"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.
Knightess of the Round Table — Somebody’s listening to our message! Too bad the Biden Administration doesn’t! It would save lots of time, resources, and lives if they did!
JUSTICE JACKSON delivered the opinion of the Court.
Under 8 U. S. C. §1252(d)(1), a noncitizen who seeks to challenge an order of removal in court must first exhaust certain administrative remedies. This case presents two questions regarding that statutory provision. For the rea- sons explained below, we hold that §1252(d)(1) is not juris- dictional. We hold further that a noncitizen need not re- quest discretionary forms of administrative review, like reconsideration of an unfavorable Board of Immigration Appeals determination, in order to satisfy §1252(d)(1)’s exhaustion requirement.1
. . . .
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Read the full opinion at the link.
So, why is a Dem Administration under AG Garland taking anti-immigrant positions that can’t even garner a single vote on the most far-right Supremes in recent history?
Incredibly, the DOJ made the absurdist argument that, in violation of the statute, an additional unnecessary layer of procedural BS should be inflicted on individuals already dealing with the trauma of a dysfunctional system running a 2 million plus backlog and a BIA with more than 80,000 un-adjudicated appeals at last count! Where’s the common sense? Where’s the competence? Where’s the “better government” that the Biden Administration promised?
Meanwhile, our Round Table continues to put our centuries of collective experience in due process, fundamental fairness, and practical problem solving to use! The Biden Administration might not be paying attention. But, many others, including Article III Judges, are taking advantage and listening.
DUE PROCESS DOESN’T LIVE HERE ANY MORE: WEAPONIZED IMMIGRATION COURTS ARE AMERICA’S STAR CHAMBERS
By
Paul Wickham Schmidt
Retired U.S. Immigration Judge
“Immigration 101”
Renaissance Institute
Notre Dame University of Maryland in Baltimore
April 18, 2023
I. INTRODUCTION
Good morning. Thank you so much for inviting me, and for coming out on this beautiful Spring day. It’s an honor to be here.
Today, I’m going to tell you the sad story of how our Immigration Courts, housed in an agency called the Executive Office for Immigration Review (acronym “EOIR” for you “Winnie The Pooh” fans) within the U.S. Department of Justice, went from being the “Jewel in the Crown” to becoming “America’s Star Chambers,” where due process and human dignity are trampled daily. I will intertwine EOIR’s saga with my own career. Because, in many ways, my history and EOIR’s are the same. But, there’s a larger story in here that I hope you will pick up and that will tie together much of what you will learn in class.
Now, this is when I used to give my comprehensive disclaimer providing “plausible deniability” for everyone in the Immigration Court System if I happened to say anything inconvenient or controversial. But, now that I’m retired, we can skip that part.
However, I do want to hold Professor Rabben, the Renaissance Institute, the University, your faculty, trustees, you, and anybody else of any importance whatsoever “harmless” for my remarks which are solely my own views. No party line, no bureaucratic doublespeak, no sugar coating, no BS. Just the truth, the whole truth, and nothing but the truth, as I see and have lived it for five decades.
Also, because today is Tuesday, and you are such a great audience, I’m giving you my famous, industry-best, absolute, unconditional, money-back guarantee that this talk will be completely free from computer-generated slides, power points, or any other type of distracting modern technology that might interfere with your total comprehension or listening enjoyment. In other words, I am your “power point.”
II. CAREER SUMMARY
I graduated in 1970 from Lawrence University a small liberal arts college in Appleton, Wisconsin, where I majored in history. My broad liberal arts education and the intensive writing and intellectual dialogue involved were the best possible preparation for all that followed.
I then attended the University of Wisconsin School of Law in Madison, Wisconsin, graduating in 1973. Go Badgers!
I began my legal career in 1973 as an Attorney Advisor at the Board of Immigration Appeals (“BIA”) at the U.S. Department of Justice (“DOJ”) under the Attorney General’s Honors Program. Admittedly, however, the BIA’s Executive Assistant culled my resume from the “Honors Program reject pile.”
At that time, before the creation of the Executive Office for Immigration Review – “EOIR” — the Board had only five members and nine staff attorneys, as compared to today’s cast of thousands. Among other things, I worked on the famous, or infamous, John Lennon case, which eventually was reversed by the Second Circuit Court of Appeals.[1]
The Chairman of the BIA at that time was the legendary “immigration guru” Maurice A. “Maury” Roberts. Chairman Roberts took me under this wing and shared his love of immigration law, his focus on sound scholarship, his affinity for clear, effective legal writing, and his humane sense of fairness and justice for the individuals coming before the BIA. A sense, I might add, that is conspicuously absent from today’s EOIR.
In 1976, I moved to the Office of General Counsel at the “Legacy” Immigration and Naturalization Service (“INS”). There, I worked for another legendary figure in immigration law, then General Counsel Sam Bernsen. Sam was a first-generation immigrant who started his career as a 17-year-old messenger at Ellis Island and worked his way to the top of the Civil Service ranks. Perhaps not incidentally, he was also a good friend of Chairman Roberts.
At that time, the Office of General Counsel was very small, with a staff of only three attorneys in addition to the General Counsel and his Deputy, another mentor and immigration guru, Ralph Farb. At one time, all three of us on the staff sat in the same office!
In 1978, Ralph was appointed to the BIA, and I succeeded him as Deputy General Counsel. I also served as the Acting General Counsel for several very lengthy periods in both the Carter and Reagan Administrations.
Not long after I arrived, the General Counsel position became political. The incoming Carter Administration encouraged Sam to retire, and he went on to become a name and Managing Partner of the Washington, D.C. office of the powerhouse immigration boutique Fragomen, Del Rey, and Bernsen. He was replaced by my good friend and former colleague, the late Judge David Crosland, who selected me as his Deputy. Dave was also the Acting Commissioner of Immigration during the second half of the Carter Administration, one of the periods when I was the Acting General Counsel.
The third General Counsel that I served under, during the Reagan Administration, was one of my most “unforgettable characters:” the late, great Maurice C. “Mike” Inman, Jr. He was known, not always affectionately, as “Iron Mike.” His management style was something of a cross between the famous coach of the Green Bay Packers, Vince Lombardi, and the fictional Mafia chieftain, Don Corleone.
Although we were totally different personalities, Mike and I made a good team, and we accomplished amazing things. It was more or less a “good cop, bad cop” routine, and I’ll let you guess who played which role.
Among other things, I worked on the Iranian Hostage Crisis, the Cuban Boatlift, the Refugee Act of 1980, the Immigration Reform and Control Act of 1986 (“IRCA”), the creation of the Office of Immigration Litigation (“OIL”), and establishing what has evolved into the modern Chief Counsel system at Department of Homeland Security (“DHS”).
I also worked on the creation of EOIR in 1983, which combined the Immigration Courts, which had previously been part of the INS, with the BIA to improve judicial independence. Interestingly, and perhaps ironically, the leadership and impetus for getting the Immigration Judges into a separate organization came from Mike and the late Al Nelson, who was then the Commissioner of Immigration. Prosecutors by position and litigators by trade, they saw the inherent conflicts and overall undesirability, from a due process and credibility standpoint, of having immigration enforcement and impartial court adjudication in the same division.
I find it disturbing that officials at today’s DOJ have actually recreated and aggravated many of the problems and glaring conflicts of interest that EOIR originally was created to overcome. Indeed, as I will discuss later, they have allowed the Immigration Courts to become “weaponized” as a tool of immigration enforcement.
For example, former Attorney General Jeff Sessions unethically and improperly referred to supposedly fair and impartial Immigration Judges as “in partnership” with DHS enforcement. A.G. Garland has done little to dispel this notion.
By the time I left in 1987, the General Counsel’s Office, largely as a result of the enactment of IRCA and new employer sanctions provisions, had dozens of attorneys, organized into divisions, and approximately 600 attorneys in the field program, the vast majority of whom had been hired during my tenure.
In 1987, I resigned from INS and joined Jones Day’s DC Office, a job that I got largely because of my wife Cathy and her “old girl network.” I eventually became a partner specializing in business immigration, multinational executives, and religious workers. Among my major legislative projects on behalf of our clients were the special religious worker provisions added to the law by the Immigration Act of 1990 and the “Special Immigrant Juvenile” provisions of the INA.
Following my time at Jones Day, I succeeded my former boss and mentor Sam Bernsen as the Managing Partner of the DC Office of Fragomen, Del Rey & Bernsen, the leading national immigration boutique, where I continued to concentrate on business immigration. Immigration is a small community; you need to be nice to everyone because you keep running into the same folks over and over again in your career. While at Fragomen, I also assisted the American Immigration Lawyers Association (“AILA”) on a number of projects and was an asylum adviser to the Lawyers’ Committee on Human Rights, now known as Human Rights First.
In 1995, then Attorney General Janet Reno appointed me Chairman of the BIA. Not surprisingly, the late Janet Reno was my favorite among all of the Attorneys General I worked under. I felt that she supported me personally, and she supported the concept of an independent judiciary, even though she didn’t always agree with our decisions and vice versa.
She was the only Attorney General who consistently came to our Investitures and Immigration Judge Conferences in person and mixed and mingled with the group. She had a saying “equal justice for all” that she worked into almost all of her speeches, and which I found quite inspirational.
She was also hands-down the funniest former Attorney General to appear on “Saturday Night Live,” doing her famous “Janet Reno Dance Party” routine with Will Farrell immediately following the end of her lengthy tenure at the DOJ. Can you imagine Jeff Sessions, Bill Barr, or Merrick Garland making live appearances on SNL, and laughing at themselves. Not likely!
Among other things, as Chair, I oversaw an expansion of the Board from the historical five members to more than 20 members, a more open selection system that gave some outside experts a chance to serve as appellate judges on the Board, the creation of a supervisory structure for the expanding staff, the establishment of a unified Clerk’s Office to process appeals, implementation of a true judicial format for published opinions, institution of bar coding for the tens of thousands of files, the establishment of a pro bono program to assist unrepresented respondents on appeal, the founding of the Virtual Law Library, electronic en banc voting and e-distribution of decisions to Immigration Judges, and the publication of the first BIA Practice Manual, which actually won a “Plain Language Award” from then Vice President Gore.
I also wrote the majority opinion in my favorite case, Matter of Kasinga, establishing for the first time that the practice of female genital mutilation (“FGM”) is “persecution” for asylum purposes.[2] The “losing” attorney in that case was none other than my good friend, then INS General Counsel David A. Martin, a famous emeritus immigration professor at University of Virginia Law, who personally argued before the Board.
In reality, however, by nominally “losing” the case, David actually won the war for both of us, and more important, for the cause of suffering women throughout the world. We really were on the same side in Kasinga — the side of protecting vulnerable women.
During my tenure as Chairman, then Chief Immigration Judge (now BIA Judge) Michael J. Creppy and I were founding members of the International Association of Refugee Law Judges (“IARLJ”). This organization, today headquartered in The Hague, promotes open dialogue and exchange of information among judges from many different countries adjudicating claims under the Geneva Convention on Refugees.
In 2001, under pressure from the incoming Bush Administration and new Attorney General John
Ashcroft, I stepped down as BIA Chairman, but remained as a Board Member until April 2003. At that time, Ashcroft, who was not a fan of my opinions, invited me to vacate the Board and finish my career at the Arlington Immigration Court, where I remained until my retirement on June 30, 2016.
So, I’m one of the few ever to become an Immigration Judge without applying for the job. Or, maybe my opinions, particularly the dissents, were my application and I just didn’t recognize it at the time. But, it turned out to be a great fit, and I truly enjoyed my time at the Arlington Court.
I have also taught at George Mason School of Law and at Georgetown Law where I am still an Adjunct Professor.
As a sitting judge, I encouraged meticulous preparation and advance consultation with the DHS Assistant Chief Counsel to stipulate or otherwise narrow issues. There currently are approximately two million pending cases in Immigration Court, a backlog that grows every day. Because of this overwhelming workload, efficiency and focusing on the disputed issues in court are particularly critical.
III. THE DUE PROCESS VISION
Now, let’s move on to the other topics: First, vision. The “EOIR Vision” once was: “Through teamwork and innovation, be the world’s best administrative tribunals, guaranteeing fairness and due process for all.” In one of my prior incarnations, I was part of the group that developed that now abandoned and disrespected vision statement. Perhaps not surprisingly given the timing, that vision echoed the late Janet Reno’s “equal justice for all” theme.
Sadly, the Immigration Court System has moved ever further away from that due process vision. Instead, years of neglect, misunderstanding, mismanagement, and misguided priorities imposed by the U.S. Department of Justice have created judicial chaos with an expanding backlog now at an astounding two million cases, continuing to grow, with no clear plan for resolving them in the foreseeable future. Indeed, former AG Sessions actually maliciously and intentionally tried to add a potential 300,000 previously closed cases to those already on the active docket.
There are now more pending cases in Immigration Court than in the entire U.S. District Court System. Notwithstanding the hiring of hundreds of new judges by the past two Administrations, most in the Trump Administration from the ranks of Government prosecutors, the backlog continues to grow by leaps and bounds.
The Government has added hundreds of thousands, of new cases to the Immigration Court docket, again without any transparent plan for completing those already pending cases consistent with due process and fairness. They have done this despite efforts by the Biden Administration to re-establish sensible enforcement priorities and prosecutorial discretion that were trashed by the Trump Administration.
Even under Attorney General Garland, inexcusably, the “flavor of the day” is haphazardly advanced before pending cases which, in turn, are “orbited” to the end of the years long line. This results in what I call “Aimless Docket Reshuffling” or “ADR, EOIR-style.”
Notably, and most troubling, the only things that aren’t “priorities” for any Administration are fairness and due process in the immigration hearing process which have clearly been “thrown from the train” as the deportation express hurtles down the track. The Due Process Clause of the U.S. Constitution – has become “the enemy” in today’s disgracefully dysfunctional Immigration Courts.
Nobody has been hit harder by this preventable disaster than asylum seekers, particularly scared women and children fleeing for their lives from the Northern Triangle of Central America. In Immigration Court, notwithstanding the life-or-death issues at stake, unlike criminal court there is no right to an appointed lawyer.
Individuals who can’t afford a lawyer must rely on practicing lawyers who donate their time or on nonprofit community organizations to find free or low-cost legal representation. Although the Government stubbornly resists the notion that all asylum seekers should be represented, studies show that represented asylum seekers are at least five times more likely to succeed than those who must represent themselves. For recently arrived women with children, the success differential is an astounding fourteen times![3]
Although the Biden Administration promised to do better, they actually are using somewhat improved technology to make matters worse for lawyers, mindlessly overbooking cases without advance consultation with counsel — sometimes simultaneously scheduling cases for the same attorney in different cities at the same time.
An Assistant Chief Judge for Training in the Obama Administration infamously claimed that he could teach immigration law to unrepresented toddlers appearing in Immigration Court. Issues concerning representation of so-called “vulnerable populations” continue to haunt our Court System. Even with Clinics and Non-Governmental Organizations pitching in, there simply are not enough free or low-cost lawyers available to handle the overwhelming need.
To make matters worse, Administrations of both parties engage in a number of legally questionable and morally reprehensible “gimmicks” and “schemes” to keep asylum applicants at the Southern Border from getting fair hearings in Immigration Court.
Whether it’s “dedicated dockets,” Remain in Mexico, abusive use of Title 42, family detention, child separation, invented “bars” to asylum, or forcing applicants stranded in dangerous conditions in Mexico to use failing technology to schedule appointments, the objective is to prevent asylum applicants from receiving due process. Instead, they are often wrongfully “orbited” back to Mexico, Guatemala, Haiti, Honduras, and El Salvador.
These are among the world’s most dangerous countries, some basically without functional governing systems. Once there, many suffer kidnapping, extortion, rape, torture, and even death at the hands of the same forces from which they originally fled.
It’s a total and intentional perversion of asylum law and American values. Worst of all, complicit Article III Courts, all the way up to the Supreme Court, regularly “tank” in their duties to protect asylum applicants’ legal and constitutional rights. Instead, they “go along to get along” or pretend not to see or understand the grotesque human tragedy that they have enabled.
Customs and Border Protection officials brag about how limiting or eliminating asylum protections helps solve “the problem” and “reduce the numbers” at our Southern Border. In their view, refugees seeking legal protections under our laws and international conventions are a “problem” and human lives are merely “numbers” to be “reduced.”
It’s part of a concerted effort to “dehumanize the other” and convert them to “non-persons” under the law. I call this “Dred Scottification” after the infamous pre-Civil War Supreme Court case that declared that Blacks were not “persons” under our Constitution, although I hardly originated this term.
Notwithstanding today’s legal, Constitutional, and human rights disaster, I, for one, still believe that with proper enlightened leadership and some guts the “EOIR vision” could be fulfilled.
IV. THE ROLE OF THE IMMIGRATION JUDGE
Changing subjects, to the role of the Immigration Judge: What’s it like to be an Immigration Judge? As an Immigration Judge, I was an administrative judge. I was not part of the Judicial Branch established under Article III of the Constitution.
The Attorney General, part of the Executive Branch, appointed me, and my authority was subject to her regulations. I might add that I also served at her pleasure, something that GOP Administrations “get,” but ineffectual Democratic Administrations, not so much. And, that has lots to do with the abysmal state of justice in the Immigration Courts under Garland.
We should all be concerned that the U.S. Immigration Court system, between 2017 and 2021, was totally under the control of Attorneys General Jeff Sessions and Bill Barr, who consistently took negative views of immigrants, both legal and undocumented. Both failed to recognize the many essential, positive contributions that immigrants make to our country. They were also unfailingly biased against migrants in Immigration Court and their attorneys, in their negative and unethical “precedents,” and in prosecutor-friendly, immigration experience light, criteria for appointing new Immigration Judges and Appellate Judges at the BIA.
Indeed, in February 2020, a group of more than 2,500 former DOJ officials from Administrations of both parties, including me and many of my colleagues from the Round Table of Former Immigration Judges, took the extraordinary step of publicly calling on Barr to resign for corruption and compromising the independent role of the DOJ.[6] Among other things, we “strongly condemn[ed] President Trump’s and Attorney General Barr’s interference in the fair administration of justice.” Certainly, that was reflected in his mishandling of the Immigration Courts and “weaponizing” them against migrants and their lawyers
The late Judge Terence T. Evans of the Seventh Circuit Court of Appeals offered one of the best descriptions of what it’s like to be an Immigration Judge:
Because 100 percent of asylum petitioners want to stay in this country, but less than 100 percent are entitled to asylum, an immigration judge must be alert to the fact that some petitioners will embellish their claims to increase their chances of success. On the other hand, an immigration judge must be sensitive to the suffering and fears of petitioners who are genuinely entitled to asylum in this country. A healthy balance of sympathy and skepticism is a job requirement for a good immigration judge. Attaining that balance is what makes the job of an immigration judge, in my view, excruciatingly difficult.[5]
My good friend and colleague, Judge Dana Leigh Marks of the San Francisco Immigration Court, who is the past President of the National Association of Immigration Judges, offers a somewhat pithier description: “[I]mmigration judges often feel asylum hearings are ‘like holding death penalty cases in traffic court.’”[7]
An actual practitioner before today’s dysfunctional Immigration Courts was even blunter in an interview appearing in Mother Jones, one of my favorite scholarly publications: “An [expletive deleted] disaster that is designed to fail.”[7]
Certainly, balance, Due Process, and fundamental fairness have been sacrificed in today’s Immigration Courts in favor of expediency and “weaponizing” the Immigration Courts as tools of DHS enforcement. In other words, they are now structured to be little more than a whistle-stop on the deportation express as the complicit Article IIIs look on.
Barr even took the extreme, unethical, step of moving to “decertify” the Immigration Judges union, the National Association of Immigration Judges (“NAIJ”), of which, for full disclosure, I am a retired member. Actually, I believe my appearance here today was arranged through Linda contacting the NAIJ!
One of the keys to the Immigration Judge’s job is supposed to be issuing scholarly, practical, well-written opinions in the most difficult cases. That ties directly into the job of the Immigration Court’s Judicial Law Clerks (“JLCs”) assisted by legal interns from local law schools. Obviously, however, quality and care took a back seat to “productivity” under the Trump Administration’s program of “dumbing down” the Immigration Courts — not by any means effectively countermanded under Garland. Indeed, the already-strained ratio of Immigration Judges to judicial law clerks has gotten much worse over the past few years.
V. RECLAIMING THE VISION
Our Immigration Courts are going through an existential crisis that threatens the very foundations of our American Justice System. Earlier, I told you about my dismay that the noble due process vision of our Immigration Courts has been derailed and trashed. What can be done to re-establish it?
First, and foremost, the Immigration Courts must return to the focus on due process as the one and only mission. We must end the improper use of our due process court system by political officials to advance enforcement priorities and/or send “don’t come” messages to asylum seekers.
Ultimately, that will take an independent Article I Immigration Court, which has been supported by groups such as the ABA, the FBA, and the NAIJ, and was introduced in the last Congress by Subcommittee Chair Zoe Lofgren (D-CA).
Indeed, in February 2020, a hearing on “The State of Judicial Independence and Due Process in U.S. Immigration Courts” took place before Chair Lofgren’s Subcommittee on Immigration and Citizenship. Our 50+ strong “Round Table of Former Immigration Judges” filed a written statement in support of Due Process and creation of an independent, Article I Court.
You can find it on my blog “Immigrationcourtside.com,” which, of course, I highly recommend for anyone trying to understand what’s really happening in immigration these days.[8] We also joined 53 other distinguished organizations and NGOs in writing to Congress urging them to establish an independent Immigration Court.[9]
But, Article I is still a future dream. In the meantime, there is no excuse for Garland’s failure to make needed personnel, structural, and “cultural” changes at EOIR to restore due process.
Second, there must be radical structural changes so that the Immigration Courts are organized and run like a real court system, not a highly bureaucratic, headquarters bloated, enforcement agency. This means that sitting Immigration Judges, like in all other court systems, must control their dockets.
We must end the practice of having often clueless administrators in Falls Church and political bureaucrats in Washington, D.C., none of whom are sitting judges responsible for daily court hearings, manipulate and rearrange local dockets in an attempt to achieve policy goals unrelated to fairness and due process for individuals coming before the Immigration Courts.
Additionally, the judicial hiring process over the past 22 years has failed to produce the necessary balance because judicial selectees from private sector backgrounds – particularly those with expertise in asylum and refugee law –have been so few and far between. Indeed, during the Obama Administration nearly 90% of the judicial appointments were from Government backgrounds.
In the Trump Administration, nearly 100% of judicial appointments by Attorney General Barr came from prosecutorial or other public sector backgrounds. A number of these conspicuously lacked expertise in immigration and human rights laws!
Garland has done better in bringing in expert practical scholars and even getting rid of a few of the most horribly unqualified judges. But, in an out-of-control system with more than 600 judges, and growing, it’s going to take more than this “nibbling around the edges” to restore due process.
Third, there must be a new administrative organization to serve the courts, much like the Administrative Office of the U.S. Courts. Currently, the unwieldy hiring process, inadequate courtroom space planning and acquisition, and unreliable, often-outdated technology are simply not up to the needs of a rapidly expanding court system.
EOIR basically has “institutionalized worst practices.” This includes limiting legitimate continuances and placing judges under “performance plans” designed to hustle cases through the system, with insufficient quality control, while producing “assembly line injustice.”
Fourth, I would repeal all of the so-called “Ashcroft & Barr reforms” at the BIA and put the BIA back on track to being a real appellate court, as the “Appellate Division” of a new independent Immigration Court. A properly comprised and well-functioning Appellate Division should transparently debate and decide important, potentially controversial, issues, publishing dissenting opinions when appropriate.
All Appellate Judges should be required to vote and take a public position on all important precedent decisions. The Appellate Division must also “rein in,” rather than encourage and enable, those Immigration Courts with asylum grant rates so incredibly low as to make it clear that the generous dictates of the Supreme Court in Cardoza-Fonseca[9] and the BIA itself in Mogharrabi[10] are not being followed.
Well over a decade has passed since Professors Andy Schoenholtz, Phil Shrag, and Jaya Ramji-Nogales published their seminal work Refugee Roulette, documenting the large disparities among Immigration Judges in asylum grant rates.[11] The BIA, the only body that can effectively establish and enforce due process within the Immigration Court system, has not adequately addressed this situation.
Indeed, among the still-serving Barr appointments to the BIA are Immigration Judges who deny asylum nearly 100% of the time and are the subject of complaints from the private bar and NGOs about bias, rudeness, and other unprofessional behavior. In other words, Barr implemented “worst practices and policies” at the BIA and in the Immigration Courts in an attempt to “snuff out” every remnant of fundamental fairness and due process for migrants. He and Sessions particularly targeted the most vulnerable asylum seekers and their families for unfair treatment.
Inexplicably, and outrageously, Garland has failed to “clean house” and bring in the necessary qualified experts to reshape the Immigration Courts in a due process image. In particular, Trump holdovers contain due to dominate the BIA and turn out lousy, anti-immigrant, anti-due process decisions, many of which are slammed by the Circuit Courts on review.
This is hardly “through teamwork and innovation being the world’s best administrative tribunals guaranteeing fairness and due process for all!” The sharp drop-off in Immigration Court asylum grant rates during the Trump Administration was impossible to justify in light of the generous standard for well-founded fear established by the Supreme Court in Cardoza-Fonseca and the BIA in Mogharrabi, the regulatory presumption of future fear arising out of past persecution that applies in many asylum cases,[14] and the simple fact that there has been no worldwide diminution in the conditions causing refugees to flee. Indeed, they have gotten worse, in many cases.
The BIA’s chronic inability or unwillingness to aggressively stand up for the due process rights of asylum seekers and to enforce the fair and generous standards required by American law have robbed our Immigration Court System of credibility and public support, as well as ruined the lives of many who were denied protection that should have been granted. We need an Appellate Division that functions like a Federal Appellate Court and whose overriding mission is to ensure that the due process vision of the Immigration Courts becomes a reality rather than a cruel, intentionally unfulfilled promise.
Fifth, and finally, the Immigration Courts need better public service now! Without it, the courts are condemned to “files in the aisles,” misplaced filings, lost exhibits, and exorbitant courier charges. The public receives a level of service disturbingly below that of any other major court system.
That gives the Immigration Courts an “amateur night at the Bijou” aura totally inconsistent with the dignity of the process and the critical importance of the mission. Yet, after two decades of largely wasted effort, EOIR has failed to produce and implement a coherent, professional, user friendly court management system.
VI. GETTING INVOLVED
Bleak as this picture is, there is some good news. There are hundreds of dedicated and courageous lawyers out there who are former JLCs, interns, my former students, and those who have practiced before the Immigration Courts.
They form the nucleus what I call the “New Due Process Army!” You can be members, and I hope you will.
Thanks to an innovative new online program called VIISTA Villanova, developed by my friend Professor Michele Pistone, retirees who are not lawyers can train to become accredited representatives of recognized nonprofit organizations and actually represent asylum seekers in Immigration Court. Check it out on the internet.
VII. CONCLUSION
In conclusion, in the process of describing my career, I have introduced you to one of America’s largest and most important, yet least understood and appreciated, court systems: The United States Immigration Court. Right now, it is, inexcusably, clearly and beyond any reasonable doubt America’s worst and most dysfunctional court system.
I have shared with you that court’s once-noble due process vision and how it has been viciously and cruelly trampled, first to advance a xenophobic, White Nationalist Qrestrictionist agenda and then because Garland has failed to do his duty.
I have also shared with you my ideas for effective court reform that would restore and elevate the due process vision.
My friends, both our Immigration Courts and our democratic republic are in a grave existential crisis. There are powerful and well-organized forces with a very dark, exclusive vision of America’s future: one that reverses generations of human progress and knowledge and actively promotes intolerance, misinformation, dehumanization, and deconstruction of our democratic institutions and fundamental human values.
It’s an intentionally “whitewashed” version of American history. One that denies the ingenuity, creativity, and forced labor of generations of African Americans who literally built our country! It disregards the courage, tenacity, skill, and strength of Asian Americans who built our Transcontinental Railroad and literally brought our nation together. And, of course, it dismisses the legions of Hispanic Americans who have been “making America great” since before “America was America,” with their culture, hard work, determination, and commitment to the “real” American dream, not the “whitewashed” version.
The future envisioned by these dark forces “x’es out” some of you in this room. Don’t let their darkness and willful ignorance be your future and that of generations to come.
Look around you at the real history and the real America. The future is ours! Don’t let the forces of darkness and a “past that never was” deny our destiny!
Now is the time to take a stand for Due Process, fundamental fairness, human rights, human dignity, and human decency! Join the New Due Process Army and fight to make equal justice under law and the constitutional and human rights of everyone a reality rather than an unfulfilled promise! Due process forever!
Thanks again for inviting me and for listening.
(04/19/23)
[1] Matter of Lennon, 15 I&N Dec. 9 (BIA 1974), rev’d Lennon v. INS, 527 F.2d 187 (2d Cir. 1975).
[2] Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996).
[4] “Immigration Director Calls for Overhaul of Broken System,” NBC Bay Area News, May 27, 2015, available online.
[5] Guchshenkov v. Ashcroft, 366 F.3d 554 (7th Cir. 2004) (Evans, J., concurring). [6] Hon. Thomas G. Snow, “The gut-wrenching life of an immigration judge,” USA Today, Dec. 12, 2106, available online at http://www.usatoday.com/story/opinion/2016/12/12/immigration-judge-gut-wrenching-decisions-column/95308118/
[7] Julia Preston, “Lawyers Back Creating New Immigration Courts,” NY Times, Feb. 6, 2010.
[15] See, e.g., Matter of Y-S-L-C-, 26 I&N Dec. 688 (BIA 2015) (denial of due process where IJ tried to bar the testimony of minor respondent by disqualifying him as an expert witness under the Federal Rules of Evidence). While the BIA finally stepped in with this precedent, the behavior of this Judge shows a system where some Judges have abandoned any discernable concept of “guaranteeing fairness and due process.” The BIA’s “permissive” attitude toward Judges who consistently deny nearly all asylum applications has allowed this to happen. Indeed the Washington Post recently carried a poignant story of a young immigration lawyer who was driven out of the practice by the negative attitudes and treatment by the Immigration Judges at the Atlanta Immigration Court. Harlan, Chico, “In an Immigration Court that nearly always says no, a lawyer’s spirit is broken,” Washington Post, Oct. 11, 2016, available online at https://www.washingtonpost.com/business/economy/in-an-immigration-court-that-nearly-always-says-no-a-lawyers-spirit-is-broken/2016/10/11/05f43a8e-8eee-11e6-a6a3-d50061aa9fae_story.html
How does this live up to the EOIR Vision of “through teamwork and innovation being the world’s best administrative tribunals guaranteeing fairness and due process for all?” Does this represent the best that American justice has to offer?
We need to keep challenging this mockery of justice from all angles until the system changes! Keep raising the EOIR farce with Dems at all levels — let them know that due process at EOIR is a “front burner” issue they can’t keep sweeping under the rug!
Help groups that are assisting individuals stuck in this bureaucratically-created “Hell on Earth.” The EOIR system “feeds” on (picks on) the unrepresented, uninformed, traumatized, and desperate! Help people get effective representation, win cases, save their lives, and bring systemic attention to the gross injustices being inflicted on a daily basis by this dysfunctional system!
The “powers that be” at DOJ and the White House have little interest in leading and institutionalizing due process and excellence in judging at EOIR. But, neither are they positioned to prevent it from taking hold and growing on its own. That’s particularly true because Immigration Judges with practical expertise, courtroom skills, and a commitment to enforcing and vindicating individual rights ultimately “move” dockets more efficiently, motivate others to work together toward the ends of justice, and create fewer problems and embarrassments.
Even the BIA can’t screw up cases they don’t get! At some point, even inept and largely tone-deaf Dem politicos and their bureaucratic minions start “warming” to proven solutions rather than recreating failures and flailing away with bone-headed “deterrence” gimmicks.
The BIA might eschew precedents favorable to individuals. But, thanks to litigation against EOIR by the NY Legal Assistance Group, unpublished decisions are more widely available now on the internet. Even at the IJ level, advocacy organizations have established online networks and banks of good decisions by Immigration Judges granting relief.
These recognize and credit outstanding, exemplary, courageous judicial performance in a way that EOIR never does. Perhaps more importantly, these “unheralded victories” provide “road maps” and inspire others! Also, every concrete example of how good judging and good lawyering, on both sides, can work at EOIR serves as a condemnation and rebuke of the Administration’s lack of concern about due process, fundamental fairness, and best practices at EOIR.
While the picture is undoubtedly ugly, we must keep “painting it” — with vivid colors — until complacent folks in the power structure (particularly tone-deaf Dems) can no longer look away, cover their eyes and ears, and deny the truth about the “third world” system they are disingenuously passing off as American “justice.”
The message is straightforward: Due process, fundamental fairness, and best practices work! For everyone! It’s past time for Garland and the rest of this Administration to “get their collective heads out of the sand” and start heeding and acting decisively on that truth!
Bury your head in the sand Sander van der Wel from Netherlands Creative Commons Attribution-Share Alike 2.0 It’s way past time for AG Merrick Garland and Biden politicos to change this highly ineffective approach to the EOIR due process disaster!
Holy card ( 1899 ) showing an illustration to the Gospel of Matthew 25, 34-36 – rear side of an obituary. Wolfgang Sauber Creative Commons Attribution-Share Alike 4.0
MATTHEW AT THE BORDER: ACTING ON THE MESSAGE OF CHAPTER 25
By Paul Wickham Schmidt
U.S. Immigration Judge (Retired)
Westminster Presbyterian Men’s Breakfast
April 14, 2023
I. INTRODUCTION: THE MESSAGE OF MATTHEW 25
Welcome. Thank you for inviting me and for coming out this morning.
Of course, I want to hold my friend and fellow “Badger” Dudley, the Men’s Group, honored guests, and anybody else of any importance whatsoever harmless for my remarks this morning. While I have borrowed liberally from the ideas and inspirations of others, I take sole responsibility for the views expressed in my presentation.
I don’t usually start my talks with a Biblical quote. But, since this is a church men’s breakfast, we are in the holy season, and my topic is integrally tied to Judeo-Christian values, I want to read from Matthew 25, verses 34-46:
34 Then the king will say to those at his right hand, “Come, you that are blessed by my Father, inherit the kingdom prepared for you from the foundation of the world;
35 for I was hungry and you gave me food, I was thirsty and you gave me something to drink, I was a stranger and you welcomed me,
36 I was naked and you gave me clothing, I was sick and you took care of me, I was in prison and you visited me.’
37 Then the righteous will answer him, “Lord, when was it that we saw you hungry and gave you food, or thirsty and gave you something to drink?
38 And when was it that we saw you a stranger and welcomed you, or naked and gave you clothing?
39 And when was it that we saw you sick or in prison and visited you?’
40 And the king will answer them, “Truly I tell you, just as you did it to one of the least of these who are members of my family, you did it to me.’
41 Then he will say to those at his left hand, “You that are accursed, depart from me into the eternal fire prepared for the devil and his angels;
42 for I was hungry and you gave me no food, I was thirsty and you gave me nothing to drink,
43 I was a stranger and you did not welcome me, naked and you did not give me clothing, sick and in prison and you did not visit me.’
44 Then they also will answer, “Lord, when was it that we saw you hungry or thirsty or a stranger or naked or sick or in prison, and did not take care of you?’
45 Then he will answer them, “Truly I tell you, just as you did not do it to one of the least of these, you did not do it to me.’
46 And these will go away into eternal punishment, but the righteous into eternal life.”
II. OVERVIEW
The last time I was with you, five years ago, I described the mess and rampant unfairness in our immigration system. I’d like to say that those times are behind us: That we have restored the rule of law, enhanced due process, and acted, as a nation, in a manner that showed adherence to those passages from Matthew.
But, unfortunately, I can’t do that. Not yet! Despite many promises to fix the mistakes of the past and to do better in the future, and a few successes, the current Administration has, in my view, disturbingly failed to deliver on our obligation to treat “the stranger” and “the other” — in other words, some of “the least of these” — fairly and with human dignity. Nowhere is this more harmful, discouraging, and threatening to both human life and our democracy than at our borders.
The most vulnerable among us, asylum seekers, who ask for little other than to be treated fairly and humanely under our laws, are still being victimized by dysfunctional bureaucracies more intent on deterring and rejecting than on protecting!
I’m going to tell you truths that some find uncomfortable; briefly summarize our current and proposed “built to fail system” at the borders; and tell your why it doesn’t have to be this way!
I’m going to share with you some ideas from legal and humanitarian experts on how our nation could do a far better job for ourselves and for refugees just by more creatively, boldly, and courageously exercising authorities under existing law. In other words how we as a nation could reflect on Jesus’s parable in Matthew and make it a reality.
III. UNCOMFORTABLE TRUTHS
Let me tell you a few truths that the “false prophets” find uncomfortable.
First, there is an internationally recognized right to seek asylum. Our law states that any person “who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including [someone] who is brought to the United States after having been interdicted in international or United States waters), irrespective of such [person’s] status, may apply for asylum.” [INA, 208(a)].
Second, according to the 5th Amendment to our Constitution, “no person . . . shall be . . .deprived of life, liberty, or property without due process of law.” Note that it says “person,” not citizen or “lawfully present non-citizen.”
Third, according to our Supreme Court, asylum laws are to be applied generously, so that even those with just a 10% chance of suffering persecution could qualify. [INS v. Cardoza-Fonseca]. In other words, according to the Board of Immigration Appeals, the highest administrative tribunal in immigration where I once served as an appellate judge and Chair, asylum can be granted “even where [the likelihood of persecution] is significantly less than clearly probable.”[Matter of Mogharrabi].
Additionally, the Handbook of the United Nations, whose Refugee Convention we adopted and which forms the basis for our refugee and asylum laws, says that because of the traumatic situation of refugees and the understandable difficulty they have in gathering and presenting “evidence,” refugees and asylum seekers should be given “the benefit of the doubt” in adjudications.
Fourth, by definition, refugee situations are driven by a variety of life-threatening forces occurring in sending countries, most of them outside our immediate control. Therefore, attempts to use harsh applications of our laws, intentionally “user-unfriendly” procedures, and punishment such as prosecution, imprisonment in life-threatening conditions, and even family separation as “deterrents” are ultimately doomed to failure. I’ve personally watched this “play out” during my five decade career in immigration.
Friends, human migration is a reality as old as humanity itself. It existed long before the evolution of the “nation state” and will continue as long as there is human life on this earth.
Consequently, the idea of some that we can unilaterally cut off or end human migration solely by our own cruel, repressive, and unfair actions is absurd. As I always say, “We can diminish ourselves as a nation, but that won’t stop human migration.”
Fifth, America needs immigrants. Refugees and asylees are part of our legal immigration system. They should be treated as such and welcomed, rather than being dehumanized and viewed as a “loophole,” a “threat,” or“invaders.”
Unhappily, in my view, most of our past and current policies toward refugees and asylum seekers run afoul of these fundamental truths. Worse still, legislators, policy makers from both parties, and even Federal Judges have been willing to run roughshod over these fundamental principles when they believe it is personally, politically, financially, or even professionally expedient.
IV.CURRENT BORDER POLICIES
Currently, our border asylum policies, largely “holdovers” from the Trump Administration, are overwhelmingly weighted toward improper, and ultimately futile, “deterrence.” This reflects deeply imbedded nativist, often racist, views by those holding power.
Our Government currently claims that our border is “closed” to legal asylum seekers, as it has been since March 2020. Under a vestige of Trump-era policy, known as Title 42, the legal processing of asylum applicants and their admission has been suspended based on a transparently pretextual, manufactured claim of necessity to protect America from COVID.
This allows many individuals to be excluded from the U.S. without any legal process and without having a chance to make a claim for asylum or other legal protection. Others are allowed to come into the U.S. under highly discretionary — most would say arbitrary — opaque “exceptions” to Title 42 that are within the sole discretion or DHS officials without any meaningful review.
The result is a mess. Some refugees are returned to Mexico or their home countries where they are subject to abuse, extortion,exploitation, crime, torture, and sometimes death.
Others, who might or might not be refugees, are allowed into the U.S., often with inadequate screening and without clear instructions as to what they are to do next. Because the Biden Administration didn’t establish any uniform nationwide resettlement system for those allowed in, they have been subject to cruel political stunts.
One of the most well-publicized of these has been the so-called “voluntary relocation” of individuals from the border by the governors of Texas, Florida, and, until the recent election, Arizona. They are sent by these governors, without coordination or notice, to supposedly “liberal” cities such as New York, Chicago, Denver, and Washington, D.C., in the calculated hopes of overwhelming community nonprofit organizations, creating chaos, and thereby causing a “backlash” against asylum seekers and the Administration.
V. BIDEN’S LARGELY MISGUIDED PROPOSALS
The Biden Administration has made some rather halfhearted efforts to end Title 42. To date, these have been blocked by right-wing Federal Judges, mostly Trump appointees.
But, it now appears that with the overall “COVID emergency” ended by President Biden, Title 42 will also end on May 11, barring further obstructionist litigation.
Many of us had hoped that after more than two-years to work on regularizing and normalizing asylum processing, the Biden Administration would have a “ready to implement” plan for restoring order, fundamental fairness, and due process to asylum adjudication.
But, sadly, this is not the case. The Biden Administration has actually proposed what many of us consider to be “gimmick regulations” to take effect upon the expiration of Title 42. These proposals actually build upon, and in some cases expand, unfair, restrictive, ineffective policies used by the Trump Administration to “deter” asylum seekers.
Obviously, many experts have opposed these measures. A group of which I am a member, the Round Table of Former Immigration Judges, filed an official comment in opposition to these proposals.
In it, we stated:
[T]he proposed rule exceeds the agencies’ authority by seeking to create a ban on asylum that contradicts Congressional intent and international law. As former Immigration Judges, we can confidently predict that the rule would result in individuals being erroneously deported even where they face a genuine threat of persecution or torture. We urge that the rule be withdrawn in its entirety.
Notably, approximately 33,000 individuals and organizations joined us in submitting comments in opposition to these regulations. Among these is the union representing the DHS Asylum Officers who claim, with justification, that applying these proposed provisions would require them to violate their oath to uphold the law.
At the heart of the Administration’s proposed changes is a new bar for those who apply for asylum other than at a port of entry and who can’t show that they have applied and been denied asylum in a country they “transited” on the way to the U.S.
Absurdly, this includes some of the most dangerous countries in the world, without well-functioning, fair asylum systems: Mexico, Honduras, Guatemala, El Salvador, Nicaragua, Colombia, being among those often transited.
This is also a rather obvious contradiction of the statutory command I read earlier that individuals can apply for asylum regardless of whether they arrive at a port of entry.
While there are some “emergency exceptions” to these new bars, they are narrow and will be almost impossible for individuals who have made the long, difficult, and dangerous journey to establish.
The proposal also improperly raises the statutory standards for preliminary screening of these individuals by Asylum Officers from “credible fear” to “reasonable fear.” This improperly weaponizes “gatekeepers” to block access to the asylum adjudication system.
Another “centerpiece” of the proposal is to require all asylum applicants arriving at ports of entry to schedule in advance an appointment for asylum screening using a new app called “CBP One.” Unfortunately, according to those actually at the border with asylum seekers, CBP One is “not quite ready for prime time.” It’s plagued by technical glitches, including disconnection, inability to schedule appointments for all family members, failure of the “facial recognition” software with some ethnic groups, and issues of usable wi-fi in Mexico and cell phone access among some applicants.
As Senator Cory Booker (D) of New Jersey stated following a recent trip to the border:
“Even if the CBP One app [were] as efficient, user friendly, fair, and inclusive as possible – which I hope one day it will be – it would still be inherently discriminatory.”
Additionally, the “appointments” currently available for asylum seekers are woefully inadequate and often are exhausted shortly after being posted, leaving legal asylum seekers frustrated and stranded in deplorable conditions near the Mexican border.
The Administration has recognized the need to encourage applications for refugee status in or near the countries from which refugees flee. But, instead of providing for more robust refugee admissions, the Administration has circumvented existing refugee laws by creating “special programs” for nationals of five countries to apply for temporary “parole into the U.S.”
This process is restricted to only five countries: Venezuela, Nicaragua, Haiti, Cuba, and Ukraine. The numbers of paroles are limited, and the criteria do not necessarily relate to refugee qualifications, relying heavily on the ability to obtain a U.S. sponsor in advance.
While this undoubtedly benefits some nationals of these countries, it does not prioritize refugees and it contains numerical limitations that do not apply to those seeking asylum. The arbitrary, highly discretionary nature of the parole determinations is combined with the lack of any statutory mechanism for conferring green cards upon the expiration of parole. This “limbo” situation recreates many of the ad hoc factors of parole programs prior to the Refugee Act of 1980 that Congress specifically intended to eliminate.
Another so-called “feature” of the proposed system being touted by the Administration is the negotiated ability to remove up to 30,000 non-Mexicans per month to Mexico. This is despite the well-publicized dangers awaiting them there, including the recent murders of American tourists and the “slow roasting” of 39 detained asylum seekers in a Mexican detention center fire.
The Biden Administration is also considering re-instituting so-called “family detention” and increased criminal prosecutions of those who cross the border illegally. These policies, also employed by the Trump Administration, have proved highly problematic in the past.
Then there is the mess in the individual asylum adjudication system that was weaponized and largely destroyed by the Trump Administration. Unqualified personnel, perceived to be committed to denying asylum above all else, were selected both at DHS and for Immigration Judge positions at the Immigration Courts, known as EOIR in the Department of Justice. Both the Asylum Office and EOIR are now incredibly backlogged.
As currently operated, the Immigration Courts feature a number of so-called “asylum free zones” where asylum is almost never granted by judges who are renowned for denying 90-100% of the asylum claims, far above the already grossly inflated “national average.”
Even when asylum is granted, it too often depends more upon the attitude and background of the individual Immigration Judge assigned than on the merits of the case. The U.S. Courts of Appeals regularly return cases to EOIR after pointing out very basic legal and factual errors committed by the latter in their undue haste to deny protection!
The current dysfunction at EOIR violates the commands of the law, that I read to your earlier, for due process, fairness, generosity, and applying the benefit of the doubt to asylum adjudications.
Indeed, attempting to avoid the Immigration Courts, now with an astounding 2 million backlog of pending cases, at least 800,000 of them involving asylum, appears to be one of the “drivers” of Biden Administration asylum policies. Unfortunately, in their two years in office, this Administration has done little to reform the Immigration Courts to improve expertise, efficiency, and due process and to repair the systemic damage done during the Trump Administration.
To add insult to injury, incredibly, the Biden Administration just “put on hold” one of the few potential improvements they had made to the asylum process: Allowing Asylum Officers to grant asylum to border applicants who pass credible fear. This would actually bypass the EOIR backlog without diminishing anyone’s due process rights. After pushing this change as potentially “transformational,” the Administration totally blew the implementation in a stunning show of ineptness and lack of basic preparation.
V. BETTER SOLUTIONS THROUGH EXISTING LAW
In my view, and that of other experts, we are once again heading for a systemic failure to do right by refugees and asylum seekers. The primary reason is that, in contravention of the law, the lessons of the Holocaust, which gave birth to the Refugee Convention, and the scriptures, we view refugees — “the stranger in need” — as “problems” or “statistics” to be “deterred,” “punished,” “discouraged,” and “denied.”
This is a wrong-headed — and fundamentally un-Christian — view. Refugees are fellow humans — like us — in need. They are legally entitled and deserving of our protection.
But, beyond that, they are an important source of legal immigration that our country was built upon and continues to need. Indeed most of the ancestors of those of us in this room probably came to this country fleeing or escaping something, regardless of whether or not it would have met today’s refugee definitions.
The border doesn’t have to be a source of disorder and embarrassment to our nation. There are better alternatives, even under existing law.
My experience tells me that if, instead of straining to improperly deter refugees, we use available tools to construct a fair, timely, generous, practical, expert, user-friendly legal system for refugees and asylees, the vast majority of them will use it. That will necessarily take pressure off the task of apprehending those seeking to evade the system.
What I’m going to share with you are ideas for progressive, humane, constructive improvements developed and advocated by many experts and NGOs. Certainly, these are not just my ideas.
First, we must maximize use of the existing provisions for legal screening and admission of refugees processed outside the United States. Currently, those programs are overly cumbersome and far too anemic with respect to the Western Hemisphere, particularly for countries in the Northern Triangle of Central America that are traditional “sending countries.”
Refugees screened and approved abroad arrive at our borders with documents and immediate work authorization. They are also able to bring family members and have a clear statutory path to obtaining green cards and eventually citizenship. These are important factors missing from the ad hoc parole programs instituted by this Administration.
Second, we need radical reforms of our Asylum Offices at USCIS and the Immigration Courts at EOIR. The “deadwood and nay sayers” who overpopulated these agencies during the Trump Administration must be weeded out and replaced with true subject matter experts in asylum, preferably with actual experience representing asylum seekers.
There are many asylum cases, both among arriving applicants, and languishing in the largely self-created backlogs, that could and should be prioritized and rapidly granted. Better trained and qualified Asylum Officers should be encouraged to grant asylum at or near the border whenever possible. That avoids the need to “refer” cases to the backlogged Immigration Courts.
Within EOIR, a great place to “leverage” reform would be at the BIA. That body was intentionally “packed” with some of the highest asylum-denying judges during the Trump Administration. Bringing in well-respected subject matter experts to set positive asylum precedents, establish and enforce best practices, and “ride herd” on the toxic “asylum free zones” and “deniers’ clubs” allowed to flourish among Immigration Courts would be a huge step forward.
And, for those who are found not to have a credible fear of persecution, after a fair screening system and fair rules administered by Asylum Officers who are experts, the law already provides for “summary expedited removal” without resort to full Immigration Court hearings, thus avoiding that backlogged system.
There is not, and has never been, a legitimate need to resort to Title 42 and other improper gimmicks, to deal with large migration situations. To the extent that one believes in the effectiveness of “deterrence” for those who do not have credible asylum claims, it’s built right into our existing law.
Third, the Administration should be working with the private bar, NGOs, states, and local governments to maximize access to pro bono or low bono asylum representation. Currently, far too many adjudications take place either in detention centers in intentionally obscure locations or at out of the way ports along the border.
Achieving representation needs to be a driving factor in establishing asylum processing. Indeed, studies have shown that representation not only dramatically improves results for asylum seekers but also virtually guarantees their appearance at all immigration hearings, without detention. It’s probably the biggest “bang for the buck” in asylum adjudication strategies.
The Government should also be working to encourage and, where possible, fund innovative programs like VIISTA Villanova that train non-attorneys to be “accredited representatives” for recognized non-profit organizations representing asylum seekers.
Fourth, rather than expensive and inhumane detention prisons, the Government should establish a network of “reception centers” near the border and throughout the country. These could provide safe, sanitary, residential housing, education, and even work opportunities while individuals are being timely and professionally processed for asylum. They also could be matched with legal staff.
These centers should be run by NGOs and other social service organizations with government funding. They would be a humane replacement for the privately run “detention centers” that have been the center of controversy and human rights abuses.
Fifth, the government should work with NGOs, charitable organizations, and regional economic consortiums to establish orderly, effective resettlement programs in the U.S. that would match those granted refugee or asylum status with housing and employment opportunities in areas of America where there skills can be best utilized.
Sixth, our government should continue to engage with the UN, other democratic nations, and economic development agencies to address the root causes of migration.
There are many other great ideas out here in the private sector that are being largely ignored by our Government. While nobody disputes the desirability of structural changes in our immigration laws, we could drastically improve and humanize our response to refugee situations just by more creative and robust application of already existing authorities and the expertise available in the U.S. humanitarian and NGO sectors.Approaching asylum as a humanitarian responsibility, rather than a law enforcement conundrum, is the key to escaping from the wilderness of failed “deterrence schemes” and creatinga better future for humanity.
VI. CONCLUSION
I can sum up by quoting one of the members of what I call the “New Due Process Army,” Amy R. Grenier. She said, very perceptively, that stripped of all of its legalistic complexities,“the concept of asylum is fairly simple. It’s the ability to ask for help and have someone listen to your story. And I think that that’s very easy to lose sight of.” I think that is also the message of the quote from Matthew 25 that I began with.
When we ignore these pleas for help from the most vulnerable and instead dehumanize, or as I sometimes say “Dred Scottify” them, we not only endanger their lives, but we also diminish our own humanity. I’ve never found anyone who wanted to be a refugee. And, but for the grace of God, any of us could be a refugee, at any time, often when you are least expecting it.
The problem with asylum at the border is not the law. It’s the lack of will, moral courage, vision, creativity, competence, and basic skills from those charged with implementing the law. In reality, there is plenty of flexibility in the existing law to encourage refugees to apply outside the U.S., to fairly, timely, and generously process those arriving at the border who invoke our laws, and to expeditiously remove those who don’t belong in the asylum system.
There is also plenty of legal authority to change inhumane and expensive “border jails” into “reception centers,” to increase the availability of pro bono representation, to resettle refugees and asylees in an orderly fashion, and to match the needs and skills of refugees and asylees with the needs of communities throughout the U.S.
The real issue is why is our Government wasting time and resources on cruel, legally questionable, ultimately ineffective “deterrence gimmicks” rather than solving problems, protecting the lives, and recognizing the humanity of those in need? Matthew knew what’s the right thing to do! Why don’t our elected leaders and the bureaucrats working for them?
I’ve shared with you some ideas for getting closer to “the vision of Matthew 25” in dealing with refugees and asylees. Of course, I haven’t solved the hard part — how to get the attention of politicians, legislators, bureaucrats, and judges who have largely “tuned out” the legal rights of refugees and other migrants and are all too prone to run from creative solutions, rather than embrace them.
But, hopefully, I have helped to install the first step: For all of us to recognize that contrary to what many say, we can do better for refugees and we should make doing so one of our highest national priorities. How we treat “the most vulnerable — the “least of those among us” — does affect everything else in our lives and our nation’s well-being!
We need to improve the informed dialogue, stand behind our values, and insist that those who govern us do likewise. Thank you and, as we say in the New Due Process Army, due process forever!
Trump Federal Judges Tilt Against Democracy Republished under license
Washington Post Columnist Ruth Marcus, moderates a panel discussion about chronic poverty with Education Secretary John B. King (blue tie) and Agriculture Secretary Tom Vilsack (striped tie), during the National Association of Counties (NACo), at the Washington Marriott Wardman Park, in Washington, DC, on Tuesday, Feb. 23, 2016. U.S. Department of Agriculture photo by Lance Cheung.
Congratulations are in order for Judge Matthew Kacsmaryk. The competition is fierce and will remain so, but for now he holds the title: worst federal judge in America.
Not simply for the poor quality of his judicial reasoning, although more, much more, on this in a bit. What really distinguishes Kacsmaryk is the loaded content of his rhetoric — not the language of a sober-minded, impartial jurist but of a zealot, committed more to promoting a cause than applying the law.
Kacsmaryk is the Texas-based judge handpicked by antiabortion advocates — he is the sole jurist who sits in the Amarillo division of the Northern District of Texas — to hear their challenge to the legality of abortion medication.
And so he did, ruling exactly as expected. In an opinion released Friday, Kacsmaryk invalidated the Food and Drug Administration’s 23-year-old approval of the abortion drug mifepristone and, for good measure, found that abortion medications cannot be sent by mail or other delivery service under the terms of an 1873 anti-vice law.
Even in states where abortion remains legal. Even though study after study has shown the drug to be safe and effective — far safer, for instance, than over-the-counter Tylenol. Even though — or perhaps precisely because — more than half of abortions in the United States today are performed with abortion medication.
My fury here is not because I fear that Kacsmaryk’s ruling will stand. I don’t think it will, not even with this Supreme Court. Indeed, another federal district judge — just hours after Kacsmaryk’s Good Friday ruling — issued a competing order, instructing the FDA to maintain the existing rules making mifepristone available. Even Kacsmaryk put his ruling on hold for a week; the Justice Department has already filed a notice of appeal; and the dispute is hurtling its way to the Supreme Court. (Nice work getting yourselves out of the business of deciding abortion cases, your honors.)
No, my beef is with ideologues in robes. That Kacsmaryk fits the description is no surprise. Before being nominated to the federal bench by President Donald Trump in 2017, Kacsmaryk served as deputy general counsel at the conservative First Liberty Institute. He argued against same-sex marriage, civil rights protections for gay and transgender individuals, the contraceptive mandate and, of course, Roe v. Wade.
. . . .
**********************
“Ideologues in robes!” That’s also a good description of many of the judges appointed by Sessions and Barr to the U.S. Immigration Courts. While there have been a few improvements in the appointment process, the Biden Administration has not effectively addressed the serious institutional dysfunction and anti-immigrant bias at EOIR.
And, let’s remember, EOIR is a “court system” affecting millions of lives and futures that is 100% controlled by the Administration. If this Administration is unwilling or unable to embrace and advance progressive values in a court system they own, how are they going to address other issues of justice, gender, and racial,equity in America?
Indeed, this tone-deaf Administration is now at war with more than 33,000 progressive groups and experts about their scofflaw “death to asylum seekers” regulations. The Administration’s immoral, impractical, and illegal proposal to send up to 30,000 legal asylum seekers to Mexico without due process or fair consideration of their claims for legal protection basically replicates, and in some ways goes even beyond, Kacsmaryk‘s endorsement of the discredited and proven to be deadly “Remain in Mexico” program instituted by Trump and Miller. See, e.g., https://immigrationcourtside.com/wp-admin/post.php?post=26734&action=edit.
Here two articles from Substack that sum up the GOP’s all-out assault on individual rights, freedom, and democracy — basically an assault on YOU and those YOU value as fellow human beings:
From Jay Kuo:
Jay Kuo American Author, Producer, CEO of The Social Edge PHOTO: Facebook
Remember folks, this began as an attack on immigrants and their rights. But, as those of us in the NDPA recognized and predicted, it didn’t end there!
It’s worthy of note that unqualified right-wing extremist hack Judge Matthew Kacsmaryk “honed” his misogynist attack on YOUR individual rights with a scurrilous attack on the rights and humanity of legal asylum seekers.
Dems failure to present a powerful, unified, well-organizeddefense of the human and legal rights of all people has helped fuel the dehumanization and“Dred Scottification” of almost all members of our society except a certain vocal and well-organized minority of far right White Nationalist extremists, their supporters, and their “fellow travelers!”
The answer:
Register to vote;
Speak out;
Vote every Republican out of office at every level of government!
As has been shown, YOU can’t rely on the Biden Administration and so-called “centrist Dems” to do this for YOU! They have shown a disturbing willingness to “sell out” individual groups — like asylum seekers, migrants, social justice advocates, and transgender youth — when they believe (even if wrongly) that it is politically expedient to do so!
YOU are going to have to use the democratic tools still available to control your own future and the destiny of generations to follow! YOU are getting a very graphic illustration of the “alternate future.” And, notably, it has no place for YOU and YOUR values!
🇺🇸 Due Process Forever! It’s more than a slogan — it’s a movement!
Dan Rather and Elliot Kirschner write on Substack:
A hallmark of great journalism is that it shines a bright light on information that is in the public’s interest but that powerful forces and actors desperately want to remain hidden.
A perfect example of this came today with a blockbuster investigative report from ProPublica about serious ethical questions concerning Supreme Court Justice Clarence Thomas.
In a thorough examination of Thomas’s two-decade relationship with billionaire and Republican megadonor Harlan Crow, reporters Joshua Kaplan, Justin Elliott, and Alex Mierjeski detail a series of trips gifted to Thomas and his wife, Ginni, that on the open market would likely have totaled hundreds of thousands of dollars.
None of these were disclosed by Thomas, who likes to portray himself as a man of simple tastes. The report notes that in a recent documentary about his life, Thomas stated, “I prefer the RV parks. I prefer the Walmart parking lots to the beaches and things like that. There’s something normal to me about it.” Let’s just say that none of the trips Thomas took with Crow on his yacht and to his private resort in the Adirondacks resembled a Walmart parking lot.
It is fitting that this news would drop a day after we wrote about the election for the Wisconsin Supreme Court. The reporting on Thomas shows the utter hypocrisy of those on the political right claiming that progressive judges are the ones undermining faith in our judicial system.
Supreme Court Chief Justice John Roberts likes to intone on how much he cares for the integrity of the court. But under his watch, the court’s standing with the public has dropped precipitously. And he need look no further than his ideological counterparts in the court’s right-wing majority.
The damage to the court’s reputation has been manifest in a series of rulings that have made a mockery of the ideas of judicial restraint and precedent. These have overturned Roe v. Wade, emboldened unrestricted gun rights, and undermined our representative government through gerrymandered elections. And that’s just the beginning.
Then there is the personal conduct of the justices, of which Thomas, a hero to the right, is a particularly egregious example. Here he is hobnobbing with rich, powerful interests and not letting anyone know. There he was refusing to recuse himself from a case involving the January 6 insurrection even though his own wife was implicated. It is clear he feels he has no need to defend his actions to anyone. He is completely unaccountable and flaunts it.
Senate Democrats today called for an ethics code for the Supreme Court. But color us skeptical that anything will change anytime soon.
This is a time of great tension in the function (or perhaps more aptly, the dysfunction) of our democracy. It feels as if we have been walking a high wire for years. But the tension still increases. In just the last few days, we have seen a state legislator in North Carolina who had run as a solid Democrat switch parties, giving Republicans a supermajority. In Tennessee, Republicans in the state’s House expelled two Democratic representatives who had joined students in protesting inaction on gun violence. And this on top of what we saw in Wisconsin.
There is also the backdrop of the former president facing numerous strands of legal peril.
There has always been an element of hardball in politics. There have always been public officials who skirted or crossed the lines of ethics and the law. There have always been judges who had dubious connections. Democracy is always precarious.
But there is a sense that now the danger is building. Voters are angry. The will of the majority is being undermined on issues like abortion and gun safety. Power is being accrued for its own sake and not to address the needs of the people.
These are times when we need a fearless press to explain where there is peril and where there is promise around the ability of our nation to regain its footing and thrive. Kudos to ProPublica for its contribution to the health of American democracy.
*****************
For the last several weeks, the so-called “mainstream media” has been providing “wall to wall” coverage of a “non-event” that eventually “morphed” into yet another tawdry episode in the tawdry life of America’s most visible anti-democracy fascist! They worked hard to give “equal (or greater) time” to a unified disingenuous effort by this guy’s supporters to portray him as “the victim!” In perhaps a new “modern journalistic low” they willingly provided a platform for dangerous wacko conspiracy theorist “MTG” to spew forth her vile “sicko-fascist” rantings — with little pushback and no fact checking!
Fortunately, as pointed out by Rather and Kirschner, somebody, in this case Pro Publica, was out there doing serious investigative journalism while their “mainstream” colleagues indulged their fantasies!
For more on the GOP’s concerted, nationwide assault on democracy and fundamental values, read historian Heather Cox Richardson, here:
Hello friends,
As we move deeper into 2023, you may be, like we are, still
processing 2022 (or 2019, let’s be honest). For immigration, the
new year comes with its own challenges as a divided Congress
makes policy decisions difficult and a shift to the 2024 presidential
race takes hold. Nevertheless, we have to remain hopeful that
progress can still be made. And you can be part of that! To remind
yourself of what happened last year and learn what issues our
government can focus on, check out our special edition of Téa’s
Coffee where she goes to the Senate to meet New York Senator
Kirsten Gillibrand.
We hope you enjoy this issue as much as we do,
-The Immigrant Food Team
Check out the full issue
Several “quick takes” from Tea’s interview with Senator Gillibrand:
She has introduced an “Article I Immigration Court Bill” in the Senate and believes it’s the type of bipartisan initiative that might interest enough GOP legislators to form a “working bipartisan majority.” A similar bill introduced by Rep. Zoe Lofgren (D-CA) in the last House received a hearing and was favorably voted out of Committee, but was never taken up by the full House, see, e.g., https://lofgren.house.gov/media/press-releases/house-judiciary-committee-passes-lofgren-s-legislation-reform-us-immigration;
Sen. Gillibrand’s biggest fear for American democracy is “demonization and racism” of which immigrants and asylum seekers are prime targets;
She thinks the “biggest danger” comes from “White supremacist groups” — basically right-wing domestic terrorists.
Both Tea’s 2022 summary and the interview with Sen. Gillibrnd are well worth the watch and can be accessed at links above.
“Social Justice/Business/Courageous Leadership Dynamo”🌪 Tea Ivanovic was recently recognized as one of “Forbes 30 Under 30” by Forbes Magazine and a “Woman Who Means Business” by Washington Business Journal! She is an “NDPA New Generation Super-Star” 🌟 to watch, for sure! And, from a “DMV standpoint,” Tea is a proud Virginia Tech Hokie alum and a former varsity tennis player. Certainly, a person of unlimited talents who has chosen to use them for the public good! You can check out my previous “Courtside profile” of Tea here: https://immigrationcourtside.com/2022/09/10/🇺🇸🗽👍🏼-immigrant-nation-teas-truth-wisdom-americans-views-on-immigrants-and-immigration-are-overwhelmingly-positive/
Professor Kate Shaw Cardozo Law PHOTO: Cardozo Law WebsiteProfessor Leah Litman University of Michigan Law PHOTO: Michigan Law Website
Kate and Leah were live from the University of Pennsylvania in Strict Scrutiny’s first live show of 2023! Penn Law Professor Jasmine E. Harris joined the hosts to recap arguments in a case that could impact disability rights. Kate and Leah recap two other arguments, in a case about immigration law and another about the ability to criminally prosecute corporations owned by foreign states. Plus, a major update about the Supreme Court’s “investigation” into who leaked the draft opinion of Dobbs last spring. And Temple University Law School Dean Rachel Rebouche joined the hosts to talk about some concerning updates in abortion access– an unfortunately commemoration of the 50th anniversary of Roe v. Wade.
• Here’s the report summarizing the Supreme Court’s investigation into who leaked the Dobbs opinion. (TLDR: they still don’t know who did it, but they tried their best? Former United States Secretary of Homeland Security Michael Chertoff said so.)
To hear the comments on our amicus brief “tune in” at 14:00 (lots of other “interesting commentary” on other cases if you listen to the entire program):
“With the highest possible human stakes,” amen, Kate!I get that, you get that, those stuck in the “purgatory of EOIR” get that! But, sadly, Biden, Harris, Garland, Mayorkas, their too often bumbling bureaucrats, and a whole bunch of Federal Judges at all levels DON’T “get” the dire human consequences and the practical impact of many of their decisions. That’s particularly true of those that give EOIR a “pass” on bad interpretations, opaque procedures, and a “super-user-unfriendly” forum that all too often defies logic and common sense! If they did “get it,” EOIR wouldn’t be the dystopian, likely unconstitutional, and life-threatening mess that it is today!
All you have to do is imagine yourself to be an unrepresented individual, who doesn’t speak English, on trial for your life in this messed up and unaccountable “court” system that holds millions of lives in its fumbling hands! Seems like a “modest ask” for those who have risen to the Federal Bench. But, for many, it’s a “bridge too far!” Let’s just hope that the Court does the “right thing” here!
Thanks to Round Table Maven Judge “Sir Jeffrey” Chase for spotting this!
“This appeal arises from the Board of Immigration Appeals’ (BIA) denial of Karla Yadira Lara Canales’s motion to reopen her removal proceedings. The BIA denied her motion to reopen as untimely, leaving the order of removal in place. We now VACATE the BIA’s denial of Lara Canales’s motion to reopen and REMAND so that the BIA may properly consider whether Lara Canales is entitled to equitable tolling. … [E]ach of the BIA’s bases for determining that Lara Canales had not accrued the continuous physical presence required for eligibility of cancellation of removal was legal error. We now hold that Lara Canales is statutorily eligible to seek cancellation of removal. However, this holding does not automatically entitle Lara Canales to have her motion to reopen heard on the merits. The BIA must, upon remand, engage in the fact-intensive determination of whether the 90-day deadline on motions to reopen should be tolled because of the extraordinary circumstance presented by Pereira. If the BIA determines Lara Canales satisfies the requirements for equitable tolling, she may then present her motion for a determination on its merits. We therefore VACATE the BIA’s denial of Lara Canales’s motion to reopen and REMAND this case for further consideration not inconsistent with this opinion.”
[Hats off once again to superlitigator Raed Gonzalez!]
Thanks Raed for continuing to lead the fight for justice in “America’s worst ‘court’ system” in America’s most right-wing Circuit!
THIS “any reason to deny mentality” at EOIR, still being promoted by Garland’s BIA, combined with incredibly inept and unprofessional “administration” of EOIR by DOJ, is why the Immigration Court is broken and being crushed by unending backlogs, daily chaos, and a travesties of justice and sound government!
The Biden Administration pretends like the problem doesn’t exist and/or isn’t important enough to fix. But, I can assure you that they are WRONG! “Dead wrong” in some cases!
In addition to the public manifestations of dysfunction and unprofessionalism like this case, I get regular e-mails from NDPA members relating their own EOIR horror stories and venting their frustrations with the arrogant “above the fray/what me worry about humanity and those defending it” attitude of Garland and the rest of the Biden Administration responsible for the ongoing EOIR catastrophe!
I strongly doubt that Garland, Monaco, Gupta, Prelogar, and the rest of the DOJ “clueless crew” responsible for this indelible blot on American justice would last 60 days if required to practice exclusively before EOIR under the unfathomably horrible, due-process-denying conditions they have promoted and enabled over their past two years of horrible legal “leadership!” As aptly stated by one practitioner who recently contacted me:
“Things in Immigration Court will never be the same, but I at least expected attention to due process. Nope, IJ’s are more interested in getting the cases done.”
How is this appropriate conduct from a Dem Administration that claims to value human lives, racial justice, and the rule of law, but whose actions at EOIR (and elsewhere in immigration and human rights) say the exact opposite? Poorly functioning as EOIR was when I retired in 2016, the “anecdotal consensus” from practitioners seems to be that it’s measurably worse now under Garland’s inept leadership! “Come on man,” this just isn’t right!
After all this time (17 years since the BIA’s supposedly “final” order), this case is still not complete! It’s back at the BIA for yet another chance for them to deny on specious, legally incorrect grounds. One possibility is to misapply the “equitable tolling” concept mentioned by the 5th Circuit. The BIA has a long, disgraceful record of resisting and mis-applying equitable tolling.
Or, perhaps they will attempt to invoke their recent precedent in Matter of Chen, 28 I&N Dec. 676 (BIA 2023) https://www.justice.gov/eoir/page/file/1561876/download to deny reopening for “failing to make out a prima facie case for relief on the merits.”
Chen is a case where the the respondent moved to reopen to apply for NLP cancellation having attained the required 10 years of physical presence by reason of the BIA’s two wrong-headed precedents overruled by the Supremes in Pereira v. Sessions and Niz-Chavez v. Garland. Having twice screwed up in a way that created tens of thousands of potential remands and reopenings, someone not familiar with the BIA might have expected them to set forth clear, practical, generous criteria that would encourage IJ’s to consistently reopen cases where the respondent now had the qualifying time and relative(s) in light of the problems caused by the BIA itself. After all, that’s basically the direction in the BIA’s long-standing precedent Matter of L-O-G-, 21 I&N Dec. 413 (BIA 1996) (reopening where the record“indicate[s] a reasonable likelihood of success on the merits, so as to make it worthwhile to develop the issues at a hearing”). https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwjWzY36pdn8AhVgF1kFHTcxChEQFnoECBkQAQ&url=https://www.justice.gov/sites/default/files/eoir/legacy/2014/07/25/3281.pdf&usg=AOvVaw2Ntzlp4MuxfupmjaDIn7i6
Since “exceptional and extremely unusual hardship” is inherently a fact-bound issue requiring a hearing to develop those facts, one might expect most cases to be routinely reopened.
But, the BIA took a different tack in Chen. While acknowledging that the hardship asserted by the respondent fell within the zone of those “recognized” by the BIA, they found “she has not identified and documented heightened hardship beyond that which would normally be expected to occur in such circumstances.”
While the BIA claimed to be “following” Matter of L-O-G-, they actually appear to have violated the teaching of that case that: “In considering a motion to reopen, the Board should not prejudge the merits of a case before the [respondent] has had an opportunity to prove the case.”(21 I&N Dec. at 419). That should particularly be true when the BIA itself has had a major role in creating the situation where reopening is sought.
By providing only a negative precedent (they didn’t even botherto “bookend” this with a precedential example of a grantable motion) to a system already suffering from a “culture of denial,” the BIA aggravated an long-festering problem. One can expect many IJ’s to view Chen as an “invitation to deny” the many Pereira/Niz Chavez motions to reopen in the offing for specious reasons or indeed for “any reason at all.” I expect talented NDPA warriors like Raed to make mincemeat out of the BIA’s wrong-headed attempt to minimize the “Pereira-induced damage” they have generated.
Like most of the misguided efforts of the 21st Century BIA, this attempt to cut corners, summarily deny, and NOT provide full due process and real hearings is likely to take more time and waste more resources than simply giving respondents the fair merits hearings to which they are legally entitled in the first place.But, that’s exactly what this Dem Administration has wrought at EOIR. “More of the same, instead of the promised change!”
Immigration law rocks with “Professor Stevie & His Ramblin’ Band of Experts!” Public Realm
Immigration Reform: Lessons Learned and a Path Forward
Congress has been unable to enact comprehensive immigration reform for over 30 years.
Employers face an unprecedented shortage of workers.
The Dreamers, long-contributing members of our society, face uncertainty due to litigation questioning the legality of the DACA program.
And border security concerns everyone.
Polls suggest Americans want immigration reform. But the conventional wisdom is that “comprehensive immigration reform” is impossible in a divided Congress.
This conference will explore targeted legislation and other policy changes that could be enacted in 2023, focusing on work visa changes to help alleviate our labor shortages, border security and asylum reforms, and a permanent path forward for Dreamers, farmworkers.
Sponsored by the Cornell Law School Immigration Law and Policy Research Program and cosponsored by the Cornell Migrations Initiative.
While we encourage in-person attendance, the conference will be webcast live from the National Press Club. Mark your calendars now for this important event!
Panelists from the following organizations:
American Action Forum, American Business Immigration Coalition, AmericanHort, Bipartisan Policy Center, Compete America, Cornell Law School, Migration Policy Institute, National Association of Evangelicals, National Immigration Forum, Niskanen Center, Service Employees International Union,
Texas Association of Business, TheDream.US, UnidosUS,
United Farm Workers of America, U.S. Chamber of Commerce
A special thanks to the Charles Koch Foundation for sponsoring this event.
This is a promising idea. Hope it works! I have to wonder, however, why a coordinated effort like this wasn’t implemented for asylum seekers arriving at the Southern Border?
You can register (free) for the Cornell Conference, where this and other timely topics will be discussed by the experts!
President Biden’s seemingly chaotic policy toward asylum seekers at the U.S. border is no accident. It’s carefully crafted to minimize political fallout. The administration should keep it simple instead, by following the law and doing the right thing — admitting those who arrive at our borders seeking asylum.
Give voters a chance, Mr. President. The American people value decency. They don’t respect craven and calculated inconsistency.
This week, the Biden administration announced an expansion of a Trump-era policy to turn away individuals fleeing persecution who reach our borders. This began with a pretext of limiting the spread of COVID-19, using a public health law known as Title 42. Now it’s just a sop to people who oppose immigration.
In April 2022, the Biden administration stated its intent to end Title 42. Litigation delayed the termination, but in mid-November, a federal judge ruled the policy unlawful, and ordered it to end by Dec. 21. The Supreme Court has stayed that order until it hears arguments next month.
Now, in a head-spinning turn of events, Biden has announced the expansion of Title 42 to Haitians, Nicaraguans and Cubans — nationalities that had not previously been subject to summary expulsion at the border.
If this were not enough of a contradiction, the administration also plans to resurrect another Trump-era policy which Biden had previously denounced, the “transit ban.” This rule bars from asylum any migrants who do not apply for and receive a denial of asylum from the countries they pass through on their way to the U.S.
This “outsourcing” of our refugee obligations to countries of transit, which a federal court found unlawful when implemented by the Trump administration, is ludicrous on its face. The asylum seekers who arrive at our border pass through countries such as Honduras, El Salvador and Guatemala, with human rights conditions as dire as in the migrants’ nations of origin.
To date, the only country with which we legally have such an arrangement is Canada — which makes sense because it has a robust refugee protection system and an admirable human rights record. And even if there are other countries of transit, such as Costa Rica, that have a well-developed framework for the protection of refugees, and solid records on human rights, they are already taking in numbers of asylum seekers that far exceed their capacity.
. . . .
*******************
Read Karen’s full op-ed at the above link.
It’s simply appalling, not to mention disingenuous, for Biden to ignore the advice of experts like Karen, the founder and moving force behind the Center for Gender and Refugee Studies at U.C. Hastings Law. (Karen also argued the landmark Kasinga case before the BIA when I was Chair). Instead, disgracefully, he has turned human rights and immigration policies over to a bunch of spineless, scofflaw politicos and “go along to get along” bureaucrats.
He has multiplied the problem by following and adopting their highly politicized program of “carefully crafted chaos” — which both ignores the law and inflicts irreparable harm, including death, on legal asylum seekers! The “crime” of these victims of Biden’s tone-deafness? Seeking to exercise their legal rights under U.S. and international law to apply for asylum!
Biden and some Dems seem to have forgotten the nationwide, grass roots wave of support for admission of refugees in response to Trump’s despicable “Muslim ban!” As Karen points out, rather than “running from” immigration, refugees, and asylum as issues, Biden and other Dems should be embracing them as part of our heritage as a nation of immigrants and a source of strength and shared prosperity for our future! Refugees and asylees are a key component of our legal immigration system.
Making the necessary progressive, due process and fundamental fairness oriented, reforms to enable our nation to welcome those qualified in a timely, humane, and fair manner should be a top priority! As Karen cogently notes, “doing the right thing,” and doing it really well, “is good politics!”
Biden’s latest immigration nonsense will be attacked by litigators on both sides. Both the ACLU and Stephen Miller’s nativist legal group “America First Legal” have pledged to resist various parts of the new policies in court. The irony here is that Biden’s latest anti-asylum efforts incorporate much of the “Miller White Nationalist agenda” that Biden and other Dems campaigned (and fund-raised) against during the 2020 election!
Biden and his immigration advisors apparently have been overindulging in this stuff lately! It shows in their disturbingly poor performance on asylum, human rights, an “order at the border!”
Karen’s message is the same as mine. “It’s not rocket science!🚀 Migrants have a right to asylum.”🗽 Start with that straightforward truth and everything else falls into place!
Thanks for speaking out so forcefully, articulately, and truthfully, Karen, my friend!
On Title 42, the Supreme Court rules for a partisan agenda
COVID-19 is no reason to shut out migrants. Yet it’s used as a political pretext.
By Erwin Chemerinsky
The Supreme Court’s ruling last week to keep in place a Trump-era immigration order can only be understood as five conservative justices advancing a conservative political agenda, in violation of clear legal rules.
Without giving reasons or any explanation, the court reversed lower court decisions that allowed the Biden administration to lift a restriction that prevents asylum seekers at the border from entering the country, imposed early during the COVID-19 pandemic.
The federal law — referred to as Title 42 — permits the Centers for Disease Control and Prevention to prohibit people from coming into the U.S. to avert the spread of a “communicable disease” present in a foreign country.
.. . .
In November, U.S. District Judge Emmet Sullivan, in Washington, D.C., found that the continued use of Title 42 was “arbitrary and capricious in violation of the Administrative Procedure Act.” He ruled that the expulsion policy was no longer justified based in light of the present state of the pandemic, which includes widely available vaccines, treatments and increased travel in the United States.
Nineteen states with Republican attorneys general, however, oppose that ruling and sought the right to appeal to the U.S. Court of Appeals for the District of Columbia Circuit. They were not parties to the lawsuit in the District Court and the law generally does not allow parties to get into a case for the first time at the appeals level. On Dec. 16, the federal Court of Appeals, following its well-established law, refused to allow the states to intervene. The states then sought Supreme Court review of that decision.
On Dec. 27, in Arizona vs. Mayorkas, the Supreme Court, in a 5-4 ruling, not only said that it would hear the states’ appeal, but that it would require that the Biden administration continue to use Title 42 to expel migrants.
The court’s action makes no sense for several reasons. Title 42 provides the government authority to close the borders only if a public health crisis involving a communicable disease requires it. No one in the litigation disputes that COVID no longer warrants restrictions on immigration.
. . . .
The states are intervening not because they believe that a continuing public health emergency requires Title 42, but because they want to use it as a pretext to close the borders.
In fact, in another case now pending on the Supreme Court’s docket — on whether the Biden administration’s student loan forgiveness program is justified as a response to the pandemic emergency — 12 of the states in the Title 42 case argued in their brief that “COVID-19 is now irrelevant to nearly all Americans.”
The Supreme Court’s order is senseless for another reason: The only issue before the court is whether the states can intervene in the case. It is not about whether the District Court erred in ending the use of Title 42 to expel migrants. Even if the states were allowed to join the case, they can’t plausibly make the case that COVID concerns still justify immigration expulsions at this point.
. . . .
The five conservative justices based their decision not on the purpose of Title 42, which is to stop the spread of a communicable disease, but on their partisan agreement with conservatives on immigration issues. We should expect better of the court than that.
*********************
Read Dean Chemerinsky’s full article at the link. Having a High Court, with life tenure, where a majority of the Justices enter “senseless orders” — targeting some of the most vulnerable and abused in our society who also happen to be predominantly individuals of color — is in and of itself senseless — from a standpoint of preserving our democracy!
The action of the five GOP Supremes is beyond outrageous! The NDPA CAN turn this gross right-wing minority abuse of our judicial system around!Likely not in my lifetime!
But, you need to keep pushing Dems to pay attention to judicial appointments and start insisting on meaningful professional expertise in immigration and actual experience representing individuals in Immigration Court as a basic requirement to serve as a Justice. Also we need an Article I Immigration Court and NO MORE Attorneys General without proven “grass roots” immigration and human rights experience!
Immigration is “where the action is” on the fight to save American democracy! If tone-deaf and spineless Dem politicos keep “running” from the key issue in American law and society, perhaps it’s time for true liberals, progressives, and constitutional humanitarian realists to “run” from the Dem Party!
This Supreme farce also reinforces the disgraceful failure of Garland and the Dems to reform the “Supreme Court of Immigration” — the BIA — by replacing enforcement-tilted Trump holdovers with practical scholar, expert, progressive judges committed to realizing long-denied due process, fundamental fairness, and the best interpretations of immigration and refugee laws! Dems control an important Federal Appellate body and are too clueless and afraid to do the right thing — even with the rule of law, racial justice, and human lives on the line!
The Biden administration has long been saying that it wants to get rid of Title 42.
Why, then, has it been expanding use of this policy?
“Title 42” is shorthand for what is effectively an abuse of a public health authority to circumvent U.S. asylum laws. Beginning in March 2020, the Trump administration used an obscure public health statute to automatically expel migrants without allowing them to first apply for asylum, as is their right under U.S. law and international treaty;PresidentDonald Trump’s pretext was that these immigrants might spread covid-19.
Apparently, Trump considered covid a liberal media hoax except when useful for punishing foreigners.
Human rights advocates and public health experts alike criticized the policy as probably both illegal and lacking a credible epidemiological purpose. Whatever its intentions, it didn’t reduce stress at the border; instead, it increased attempted border crossings, as many people expelled without consequence or due process turned right around and tried again to enter the United States.
That is, if they weren’t kidnapped, tortured, raped or otherwise violently attacked first. This happened in more than 10,000 cases of expelled migrants, as documented by Human Rights First.
As a presidential candidate, Joe Biden pledged to restore the integrity of the asylum system. He promised that anyone qualifying for an asylum claim would “be admitted to the country through an orderly process.” As president, though, Biden dragged his feet in terminating Title 42. He finally agreed to end the program this past spring. But termination has since been delayed by complicated court rulings, which Biden officials seem to have fought only half-heartedly.
This week, the Supreme Court determined that Title 42 must remain in place at least until the court decides a related issue (probably in the coming months). Given the Biden administration’s claims of wanting to end Title 42, the president should theoretically be mad about the delay.
Instead, Biden officials seem to have seized the opportunity to make yet more immigrant groups subject to automatic expulsions. “The administration has taken the position in court that they can no longer justify keeping Title 42 in place, given the lack of any public health justification,” said Lee Gelernt of the American Civil Liberties Union, which is challenging the expulsion policy. “If you look at the administration’s actions, however, it’s clear they’re fine with Title 42 remaining in place.”
. . . .
Americans often complain that immigrants should come here “the right way,” but for many migrants, showing up at the border unannounced and turning themselves in is the only legal pathway available. If given options to come here that don’t require paying gangs and crossing deserts, people would gladly take them — which would in turn alleviate stress at the border.
To its credit, the Biden administration has taken baby steps on that last recommendation.
Its Uniting for Ukraine program, for instance, has vetted and “paroled in” more than 82,000 Ukrainians and their immediate relatives abroad, which has discouraged Ukrainians from showing up en masse at our southern border (as had been the case early in the war). A similar but much more restrictive program was created for Venezuelans, whose numbers are capped at 24,000; a parallel program is reportedly in the works for Cubans, Nicaraguans and Haitians.
But again, these additional legal pathways can be created while still upholding the ability to apply for asylum at our borders. That’s what U.S. law requires — and what Biden has, repeatedly, promised to do.
***********************
Read Catherine’s full article at the link. “If you look at the administration’s actions, however, it’s clear they’re fine with Title 42 remaining in place.”So true! So outrageous!
Contrary to much of the blather from both parties, refugee and asylum laws are an integral part of our LEGAL immigration system — one that is now being grossly misapplied and under-utilized!
Creating additional legal avenues for immigration by legislation is by no means inconsistent with maintaining robust, well-functioning refugee and asylum programs!
There are lots and lots of improvements that the Biden Administration could and should have made to the legal refugee and asylum programs that already exist under the law! Indeed, I suggest that many of the bogus “gimmicks” and counterproductive, wasteful, unfair “deterrents” devised and implemented by the Biden Administration, including expanded use of Title 42, were in direct or indirect response to Garland’s failed Immigration Courts. Because they are backlogged, inefficient, and dysfunctional, bureaucrats and politicos dream up ways to evade them (as opposed to fixing them so they work)!
It’s all wrong! There are “tons” of cases rotting inGarland’s ever-expanding EOIR backlog that could be granted or otherwise disposed of with relative ease and without stomping on anyone’s due process rights! There are ways of providing proper notice, better scheduling, and a new system for initial adjudications of non-LPR cancellation cases that do NOT require legislation; just better leadership and personnel at DOJ, DHS, and the White House!
The lack of scholarly, progressive, due process oriented precedents and implementation of best judicial practices by the BIA cripples justice in both the Immigration Courts and the USCIS Asylum Offices, even extending to the Refugee Program and other forms of USCIS adjudication of benefits.
For example, the ridiculous, largely self-created, backlogs in USCIS work authorizations is at least partially fueled by never ending backlogs in Immigration Court. Also, bad judicial decisions at EOIR create large amounts of unnecessary litigation in the Article III Courts and promote inconsistencies by allowing too many important issues, including proper application of some of the BIA’s own precedents favorable to respondents, to be resolved by the Circuits.
The system is a godawful mess! Yet, Dems inCongress didn’t even consider pressing for long-overdue Article I legislation, already introduced by Chair Lofgren, as part of their “lame duck push.” Thus, a key part of the immigration and justice systems continues to flounder and fail in Garland’s DOJ!
The need for so-called “comprehensive immigration reform” does not in any way minimize the responsibility of the Biden Administration for failing to reform the leadership and bureaucracies at DOJ and DHS to produce fairer, more efficient, expert, professional results!
Some cowardly Dem politicos and many Biden officials “run” from the immigration issue; yet, addressing and fixing the parts they control, like EOIR, could well have given them success to tout during the mid-term campaign.
And, as many experts suggest, it might also have helped address labor shortages, inflation and improved the economy. Rather than just “holding off disaster,” by acting more boldly on immigration the Dems might even have maintained and expanded their political control by demonstrating both the competence to solve immigration problems, even without comprehensive legislation, and the benefits of a fair, efficient, functional immigration system to America as a whole.
With the GOP taking over the House, expect many Dems to continue bellyaching that “nothing can be done about immigration.” It’s not like they did much of anything when they controlled both Houses!
There are still things that can be done to make the system fairer, more efficient, and more responsive to the common needs of America. Progressives should not let Dem “naysayers” off the hook!
Jay Kuo American Author, Producer, CEO of The Social Edge PHOTO: FacebookSome righty judges get all the way to the Supremes while remaining indifferent to the wrongful suffering of humanity from their bad judging!y Photo by David R. Badger, Creative Commons
Time and again, the current Supreme Court has waded into what should be a political fight, using its broad power to effectively freeze or rewind the clock. In so doing, it has often locked in the worst possible outcome, then leveraged its busy and lengthy docket to unacceptably extend that outcome.
It did this with the Texas vigilante enforced abortion law, allowing a facially unconstitutional restriction to remain on the books and actively in place, effectively shutting down reproductive health services across the state. It did it again by staying lower federal court orders that had struck down unconstitutional racial gerrymanders in the South, permitting illegal maps to disenfranchise African American voters. That was at least four seats that should have been minority opportunity districts—enough to cost the Democrats the House majority. And on Tuesday, SCOTUS pulled this trick once more, this time leaving in place a draconian Trump-era pandemic immigration ban, broadly known as Title 42, that the Biden administration wanted gone and that a federal judge already had ordered lifted.
In so doing, the Court further revealed itself as precisely what it should not be: a political powerbroker and, as even conservative Justice Neil Gorsuch noted in dissent, a group of “policymakers of last resort.”
What’s the story behind Title 42, and how does this most recent ruling get things upside down? What will it mean for the thousands of desperate migrant families camped in dangerous conditions at the border? And what should we expect next from Congress and the White House? I explore these and some key takeaways from the decision.
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It is next-level hypocrisy that red state leaders, who during the pandemic eschewed all manner of basic preventative health measures at great cost to human life, should now champion a policy that cites the virus as the reason to expel millions of theoretical carriers. The idea that Mexico was somehow a greater vector for disease and infection than the red states of America is also both deeply cynical and plainly counterfactual.
From a policy standpoint, the notion that certain states can claim they would suffer special harm from the lifting of Title 42 and that this somehow gives them standing to stop the government in its tracks threatens to upend our entire federal system. In every policy decision by federal authorities there are winners and losers, from taxation to infrastructure spending to rules around land and water use. Immigration, and the states which allegedly are most affected by it, should receive no special dispensation or consideration. Giving these states a voice and standing in this instance sufficient to hamstring the government would be premised on nothing but the Court’s apparent political priorities, and not sound federal principles.
Finally, the crisis at the border truly requires a bipartisan political solution, but no comprehensive immigration reform bill has passed Congress since 1986. Today, the “problem” of immigration has become a useful political tool for Republicans around which to rally their base and with which to fundraise. Unsurprisingly then, they appear to have no real interest in actually trying to solve the problem through legislation. As Secretary Pete Buttigieg has observed, this will remain the case so long as the problem of immigration is more useful to them than the solution.
The upshot is, we likely will continue to see misery at our border and buses of migrants sent by governors Abbott of Texas and DeSantis of Florida dropped off in liberal bastions like Martha’s Vineyard or in front of Vice President’s Harris’s home in D.C. The Biden Administration will still continue to work quietly behind the scenes to lessen the impact of Title 42 and to argue in court for ending the policy. But whether SCOTUS will relinquish its de facto policymaking role to the proper branches of government remains unclear.
Jay Kuo is the CEO of The Social Edge, a digital publishing and social media company based in New York City. Jay is head of “Team Takei,” managing engagement with Star Trek legend George Takei’s 23 million Facebook, Instagram and Twitter followers. Jay is also the composer, lyricist and co-librettist for the Broadway musical Allegiance as well as the librettist on the Broadway-bound Indigo, the first musical to feature and star a teenage girl on the autism spectrum. Jay is also a two-time Tony-winning co-producer for the hit musical Hadestown and the critically acclaimed, epic play The Inheritance.
Apart from his Broadway and social media work, Jay is a published author, an avid political blogger, and a partner in Gaingels LLC, the nation’s largest private investment syndicate. While he worked as an attorney, Jay was an appellate litigator admitted to practice before the Ninth Circuit and U.S. Supreme Court.
Jay has served on the boards of the Northern California ACLU and the Bay Area Lawyers Individual Freedom, and he argued the first Ninth Circuit challenge to the military’s “Don’t Ask, Don’t Tell” policy. Jay currently serves on the national board of the Human Rights Campaign, the nation’s oldest and largest civil rights organization serving the LGBTQ+ community.
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Read Jay’s complete, very clear and understandable, analysis of the Title 42 charade at the link.
These ivory tower right wing zealots in robes exempt themselves from the human pain and suffering that their horrible judging causes. Judges are supposed to solve problems. This gang makes them worse!
Lets’ repeat it again: The idea that this “esoteric issue,” raised at the last second, by corrupt GOP AGs who aren’t even parties to this case, claiming largely phantom “harm” that pales in relation to the well-documented life-threatening harm suffered by legal asylum seekers every day, merits an indefinite stay that inflicts yet more unconscionable harm, even death, upon the most vulnerable among us, is as illegal as it is patently absurd.
That it was imposed by five judges on our highest Court, who are suppose to uphold our Constitution and individual rights against government overreach is something that should be of grave concern to all who believe in American democracy, particular future generations who will have to live with the shame and damage inflicted by these out of touch far-right jurists!
Better judges for a better America! Why should judges who have never participated in the “retail level of our justice system” — by representing individuals in our broken, biased, and dysfunctional Immigration Courts — be ensconced on our highest Court and given life or death power over persons they wrongfully treat as less than human and whose legal and human rights they so shamelessly deny?
The myths — or, rather, convenient lies — that some politicians keep circulating about the U.S.-Mexico border have resulted in another disappointing congressional session for immigration reform.
Instead of crafting much-needed solutions to address the fate of young immigrant “Dreamers,” the backlog of cases in immigration courts or any of the myriad problems caused by outdated immigration laws, policymakers spent most of their time wrangling over Title 42, a public health order invoked during the COVID-19 pandemic to manage border crossings.
Disinformation prevents policymakers from having honest discussions and enacting sensible solutions. The complex U.S.-Mexico border region is a confluence of cultural, social and economic communities whose problems need sophisticated solutions not easily summarized by sound bites. Yet many people continue to peddle misconceptions about the border and engage in partisan theater such as dispatching migrants to Vice President Kamala Harris’ home or creating a wasteful wall of shipping containers, as the Arizona governor has done.
The debate on immigration and border control is likely to intensify in early 2023, when the GOP takes control of the House. Though there’s little expectation of significant legislation in a divided Congress, the constant arrival of migrants at the border is sure to keep the topic in the news. Because it’s important to look beyond sound bites, we’re fact-checking the misconceptions about the U.S.-Mexico border you are likely to hear in the coming months.
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Read the complete editorial at the link.
The lies and myths are largely pushed by GOP nativist politicos, and some right wing activist Federal Judges, although disgracefully some Dems have adopted, enabled, or gone along with certain aspects of them.
NGOs, communities, and advocates are about the only ones acting with urgency on the truth of this solvable humanitarian crisis. In doing so, they too often face roadblocks or lack of competence, honesty, and urgency from government officials at all levels.
