the case’s importance gets lost in the details to those not proficient in the field of immigration law. The issue that the Supreme Court agreed to decide was a narrow one: whether a Notice to Appear (i.e. the document that must be served by DHS on the Immigration Court in order to commence removal proceedings) that lacks a time and a date of the initial hearing is sufficient to invoke the “stop-time rule” that would prevent a noncitizen from accruing the 10 years of continuous presence in the U.S. needed to apply for a relief from deportation called cancellation of removal. If you are a layperson, I’m sure I’ve already lost you. But read on, as what preceded doesn’t really matter for purposes of our discussion; the important part is yet to come.
BIA precedent decisions that are subpar in their rationale are often upheld by circuit courts because of something called Chevrondeference. Chevron refers to a 1984 Supreme Court case requiring courts to defer to the interpretation of statutes by federal agencies that are specifically charged with administering the statute in question. The Board of Immigration Appeals is a part of one of the agencies (EOIR) charged with administering immigration laws; therefore, under Chevron, its decisions are owed deference by the circuit courts, even if those courts disagree with the BIA’s decision or would have reached a different outcome themselves. But before such deference is owed, the decision must pass a two-step test. First, the reviewing court must find that the statute the BIA is interpreting is ambiguous. This is important, because if the statute is clear on its face, there is no basis for the agency to have to interpret that which needs no interpretation. Only if the court determines that the statute is in fact ambiguous does it apply the second step of the test, which is whether the agency’s interpretation is reasonable.
I’m pretty certain that I’ve lost even more readers in the preceding paragraph. I thank those of you who are still with me for your patience. In Pereira, the statute involved is section 239(a) of the Immigration and Nationality Act, which states what information the Notice to Appear (i.e. the document needed to commence removal proceedings) must contain. In a 2011 precedent decision, the BIA had interpreted that statute to mean that the time and date of the initial hearing were not critical elements, and that their inclusion was not required to trigger the stop-time rule. Six federal circuits accorded Chevron deference to the BIA’s interpretation. The lone exception was the Third Circuit. The Supreme Court agreed to hear the case to resolve this split. In an 8-1 decision (in which even Justice Gorsuch, Trump’s appointee, joined the majority), the Court sided with the Third Circuit. The Court explained that no Chevrondeference was due because the statute was crystal clear, as it said in no uncertain terms that a time and a date are among the information a Notice to Appear must contain.
Finally, here is the really important part. In its decision, the Supreme Court stated that a notice that does not contain a time and date of hearing “is not a notice to appear” under section 239(a). The highest court in the land did not say that it is not a notice to appear only for some narrow purpose; it bears repeating that it said without such information, the document is not a Notice to Appear.
Those of you who are still reading might feel let down about now. You’re saying “That’s it? Where is the big payoff I was promised? I’ll never get those three minutes of my life back that I just wasted reading jibberish about some kind of stopping rule that I still don’t understand.” So here is where I hope I make it worthwhile. All of us immigration lawyers read the above sentence and instantly thought the same thing: if the Supreme Court just said that a notice without a time and date is not a Notice to Appear, than almost every one of our collective clients were never properly put into removal proceedings. The Supreme Court decision mentioned that when asked what percentage of NTAs issued in the past three years lacked a time and a date, the government responded “almost 100 percent.” There are presently close to 750,000 cases pending before immigration courts, and there were hundreds of thousands of cases already decided by those courts over the past 15 or 20 years that also involved NTAs missing the time and date. And the courts are now going to have to find that nearly all of those proceedings were invalid. Old removal orders will have to be reopened and terminated. Almost all pending cases will have to be terminated. Although DHS will at least intend to restart all of those hearings over by now serving each individual with an NTA that does contain a time and date, how long might that take to accomplish? And even if they are placed into proceedings again, those who were previously denied relief get a second chance. Perhaps this time with a different judge, a better lawyer, and more equities in their favor?
So in a year in which the Attorney General has tried to remake immigration laws to his own liking, and continues to assault the independence of the only judges he directly controls; in which children have been unapologetically separated from their parents at the border, in which victims of domestic violence have been told the rapes and violent abuses they have suffered are will get them no protection in the U.S.A., Pereira allowed us to dream of pushing a “restart” button, a “do-over.” Attorneys began filing motions to terminate. The response of immigration judges was mixed, with some agreeing with the argument and terminating proceedings; while others said no, Pereira was only meant to apply to the narrow technical issue of the “stop-time” rule, and not to the broader issue of jurisdiction.
Of course, the BIA needed to weigh in on this issue. I had no doubt that the Board would rule with the latter group and find that proceedings need not be terminated. And of course, on Friday, that’s just what they did. The response from the legal community has been one of outrage. First of all, it normally takes 18 months or longer for the BIA to issue a precedent decision; it can sometimes take them many years. Here, the Board issued its decision in two months. As one commenter pointed out, it reads like a college freshman paper written at midnight. Considering the importance of the issue, the Board truly abandoned its legal responsibility by cranking out such a poorly written decision that fails to address (much less adequately analyze) most of the major issues raised by Pereira.
While I could go on and on with what is wrong with the BIA decision (issued on a Friday afternoon before the Labor Day weekend, the better to sneak under the radar), I’ll just focus here on one point. The decision (written by Board Member Molly Kendall Clark), cites the applicable regulation (8 C.F.R. section 1003.14(a)), which states that “Jurisdiction vests, and proceedings before an Immigration Judge commence, when a charging document is filed with the Immigration Court by the Service.” As background, another section of the regulations defines “charging document” to include a “Notice to Appear.” The documents in question here all purport to be Notices to Appear, and do not meet the definition of any other charging document described in the regulation. Kendall Clark writes that the regulation does not specify what information must be contained in the charging document at the time it is filed with the Immigration Court, “nor does it mandate that the document specify the time and date of the initial hearing before jurisdiction will vest.”
Really? Because the U.S. Supreme Court just said, very clearly, that a notice lacking a time and date of hearing is not a Notice to Appear. How is it OK for the BIA to just ignore a crystal clear holding of the Supreme Court?
The answer is that in the mind of the BIA’s judges, the Supreme Court doesn’t have the ability to fire them, while the Attorney General does. The other truth is that while BIA judges have been removed under Republican administrations for being too liberal, none has ever suffered any consequences under Democratic administrations for being too conservative. Although I’m in the liberal camp, I’m not saying that the BIA is not entitled to reach a conservative conclusion. But it can’t so blatantly disregard the law (in particular, a decision of the Supreme Court) out of self-preservation or political expediency.
The next step will be appeal of the issue to the various circuits. In light of Pereira, there should be no Chevron deference accorded to the Board’s latest decision. However, should another circuit split result, this issue may end up before the Supreme Court again.
Copyright 2018 Jeffrey S. Chase. All rights reserved.
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Here’s a copy of the BIA’s precedent decision in
Matter of BERMUDEZ-COTA, 27 I&N Dec. 441 (BIA 2018):
Want to see a better, more logical approach that would have honored the Supremes’ reasoning in Pereira? Here’s a succinct, well-reasoned opinion from Judge Elizabeth Young of the San Francisco Immigration Court that refutes each ICE argument and shows why the BIA’s approach in Bermudez is likely to be rejected by at least some Circuit Courts.
(Thanks to Professor Alberto Benítez of the GW Law Immigration Clinic for sending this along.)
That no BIA Appellate Immigration Judge was willing to argue the much more logical and legally defensible approach presented in Judge Young’s decision illustrates how little real deliberation or debate remains at today’s BIA. Basically, a deliberative tribunal that no longer dares or cares to publicly deliberate in setting precedents and that decides the vast majority of non-precedent cases as “panels of one.”
As Jeffrey points out, the BIA and ICE appear to be on self-created course for a potential “Pereira II.” That, in turn, could result in hundreds of thousands of cases being subject to remand or reopening for termination. On the other hand, if ICE just reserved the NTA now, as suggested at the end of Judge Young’s opinion, the whole problem could largely be avoided. Go figure!
Yet another example of how the backlog is unlikely to diminish as long as the Immigration Courts remain in DOJ, and particularly with Jeff Sessions as the AG.
