"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.
GW Law Immigration Clinic Director Professor Alberto Benítez & Co-Director Paulina Vera
Professor Alberto Benitez at the GW Immigration Clinic reports:
Friends,
Our friend, colleague, and alum Paulina Vera shared this story. Congratulations Daniel!
“A current Immigration Judge shared that he spoke to his colleague, another Immigration Judge (“IJ”), about a recent virtual hearing handled by student-attorney, Daniel Fishelman ’22. IJ complimented the Clinic’s preparation and Daniel’s performance, stating that even though it was for a short matter, she was impressed by the Clinic. This was the Clinic’s first appearance before IJ. Please join us in congratulating Daniel on completing his first hearing and getting positive feedback from Immigration Judges!”
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Many congrats to student-attorney, Daniel Fishelman ’22 on his first engagement as a member of the NDPA!👍🏼😎
Also, congrats to my friends and “due process role models” Alberto and Paulina! So proud that part of Paulina’s “immigration justice journey” went through the Arlington Immigration Court, where she served as an intern.
Alberto and Paulina tell me that after their “standard rigorous prep session” with Daniel, he definitely was “QRFPT” — “Quite Ready For Prime Time!” 😎 That’s as opposed to “NQRFPT” (“Not Quite Ready For Prime Time”) ☹️ — something to be avoided in Immigration Court or any other type of litigation!☠️
This case illustrates what I found on the bench: that “short cases” are almost always the result of superior scholarship, meticulous preparation, and informed dialogue by counsel for both parties before getting to court.
That’s why one grossly underutilized tool for reducing backlogs is investing in and encouraging more and better trained representation for individuals appearing in Immigration Court.
As statistics have shown time after time, universalrepresentation is also the key to achieving high appearance rates.
Additionally, constructing court dockets and scheduling cases locally with input from both counsel is a way of reversing the backlog building “Aimless Docket Reshuffling” (“ADR”) produced by attempting to manage dockets from “on high.” ADR usually results from EOIR unilaterally attempting to satisfy DHS enforcement aims or to accommodate “disconnected political agendas and ill-advised gimmicks” generated by DOJ and White House politicos — invariably clueless about the realities of Immigration Court practice!
The three things always left behind by ADR: due process, fundamental fairness, and practical efficiency!
Sloan, Tupper: Immigrants deserve right to legal representation
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Sloan, Tupper: Immigrants deserve right to legal representation
Andrea Sloan and Leni Tupper
June 06 2021
The Honorable Andrea Sloan is a retired Portland Immigration Court judge. Leni Tupper is a former attorney adviser in the Portland Immigration Court, and current co-director of Portland Community College’s CLEAR Clinic and co-chair of PCC’s Paralegal Program.
ANDREA SLOAN
LENI TUPPER
Legal representation in immigration court can mean the difference between someone being allowed to remain home, safely in the United States, or being permanently torn from their family, deported and placed in harm’s way.
It can mean access to interpreters in a person’s correct language and dialect so they can fully express their experiences, trauma, and fear. It can mean access to the mental health services and diagnosis necessary to support their wellbeing and their immigration case. Most importantly, it can mean the realization of a right that everyone should be guaranteed: the right to a fair trial.
Instead, most non-citizens in immigration court proceedings are left to navigate the system, commonly referred to as second in complexity only to the U.S. Tax Code, completely alone. That includes children, sometimes very young children. The U.S. immigration court system, unlike our criminal legal system, does not provide court-appointed counsel to immigrants facing deportation who are unable to afford a lawyer. Only 37% of all immigrants and 14% of detained immigrants are represented by attorneys in immigration court, according to a 2016 American Immigration Council study.
Most importantly, immigrants with legal representation are far more likely to be released from detention and succeed in their removal defenses than unrepresented people. According to an AIC study, 63% of non-detained represented immigrants were granted relief in immigration court, while only 13% of unrepresented immigrants were. And tellingly, people appearing before the Portland Immigration Court without legal representation are nearly five-and-a-half times more likely to lose their cases and be deported than those who have an attorney.
As a retired immigration judge and former attorney advisor in the Portland Immigration Court, we have seen these struggles firsthand. We know the trauma that our immigration system inflicts on people, often with an existing history of trauma. And we know that legal representation can lessen the trauma of navigating this virtually incomprehensible system.
But most importantly, we know that legal representation can help avoid the ultimate trauma of deportation. The lack of legal representation for people in the immigration court system, which decides “death penalty cases in a traffic court setting,” is unsustainable not only for the vulnerable members of our community who are subject to its whims, but for those who work in it as well.
Our immigration legal system should be based on facts, law, and justice, not access to wealth and resources. If passed, House Bill 3230 will allow our immigrant community members to exercise their full right to due process under the law and provide access to legal representation. Oregon could be a national leader in ensuring immigrant rights by providing access to counsel.
Please join us in supporting HB 3230 to make this vision of Oregon a reality.
The Honorable Andrea Sloan is a retired Portland Immigration Court judge. Leni Tupper is a former attorney adviser in the Portland Immigration Court, and current co-director of Portland Community College’s CLEAR Clinic and co-chair of PCC’s Paralegal Program.
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Given the lack of responsiveness by the DOJ to our suggestions and recommendations, we’re going to have to fight for due process on all fronts. State and local universal representation programs are a huge opportunity.
Represented individuals are more likely to be able to hold the Government accountable and force change that ultimately will save lives and benefit all.
Thanks for speaking out so forcefully and articulately, Andrea and Leni!
The Vera Institute of Justice (Vera) recommends that the Biden administration draw from time-tested models, data, and knowledge to build a federally funded, universal legal defense service that provides universal, zealous, and person-centered defense to all immigrants. This federal defender service should be modeled on the criminal federal defender system, which is generally regarded as more successful at realizing the values of high-quality, appropriately funded representation than its state counterparts. Vera makes this recommendation based on years of experience building and managing national immigrant legal defense programs. A federal defender service built on these core values is effective and achievable, and it would help ensure that the lives, liberty, and community health of immigrants are given full and equal protection under the law regardless of status. This policy brief highlights that a federal defender service would address systemic inequities of the immigration system and has widespread support in the United States.
A federally funded, universal legal defense service that provides universal, zealous, and person-centered defense to all immigrants would help address systemic inequities within the immigration system, and would represent a safeguard that is already proven, effective, achievable, and has widespread public support.
Publication Highlights
Vera has already worked with government partners, legal defense providers, advocates, and impacted people to create, test, and refine national immigrant legal defense programs grounded in universality, zealousness, and person-centeredness.
A federal defender service would combat the burden of racist immigration policies that most severely impact immigrants with criminal convictions, poor immigrants, Black immigrants, and immigrants with severe mental health conditions.
Without a federal defender service, tens of thousands of immigrants, including long-term permanent residents, asylum seekers, and parents of U.S.-citizen children, must face a hostile immigration system without representation.
Key Facts
Previous
Immigrants with attorneys are also
10 times more likely
to establish their right to remain in the United States than those without legal representation.
77%
of the 195,625 people whose immigration court cases completed in Fiscal Year 2019 did not have legal representation.
Immigrants with attorneys are
3.5 times more likely
to be granted bond than those without representation.
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You can download the full report at the above link.
The Biden Administration should work into this effort the already operating, highly acclaimed, innovative VIISTA program pioneered and developed by Professor Michele Pistone at Villanova Law for training of non-attorney representatives to provide high-quality representation to asylum seekers in Immigration Court.
Lots of the groundwork for a universal representation program has already been done! It’s about putting the right folks from outside Government in charge and building on the established foundation to take it to another level.
Professor Ingrid Eagly UCLA Law PHOTO: TwitterSteven Shafter, Esquire Managing Attorney Esperanza Immigrant Rights Project Los Angeles, CA Photo: Esperanza website
Aaron Reichlin-Melnick Policy Counsel American Immigration Council Photo: TwitterMe
PRESS RELEASE
11 Years of Government Data Reveal That Immigrants Do Show Up for Court
WASHINGTON—A new report released today by the American Immigration Council examines 11 years of government data on the rate at which immigrants appear for hearings in U.S. immigration court. The report, “Measuring In Absentia Removal in Immigration Court,” concludes that an overwhelming 83% of immigrants attend their immigration court hearings, and those who fail to appear in court often did not receive notice or faced hardship in getting to court.
As the new administration of President Joe Biden considers how to reform the immigration system, including the immigration courts, this report reveals how reliance on detention, access to legal representation, and immigration judges’ docket management impact immigrants’ appearance rate.
The report draws on government data from 2,797,437 immigration court removal proceedings held between 2008 to 2018. It documents how individuals who were never detained and those who were released from detention proceeded through court and what obstacles they faced in pursuing their immigration cases.
The report finds that people released from immigration detention and individuals with attorneys overwhelmingly attend their hearings. Data also show that immigration judges have a vital role in maintaining due process. The findings further demonstrate that the creation of an independent structure for the immigration courts would help reduce the prevalence of unwarranted in absentia removal orders and give immigration judges more discretion in managing their dockets and individual case decisions.
The main findings of the report include:
83% of nondetained immigrants with completed or pending removal cases attended all of their hearings.
96% of nondetained immigrants represented by a lawyer attended all of their hearings.
15% of those who were ordered deported because they did not appear in court successfully reopened their cases and had their removal orders rescinded. In some years, as many as 20% of all orders of removal for missing court were later overturned.
Individuals who apply for relief from removal have especially high rates of appearance.
Appearance rates vary strongly based on the immigration court’s location.
The Executive Office for Immigration Review’s method for measuring the rate at which immigrants fail to appear in court presents a limited picture of the frequency of missed court appearances.
“The empirical research presented in this report debunks the myth that immigrants don’t show up for court,” said Ingrid Eagly, professor of Law at UCLA School of Law. “Relying on the government’s own immigration court data, co-author Steven Shafer and I find that, since 2008, 83% of all immigrants in nondetained deportation cases have attended all of their court hearings. In addition, over the 11 years of our study, 96% individuals represented by an attorney attended all of their court hearings.”
“Today’s report verifies what those who have worked in the immigration court system already knew: immigrants overwhelmingly show up in court. We hope that this data finally puts to rest a false narrative about immigrants’ appearance rates that past administrations used to justify restrictive and cruel immigration policies,” said Aaron Reichlin-Melnick, policy counsel at the American Immigration Council. “After previous administrations spent years funding immigration enforcement to address a small set of individuals who miss court, the Biden administration has the opportunity change course. To ensure even higher appearance rates, the new administration should focus on updating immigration court technology, providing better resources to orient immigrants, and working to ensure that all immigrants navigating our removal system are represented by counsel. As Congress debates immigration reform, this report shows that it’s time to revisit harsh and punitive laws that require judges to enter deportation orders for a single missed hearing and which limit the ability of the government to appoint counsel.”
“The findings of this timely report confirm what many of us formerly on the immigration bench have known for years: represented asylum seekers appearing before fair, knowledgeable judges show up for virtually all of their immigration court hearings,” said Paul Wickham Schmidt, former immigration judge and board member for the Board of Immigration Appeals. “The findings refute one of the many ‘big lies’ and ‘bogus narratives’ promoted by the last administration to demean and dehumanize asylum seekers and wrongfully deprive them of their legal and constitutional rights. The Biden administration should pursue changes that would provide immigration judges greater independence and discretion and support the creation of an independent structure for the immigration courts.”
Lies promoted by Government officials and turned into cruel, counterproductive, and biased policies cost lives and undermine our system of justice!
A stunning 96% of represented respondents appear for all hearings! The obvious step for the Biden Administration is to “repurpose” resources squandered by the defeated kakistocracy’s cruel, expensive, ineffective “enforcement gimmicks” like detention in the “New American Gulag,” ludicrous Immigration Judge “dashboards,” walls, bogus protocols, and illegal anti-asylum rules and instead invest in public-private partnerships to achieve universal representation. Building on existing programs, it should be possible to get all respondents represented by trained and competent counsel or accredited representatives.
Notably, Professor Michele Pistone @ Villanova already runs VIISTA, an innovative, first class asylum litigation training program for accredited representatives. Put some Federal grant money into expanding it to meet the need for representation throughout America. These are “obvious steps” ignored by a captive “court system” run by malicious incompetents implementing a White Nationalist agenda.
Professor Michele Pistone Villanova Law
Combined with a restoration of the rule of law at EOIR and rational DHS enforcement priorities, that’s the way to establish manageable Immigration Court dockets compliant with Due Process and fundamental fairness. Create a model court system that will be a source of pride, rather than a national disgrace.
Of course a legislatively-enacted, independent, professionally administered expert Article I Immigration Court is absolutely necessary. But, due process and fundamental fairness can’t wait! Lives and futures, not to mention our national values, are at stake. Judge Garland must end the dysfunction and start making urgently needed improvements @ EOIR immediately!
Removing (former) Director McHenry — who promoted the kakistocracy’s anti-immigrant myths, bogus statistics, and “worst management practices” — is a great start. But, it’s certainly not the end of the urgent changes that must be made to implement Due Process and professional court administration at EOIR. In particular, the current BIA is a due process, human rights, and asylum expertise “disaster zone!”
Sent: Wednesday, January 15, 2020 1:47 PM Subject: [NY Asylum] New York introduces right to universal representation legislation
Hi all,
Apologies for the cross-post but we are very excited to announce that today New York introduced a bill that will create a statutory right to counsel for individuals facing deportation and live/are present in New York. The campaign is in the beginning stages and we know that we have a lot of educating and other ground-laying work ahead of us, but we also want to acknowledge the tremendous amount of work that it took, both in our State and nationally, to get us to a point in the conversation where drafting and introducing this bill became possible.
The Access to Representation Act to create a statutory right to counsel for immigrants facing deportation in New York. You can see the press release HERE and read a summary of the bill HERE.
It’s a beginning. And, something that won’t require action from the screwed-up Feds. The New Due Process Army keeps fighting for American justice, for everyone in America, in the age of Trump!
