"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.
Associate Provost/Co-Director of the Immigration Clinic/Professor of the Practice Laila L. Hlass Tulane Law
Laila, my friend, everywhere I look you’re making news! Here’s Dan Kowalski @ LexisNexis on Layla’s well-deserved Lisa Brodyaga Award from the National Immigration Project:
Laila was a “guest lecturer” in my Refugee Law and Policy class during her time as a Fellow at the CALS Asylum Clinic at Georgetown Law. Since then, I have “returned the favor” by traveling to Tulane Law, both virtually and in person, to speak to Laila’s class and other immigration events. Laila has been recognized for “putting Tulane Law on the map” for innovative practical scholarship in immigration and international human rights and excellence in clinical teaching. No wonder she carries a “string of titles” at Tulane Law!
Laila is also one of many exciting examples of how clinical immigration and human rights professors have not only moved into the “academic mainstream” at major American law schools, but have been recognized as leaders and innovators by the larger academic communities in which they serve. Immigration law teaching has come a long way since the late INS General Counsel Charlie Gordon’s Immigration Law Class at Georgetown was the “only game in town.” (Historical trivia note: My good friend the late BIA Judge Lauri Filppu and I “aced” Charlie’s class in 1974, thus “besting” our then-supervisor at the BIA. That could have been a “career limiting” move. But, we both ended up on the “Schmidt Board” in the 1990s.)
Many congrats, Laila, on an already amazing career with even more achievements and recognition in your future. Thanks for being such a brilliant, inspiring, and dynamic role model for the New Due Process Army!
Close immigration courts now: A coronavirus necessity to protect public health
BySTEPHEN YALE-LOEHR andJACLYN KELLEY-WIDMER
NEW YORK DAILY NEWS |
MAR 31, 2020 | 1:36 PM
In this Nov. 15, 2019, file photo, a detainee talks on the phone in his pod at the Stewart Detention Center in Lumpkin, Ga. While much of daily life has ground to a halt to reduce the spread of the coronavirus, the Trump administration is resisting calls from immigration judges and attorneys to stop in-person hearings and shutter all immigration courts. They say the most pressing hearings can still be done by phone so immigrants aren’t stuck in detention indefinitely.(David Goldman/AP)Imagine you’re an immigration lawyer. You have a case scheduled for trial in immigration court, but you’ve got a cough, a sore throat and shortness of breath. In normal times, you probably would have gone to court for the trial. In current times, you’re worried. We all know what those symptoms mean.
You call your doctor, who tells you that you’re displaying symptoms consistent with COVID-19. The doctor recommends that you self-quarantine.
Your immigrant client is detained by Immigration and Customs Enforcement (ICE) and counting on you to present their asylum case. You’ve been preparing for months. Your client’s ability to avoid being deported to a country where they face torture or death depends on your performance.
Even though most courts around the country are closed in response to the pandemic, your court date is still on. The Justice Department is keeping its detained immigration courts open, ignoring joint letters from the National Association of Immigration Judges, the American Immigration Lawyers Association and the union representing ICE attorneys calling for a shutdown during the pandemic.
As of your trial date, you haven’t been able to meet with your client in person to prepare for at least two weeks. At the time, ICE wouldn’t let you use your regular attorney visit rooms due to disease risk, so you were stuck waiting in line for the one glass-partitioned attorney room at the detention center. You never got to the front of the line for the room, so you were only able to talk to your client through glass and on the telephone.
Then ICE issued a new directive on March 21 requiring all attorneys to bring their own gloves, mask and eye protection for contact visits with clients. Your office doesn’t have any of this gear. Even if you could get protective gear, you wouldn’t take it away from the medical professionals who truly need it.
Despite all of this, you hope the immigration judge will sympathize with your predicament. You file a motion asking for more time to better represent your client after all of this is over. You cite your own illness, your inability to meet with your client to prepare, and local and national public health warnings.
Despite your objections, the immigration judge proceeds with your client’s asylum trial. The judge gives you the choice of abandoning your client to face the fight of his life by himself or proceeding as his attorney via telephone. Reluctantly, you find a folding table to put your file on and try the case from your couch, unable to see or communicate privately with your client. You cannot see anything that is happening in court.
All you know is that the immigration judge, ICE prosecutor and interpreter are there.
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Read the rest of the article at the above link.
And here’s my good friend and former Georgetown Law colleague Leila, now at Tulane Law, with her plea in Slate for some sanity and humanity on unnecessary and demonstrably harmful and dangerous continued incarceration of children in DHS’s “New American Gulag.”
With nearly 3,000 deaths and more than 160,000 infected by COVID-19 in the United States, it’s clear no one will be spared from impacts of the pandemic. In the past week, four children in immigration detention and seven employees of the Office of Refugee Resettlement who work in children’s detention facilities in New Jersey and Texas tested positive for the virus. Doctors working with detained immigrants have warned members of Congress that immigrant detention centers pose a “tinderbox scenario,” where social distancing precautions are impossible.
Two separate lawsuits are asking federal courts to force the release of unaccompanied children as well as families in immigrant detention, citing the grave health risks of contracting the coronavirus and spreading the disease. These risks are particularly serious because of the confluence of factors in family detention centers: crowded quarters, limited cleaning supplies, and the influx of new families into the detention centers. While it is understood children are usually less at risk of serious complications from COVID-19, a handful of children in the U.S. with COVID-19 have died in the past few days, and children may be more likely to more rapidly spread the disease.
Instead of a public health–oriented response to COVID-19 in the immigration legal system, we are seeing political opportunism. The Trump administration is using the virus as an excuse to swiftly deport unaccompanied minors at the border, despite laws that require that children be allowed to have their cases heard first by an immigration judge. Similarly, the Department of Justice is defying public health guidelines by forcing judges, attorneys, and immigrants to appear in select immigration courts across the country, despite positive COVID-19 tests from court personnel and risks inherent to crowded courtrooms, in order to continue deportation proceedings.
This mistreatment of children is not new. Before the outbreak, children were finding themselves in an increasingly punishing immigration legal system—where they had been separated from their parents, detained in record-breaking numbers for longer periods of time, and held in shocking and abusive detention conditions, including “dog cage” holding cells without mattresses, overflowing toilets, and frigid temperatures. Children do not have to be held in these conditions; unaccompanied children can and should be released more expeditiously to live with family in the U.S., and children detained with parents could be released as a family unit to pursue their legal case outside of detention.
Detained children have experienced forced hunger, dehydration, and sleeplessness.Holly Cooper, an attorney representing detained children, stated: “In my 22 years of doing visits with children in detention I have never heard of this level of inhumanity.” One 15-year-old boy, detained at the jail-like Shenandoah Valley facility, wrote “I want us to be treated as human beings.”
As a law professor and immigration attorney for more than a decade, I have seen firsthand how the immigration system mistreats children. In a recent law journal article, I argue adultification bias can help explain the mistreatment of immigrant children, who are largely teenagers of color. Adultification is the phenomenon whereby children of color are perceived as more adultlike and therefore less innocent than white peers. Adultification has created systemic harm for children of color within public systems like education, juvenile justice, and child welfare. In particular, the disproportionate rates of arrests, adjudications, and sentencing for children of color within the juvenile justice system has been studied closely.
Immigration laws were not designed to protect children. In fact, only a few areas of the law consider the special circumstances of children. The Flores settlement sets minimum standards for detaining minors, limited to children under 18. Under Flores, children should be released as soon as possible to family, when feasible. Furthermore, the Office of Refugee Resettlement, not U.S. Immigration and Customs Enforcement, is tasked with the custody of detained unaccompanied minors. According to legislative history, this is because ORR, under the Department of Health and Human Services, has more expertise in child care. Another child-focused measure is the Trafficking Victims Protection Reauthorization Act of 2008, or TVPRA, which expands legal protections for children including in the areas of asylum law and special immigrant juvenile status, a pathway to legal permanent residence and citizenship available for some children. Lastly, the government has issued guidelines for children’s cases to improve immigration court procedures.
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Read the rest of Leila’s article at the link.
“Adultifiation,”“Adjudication Bias,”“Dred Scottification,”“dehumanization,” it’s all pretty much the same thing. As human beings, we must ask ourselves every day why have we empowered the cowardly bullies of the Trump regime to commit what are essentially “crimes against humanity” against the most vulnerable among us, their courageous representatives (about the only folks in the country brave enough to stand up for all of our Constitutional and human rights), and even their own employees? Compare their brave performance with the complicity of many Federal Judges, all the way up to the Supremes, and many legislators who stand by and watch these preventable and outrageous human and legal disasters occur, yet do nothing to stop them!
Why do we have the best and brightest legal and public health minds in the country pleading with the regime to take straightforward, common sense, prudent steps that even a minimally competent government would have taken long before now? How have we allowed the kakistocracy and the wanton cruelty and “malicious incompetence” they inflict on almost everything they touch become the “face of America?”
Due Process Forever! Vote Like YOUR Life Depends On It This November; Because It Does!
The United States immigration regime has a long and sordid history of explicit racism, including limiting citizenship to free whites, excluding Chinese immigrants, deporting massive numbers of Mexican immigrants and U.S. citizens of Mexican ancestry, and implementing a national quotas system preferencing Western Europeans. More subtle bias has seeped into the system through the convergence of the criminal and immigration law regimes. Immigration enforcement has seen a rise in mass immigrant detention and deportation, bolstered by provocative language casting immigrants as undeserving undesirables: criminals, gang members, and terrorists. Immigrant children, particularly black and Latino boys, are increasingly finding themselves in the crosshairs of a punitive immigration system, over-policing within schools, and law enforcement, all of which can be compounded by racial biases and a lack of special protections for youth in the immigration regime. The confluence of these systems results in a trajectory that has been referred to as “the school to deportation pipeline.”
Gang allegations in immigration proceedings are an emerging practice in this trajectory. Using non-uniform and broad guidelines, law enforcement, school officials, and immigration agents may label immigrant youth as gang-affiliated based on youths’ clothes, friends, or even where they live. These allegations serve as the basis to detain, deny bond, deny immigration benefits, and deport youth in growing numbers. This Article posits that gang allegations are a natural outgrowth of the convergence of the criminal and immigration schemes, serving as a means to preserve racial inequality. This Article further suggests excluding the consideration of gang allegations from immigration adjudications because their use undermines fundamental fairness. Finally, this Article proposes a three-pronged approach to counter the use of gang allegations, including initiatives to interrupt bias, take youthfulness into account, and increase access to counsel in immigration proceedings.
Hlass, Laila, The School to Deportation Pipeline (2018). Georgia State University Law Review, Vol. 34, No. 3, 2018; Tulane Public Law Research Paper No. 18-1. Available at SSRN: https://ssrn.com/abstract=3132754
HERE ARE SOME “KEY QUOTES:”
“To be sure, the problem of gang violence in this country is a serious one. It is a problem that requires sustained attention to the complex (and diverse) sociological and neurological reasons that young people decide to associate with gangs or, as the case may be, disengage from them.27 Those concerns, however important, are beyond the scope of this Article. Instead, the goal of this Article is to shed light on the practical realities faced by immigrant youth caught in the school to deportation pipeline, where entrenched biases and insufficient procedural safeguards virtually guarantee their removal based on gang affiliation, no matter how flimsy the evidence supporting that label.28”
. . . .
“Gang allegations in immigration proceedings are part of the immigration regime’s long and ignoble history of explicit and implicit racism. Immigrant children, particularly youth of color, increasingly find themselves in the crosshairs of a punitive immigration system and subject to over-policing within schools and by law enforcement. These factors converge with existing racial biases and a lack of special protections for youth in the immigration regime, creating a perfect storm. To address this problem, gang allegations and related evidence should be excluded from immigration adjudications due to their unreliability and prejudicial nature. Furthermore, safeguards must be implemented to address this phenomenon, particularly as gang allegations appear to be on the rise. The immigration agency should attempt to interrupt adjudicator bias through education, improved decision-making conditions, and data collection. Secondly, youth should explicitly be a positive factor in discretion and bond decisions. Finally, to stall the school to deportation pipeline, children should have access to representation in immigration adjudications.”
AND, HERE’S A LINK TO THE FULL ARTICLE IN THE GEORGIA STATE UNIVERSITY LAW REVIEW:
Laila was my colleague at Georgetown Law when she was a Fellow at the CALS Asylum Clinic. In fact, she was a “Guest Lecturer” in my Immigration Law & Policy class.
Although Laila takes the much more scholarly approach, I have been saying consistently that this Administration’s harsh rhetoric and strictly law enforcement approach to diminishing the power of gangs is not only likely to fail, but is almost guaranteed to make the problems worse. Indeed, it’s basically an “on rhetorical steroids” version of the gang enforcement policies that have consistently been failing since the Reagan Administration.
But, we now have folks in charge who glory in their ignorance and bias. Consequently, they refuse to learn from past mistakes and will not embrace more effective community-based strategies that over time would deal with the causes of gang membership and help reduce gang violence.
