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And now, part 2 of my interview with Paul Wickham Schmidt (if you missed part 1, it is here):
ASYLUMIST: Your Chairmanship ended in April 2001, a few months into the George W. Bush Administration. What happened?
PWS: John Ashcroft was President Bush’s first Attorney General. He was advised by Kris Kobach, who was then at DOJ. Kobach is now Secretary of State in Kansas and is well known for his outspoken restrictionist positions. Ashcroft and his people did not like some of the Board opinions, and they particularly did not like Board Member Lory Rosenberg and several others of us. They apparently thought the Board was too liberal, even though the so-called “liberal wing” was consistently outvoted on almost all meaningful precedents where there was a “split Board.”
Paul Wickham Schmidt relaxes after being grilled by The Asylumist.
I’d add that the dissenters have eventually been proved right by subsequent decisions from the Federal Courts and even from the BIA itself on issues like protection for domestic violence victims, more critical examination of IJ credibility decisions, application of the categorical approach and modified categorical approach to crimes, and a less restrictive approach to CAT protection. Board Member Rosenberg was known for being quite outspoken in separate opinions criticizing some of the BIA’s jurisprudence. But, she often was proved right over time. Indeed, the Supreme Court favorably cited one of her dissenting opinions, something that, to the best of my knowledge, no other Board Member has ever achieved. So, in many ways we were punished for being ahead of our time.
About a week after Ashcroft got there, EOIR Director Kevin Rooney told me that the DOJ leadership wanted me out as the Chair. It wasn’t Kevin’s decision. He made it clear that he was just the messenger. Because I was a career member of the Senior Executive Service, this decision probably violated Civil Service rules which would have required the new Administration to keep me in place for a period of time – perhaps 120 days – before booting me to another position. But I realized that if Ashcroft didn’t want me, I could not survive in the job, and dislodging me might hurt the BIA by provoking an attack on the entire institution to justify removing me. I wanted to resolve the situation; not stretch it out, and I wanted something workable. If I had resisted, it might have been a little hard to justify moving me, since I had all outstanding performance reviews with SES bonuses up until that point, but then they could have started attacking the Board, and I did not want that.
I was not ready to go back into private practice. Also, I did not want to move to another location — at the time, I was taking care of my dad, who was in a retirement home near the BIA. Also, I wanted to avoid becoming a “hall-walker” at the DOJ.
I asked Kevin what I could do. I thought (completely naively as it turned out) that they might need some loyal opposition, so I asked whether I could step down as Chair and go to the BIA as a Board Member. Eric Holder, Deputy AG, a Clinton appointee at DOJ, and future Attorney General under President Obama, was still there during the transition. If he had been gone, who knows what would have happened? Also, there had been a regulation change creating more BIA positions. So we agreed that I would step down as Chair, and with Eric Holder’s assistance, I become a BIA Board Member.
It all happened quickly—in a week. I announced that I was stepping down as Chair. It was a fake-y announcement. I said I wanted to spend more time adjudicating cases and less time managing. Lori Scialabba, who was one of my Vice Chairs, and is now the Deputy Director of USCIS, became Acting Chair. I did not change my views about the law; I regularly voted against the majority on issues that were important to me, particularly asylum and other protection issues. But I continued doing my job.
Then came the reorganization where Ashcroft cut Board Members. He removed Board Members John Guendelsberger, Cecelia Espenosa, Lory Rosenberg, Gus Villageliu, and me. Technically, Lory left before the final cut, and another Board Member who undoubtedly would have been axed, applied for a voluntary transfer to an IJ position in another city. I learned about it when Kevin Rooney (who at one point was my career hero) called me up to his top floor office. He was shaking, and he told me, “You did not make the cut.” He said, “They did not like some of your opinions, particularly dissents where you joined with Lory Rosenberg.”
There was no application or interview process to decide who should stay and who should go. There was no interview. The reason I was cut is because they did not like my opinions—Ashcroft apparently wanted a cowed, compliant Board where nobody would speak up against Administration policies or legal positions that unfairly hurt migrants or limited their due process.
Part of the stated rationale for the reorganization was that there were too many Board Members and it was too contentious, and therefore not “efficient.” In the Government immigration world, “efficiency” is often a buzzword for actions that take away or reduce the rights of migrants. But the workload clearly demanded more than the 12 Board Members that Ashcroft left. A few months after the cut, they had to start using BIA staff attorneys as “temporary” Board Members because they needed more Board Members to do the work. Some of these attorneys eventually became Board Members. So they were upgrading staff, rather than doing independent hiring. Basically, this was a cover up for Ashcroft’s inappropriate and politically motivated reduction in permanent Board Members. The real reason for the reduction in the BIA’s size was to eliminate opposing views from the dialogue.
ASYLUMIST: How do you think these changes have affected the Board?
PWS: Well, the picture has not been pretty. The summer of 2000 was the last time that an outsider was appointed to the Board. In my view, many of the current Members are “going along to get along,” because the clear message of the Ashcroft cuts was that resisting the majority, particularly speaking up for the rights of migrants, could be career threatening. The Board has abandoned the pretense of diversity. Also, the idea that they can operate effectively with a smaller number of Members is simply a ruse. The BIA uses temporary Members to fill the gap. But they cannot vote en banc, so this truncates the en banc process. The Board ends up rubber-stamping cases. Also, since mostly three-Member panels, rather than the en banc Board, now issue precedent decisions, the majority of Board Members are able to escape accountability on most such cases because they don’t have to take a public vote. Only the votes of the three panel members are publicly recorded. The BIA also seldom hears oral argument anymore, so it has become very distant and inaccessible to those most affected by its decisions. Moreover, quietly and gradually, the BIA has had to add additional permanent Board Members because the Ashcroft cuts left the BIA short of the number required to do the work. But, there never has been a public acknowledgement by EOIR or the DOJ of what Ashcroft did and why it has been necessary to take corrective action.
I respect the current Board Members, indeed many of them are personal friends, and I certainly recognize the difficulties of their job. But, almost none of the current Board Members have substantial achievements in the private immigration sector, particularly in the area of asylum scholarship and asylum advocacy. They are all appointed from within Government, which is often viewed as a way of bringing in reliable “company people,” who won’t rock the boat. This is supposed to be the Supreme Court of immigration. But it is not actively trying to attract the best and brightest from all sectors of immigration practice, including private practice, academics, clinical professors, and NGO leaders, in addition to those with substantial achievements in government service, in a fair competitive selection process.
One problem is that Board Member positions are less attractive today because they are less visible, less secure, and viewed by some as an assembly line operation after the Ashcroft reforms. A Board Member can be moved to the FOIA unit if they are out of political favor. As a result, the Board doesn’t get the type of outside applicants it really needs – partners in major law firms, tenured academics, respected clinical professors, and high ranking NGO officials, at a time when our system needs their voices more than ever. The example set by Ashcroft is continuing—the current Administration has not changed that. Board Members do not rock the boat, and they all too often do not reflect or fully understand the needs of other constituencies from outside government service, particularly the needs of asylum seekers and others seeking protection in today’s chaotic Immigration Courts.
Maybe the BIA has reduced the backlog, but that has been done with smoke and mirrors. The quality of work has fallen off. They reduced the backlog by compromising the most important function of Board: Guaranteeing due process to individuals appearing in Immigration Court, which requires courageous public deliberation and spirited dialogue on the most important and controversial issues, where dissenting positions are accepted as an essential part the judicial dialogue and therefore supported, rather than suppressed. In my view, since the Ashcroft purge, the BIA has become a deliberative body that no longer publicly deliberates. That’s bad for the public, bad for the justice system, bad for due process, and, actually, bad for the Board Members themselves
ASYLUMIST: And what happened to you, after the “purge”?
PWS: I thought about volunteering to become an IJ, but then I would have had to leave Washington, DC. I did not want to leave my community, plus my dad was still in the area. Kevin floated the idea of early retirement, but I did not want that either.
EOIR created non-judicial positions for some of the “cut” Board Members, like glorified staff attorney positions or senior jobs in the General Counsel’s Office. To show how ludicrous this was, at a time when the Board needed experienced judges more than ever, some of the top judges in the system, who had been selected following a competitive nationwide search, were sent off to perform non-judicial work at the same salary. There was an almost immediate adverse reaction from the Circuit Courts as the Board launched many “not quite ready for prime time” decisions into the judicial review process.
Kevin said I could become an Assistant Chief Immigration Judge (“ACIJ”), but no position was open at the time. I waited for weeks. I was going to be out as a Board Member, but I had not been reassigned. EOIR sent me to IJ training school, but I was still part of the BIA. I went to en banc meetings, but I sat mute. After the IJ training, I did not have a start date or a position. I was a “lame duck,” and I was angry and frustrated.
Finally, I told Kevin that I had to go. There was no reason for me to be there. My things were packed. But then he told me that Ashcroft had directed that I be moved to an IJ position in Arlington, Virginia. He told me that a vacancy had been created overnight, and the Attorney General moved me to the top of the “waiting list.” The Arlington Court was a desirable posting, so there was a waiting list for internal transfers there. Kevin said that someone decided I should be in an adjudication position. It was a huge break for me to get out of the Headquarters “Tower” in Falls Church. I doubt that I would have remained at EOIR as long as I did if I had been in the Tower. I had too much pent up anger, and the Tower would have reminded me of it every day. The Arlington Immigration Court was a great chance for me to put all of that behind me.
I think someone went to bat for me at the Department; I had no relationship with the Attorney General, so I theorize that someone must have intervened on my behalf to put me in Arlington. So, I’m probably the only Immigration Judge who got the position without ever applying for it.
ASYLUMIST: We’ve only covered about two-thirds of your career, but I know you need to get back to the really important things in life, like your kayak, so I’ll ask one last question: Suppose you were the “Immigration Czar,” what would you do with EOIR?
PWS: As you know from history, being a “Czar” of anything can be a life-limiting opportunity. Having had several “career-limiting opportunities” already, I think I’ll take a pass on that job. But seriously, I’m glad you asked the question. Here is my “five-point program” for a better Immigration Court–one that would fulfill its vision, drafted by a group of us when Kevin Rooney was the Director: “Through teamwork and innovation being the world’s best tribunals guaranteeing fairness and due process for all.”
First, and foremost, the Immigration Courts must return to the focus on due process as the one and only mission. That’s unlikely to happen under the DOJ – as proved by over three decades of history, particularly recent history. It will take some type of independent court. I think that an Article I Immigration Court, which has been supported by groups such as the ABA and the FBA, would be best. Clearly, the due process focus has been lost when officials outside EOIR have forced ill-advised “prioritization” and attempts to “expedite” the cases of frightened women and children from the Northern Triangle who require lawyers to gain the protection that most of them need and deserve. Putting these cases in front of other pending cases is not only unfair to all, but has created what I call “aimless docket reshuffling” that has thrown our system into chaos. Evidently, the idea of the prioritization is to remove most of those recently crossing the border to seek protection, thereby sending a “don’t come, we don’t want you” message to asylum seekers. But, as a deterrent, this program has been spectacularly unsuccessful. Backlogs have continued to grow across the board, notwithstanding an actual reduction in overall case receipts.
Second, there must be structural changes so that the Immigration Courts are organized and run like a real court system, not a highly bureaucratic agency. This means that sitting Immigration Judges, like in all other court systems, must control their dockets. If there are to be nationwide policies and practices, they should be developed by an “Immigration Judicial Conference,” patterned along the lines of the Federal Judicial Conference. That would be composed of sitting Immigration Judges representing a cross-section of the country, several Appellate Immigration Judges from the BIA, and probably some U.S. Circuit Judges, since the Circuits are one of the primary “consumers” of the court’s “product.”
Third, there must be a new administrative organization to serve the courts, much like the Administrative Office of the U.S. Courts. This office would naturally be subordinate to the Immigration Judicial Council. Currently, the glacial 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 like ours. The judicial hiring process over the past 16 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.
Fourth, as you know, I would repeal all of the so-called “Ashcroft reforms” and put the BIA back on track to being a real appellate court. A properly comprised and functioning BIA should transparently debate and decide important, potentially controversial, issues. The BIA must also “rein in” 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 and the BIA itself in Mogharrabi are not being followed.
Fifth, and finally, the Immigration Courts need e-filing NOW! Without it, the courts are condemned to “files in the aisles,” misplaced filings, lost exhibits, and exorbitant courier charges. Also, because of the absence of e-filing, the public receives a level of service disturbingly below that of any other major court system. That gives the Immigration Courts an “amateur night” aura totally inconsistent with the dignity of the process, the critical importance of the mission, and the expertise, hard work, and dedication of the judges and court staff who make up our court.
ASYLUMIST: Very ambitious! I’d love to hear more, but that would probably take another day or two.
PWS: Thanks for the offer. But, all things considered, I’m heading out onto Linekin Bay in my kayak. Due process forever!
ASYLUMIST: Thank you so much for your time and your thoughts. Happy paddling.
Paul Wickham Schmidt served as Chairman of the Board of Immigration Appeals (“BIA”) from 1995 to 2001. He was a Board Member of the BIA from 2001 to 2003, and served as an Immigration Judge in Arlington, Virginia from 2003 until his retirement earlier this year. He also worked in private practice and held other senior positions in government, including Deputy General Counsel and Acting General Counsel at INS. The Asylumist caught up with Judge Schmidt in Maine, where he has been enjoying his retirement, and talked to him about his career, the BIA, and the “purge” of 2003.
ASYLUMIST: How did you get started in the field of immigration?
Since he retired, Judge Schmidt has been doing a lot of this (eat your heart out, Burmanator!).
PWS: My wife, Cathy, and I had both spent our whole lives in Wisconsin. After I graduated from law school, we wanted to go somewhere else. Because I went to law school in Wisconsin, I did not have to take the bar—I was granted automatic admission to the Wisconsin bar. I’ve actually never taken a bar exam. I knew if I got a job with the federal government, I would not have to take a bar, so I was interested in working for the feds. Also, I had an uncle from Wisconsin who went to DC to work for the Roosevelt Administration and stayed for an entire career, and that also attracted me to federal service.
I applied to the Department of Justice through the Honors Program, but they rejected me. At the time, the Board did not actively recruit from the Honors Program, but they looked at the pool of applicants, liked my writing experience, and asked me to apply. I didn’t know anything about immigration, so the first thing I did was to go to the law school library and learn about immigration law. Then, we drove to Washington, DC for the interview. I met the Chairman, Board Members, and the Executive Assistant. Following an afternoon of interviews, the Chairman, Maurice A. “Maury” Roberts, a legendary immigration “guru,” called me in and said, “We discussed it at conference, and you’ll do.” With that auspicious beginning, I was hired. It was 1973. At the time, the BIA had nine staff attorneys and five Board Members.
I liked the job. It was a great group of people, and I learned a lot about the law. Chairman Roberts was a mentor to me and my office-mate. I also worked with the late Lauri Steven Filppu, who became a close friend, and who went on to become a Deputy Director of the Office of Immigration Litigation and then served with me on the BIA.I liked the human interest element and that it involved creative thinking. However, there was an ideological divide among the Board Members. At that time, Board Members were political appointees, rather than career appointments as they are today. The most senior Board Member had been appointed by President Truman. Chairman Roberts was appointed at the end of the Johnson Administration. I believe the other three Board Members were appointed during the Nixon Administration and did not have prior immigration backgrounds. Also, in those days, oral argument was a right, and the Board had four days of oral argument each week.
While I was there, Lauri Filppu and I helped form the BIA employees union, which was led by our friend and colleague Joan Churchill. She later became an Immigration Judge in Arlington and served with me there for several years before her retirement. One impetus for forming the union was an incident where the Board librarian was fired in the middle of our Christmas party. We thought that was harsh. The union still exists today. Indeed, as Chairman, I later had to go “head to head” with the union on an arbitration relating to the assignment of offices.
ASYLUMIST: You started as BIA staff. How did you get to be Chairman of the Board of Immigration Appeals?
PWS: I left the BIA at the end of 1975. I felt I had done what I could do there, and the work was getting repetitive. I was ready for something new, and so I moved to the General Counsel’s office at INS. At the time, Sam Bernsen was General Counsel. He was an amazing guy, who started as a messenger on Ellis Island when he was 17 and worked his way up to the top ranks of the Civil Service. He was also a good friend of Chairman Roberts. I advanced in the General Counsel’s office, and by the end of the Carter Administration, I was the Deputy General Counsel and the Acting General Counsel.
The Deputy General Counsel basically ran the day-to-day operations of the INS’s nationwide legal program. The General Counsel during the Carter Administration, David Crosland (now an Immigration Judge in Baltimore) was the Acting Commissioner of the INS for about the last half of the Administration. At the time, I was only 31 or 32 years old.
In that period, we were re-organizing the legal program. The GC took over supervision of Trial Attorneys (they were previously supervised by the District Directors – they now are called “Assistant Chief Counsels”). We also replaced Naturalization Attorneys with paralegals. Some of these changes were controversial within the INS. I got yelled at a lot by some of the District Directors. But, I can yell pretty loud too. This was really the beginning of what today are the Offices of Chief Counsel at the DHS. And, I worked on legislation, including the Refugee Act of 1980, which brought me into contact with David Martin and Alex Aleinikoff who later became well known in the immigration and refugee world. Other big issues I worked on were the so-called Cuban Boatlift and the Iranian Hostage Crisis.
I continued as Deputy GC during the Reagan Administration. I served under General Counsel Maurice C. Inman, Jr., known as “Iron Mike.” He was a real character, but we got a tremendous amount accomplished together. It was more or less a “bad cop, good cop” situation. We completed the legal program reorganization, and I also helped plan and execute the transfer of the Immigration Judges out of INS and into a separate entity, which was the “birth of EOIR” in 1983. Mike left in 1986, and I became the Acting GC again, right at the time that IRCA was enacted. But, I felt like I had reached a dead end.
I applied for jobs at law schools, and I found a head-hunter. However, it was the “Old Girl Network” through Cathy, who was then the president of our co-op preschool, which led to my next job. I was offered a senior associate position at Jones Day, which was just starting an immigration practice. At that point, the Commissioner, Al Nelson, and the Attorney General, Ed Meese, offered me the GC job, which I had always wanted. But, I turned it down. I moved over to Jones Day, and remained there as a partner until 1992.
It was difficult to be an immigration attorney in a general practice firm, and so I eventually went to Fragomen, Del Rey, and Bernsen, where I succeeded my mentor Sam Bernsen as Managing Partner of the DC Office. I did mostly business immigration. While I liked private practice, and learned much that has been helpful in making me a better judge, I felt that business immigration was like working at a well-baby clinic: Highly stressful, but fundamentally routine. We had to do as many cases as we could, as quickly as possible, which made it challenging to take on interesting cases that did not generate significant fees or repeat business. The clients wanted more for less, and there was always pressure to charge more and more money to contribute to the success of the firm. In the end, I suppose my heart was not in business immigration. I liked my clients, my colleagues, and making more money for our family than I had in government, but eventually it was not as satisfying as government work.
Around this time, the BIA Chair position opened up. I liked the idea of being in charge, and I felt there were opportunities to be creative. But, there was a lot of competition for the job. I lobbied the people I knew for their support, and in the end, I was offered the position. I began work in February 1995. I definitely think my experience in the private sector was a significant factor in my getting the job.
The goal when I started was to make the Board into the “13th Circuit,” to make it more like a court, to expand the diversity and the number of Board Members, to publish more opinions, and to develop a more humane and realistic view of asylum law. There was a big backlog, and we needed more Board Members. Up until then, different Immigration Judges were being detailed to the BIA to help with the work, but this system was cumbersome and it was very expensive. The original plan was to expand the Board from five to nine Members, but with then Director Tony Moscato’s help, we managed to expand it to twelve Board Members (four panels of three Members each). Attorney General Janet Reno was receptive to expanding the BIA, and we also increased the staff significantly and set up a team structure with senior supervisors. While I was there, we also changed the appeals filing system so that people could file directly with the Board (instead of filing appeals with the local court), and we added bar codes to help organize the files (up until that time, staff spent a lot of time looking for lost files). All these changes required us to expand the legal and clerical staff. And, the BIA itself kept on growing, reaching a membership of more than 20 just before the Ashcroft purge.
The expanded Board also became more polarized. Essentially, the middle fell out of the Board shortly after the Kasinga case in 1996. Before then, I was often in the majority, but after that time, I was out-voted in most precedential decisions. I think the enactment of the IIRIRA at the end of 1996 also had something to do with it. By the time of the R-A- decision in 1999—one of the most disappointing cases of my tenure because the majority squandered the chance to show real judicial leadership, take the next logical step following Kasinga, and “do the right thing” for domestic violence victims—I was pretty firmly entrenched in the minority for en banc decisions. I therefore often had to write or join separate dissenting opinions, known as “SOPs” in BIA lingo.
ASYLUMIST: This brings up an interesting point. I’ve long felt that the BIA should issue more precedent decisions, to provide more guidance to Immigration Judges. Why doesn’t the Board publish more decisions? And how does the Board decide which cases will be published?
PWS: I think that following the “Ashcroft purge,” the BIA has become hesitant to delve into controversial issues, particularly those that might provoke dissent. During my time at the Board, we did publish more decisions. Indeed, in my first full year as Chair, in 1996, we published approximately 40 opinions, many with separate dissents and concurrences, on cutting edge issues like particular social group, credibility, AEDPA, and IIRIRA. By contrast, in 2015, the BIA published approximately 33 decisions, and neither the dialogue nor the range of issues was nearly as extensive. Even with a greatly expanded and often divided Board, in 1999, one of my last full years as Chairman, we published 50 precedents, many dealing with extraordinarily difficult and complex issues.
The idea later promoted by the “Ashcroft crowd”—that a very large, diverse, and often divided Board cannot produce timely, important guidance–is ridiculous. Any party could request that a case be designated as a precedent decision. But generally, the Board was not receptive to party requests. The Chair or the Attorney General could also designate a decision as precedential. In addition, by majority vote, any panel could recommend a case for en banc consideration, and a majority vote of the Board could designate a decision as precedential. Almost all of the precedents were the result of the en banc process.
Ironically, one the most common reasons for publication was because the majority wanted to “slam” the dissenters’ position. These tended to be cases that illustrated important points or new interpretations of the law. Also, when new laws went into effect, and we had to interpret new statutory provisions, we were more likely to issue a precedent decision. In fact, there was a lot of controversy on the Board surrounding the dissenting positions. The Members generally got along with each other, but there was a lot of stress related to differing viewpoints. Some Members felt that dissenters were attacking the BIA as an institution. My being in the dissent in a number of precedents strained my relationship with some of my colleagues who were almost always in the majority.
Perhaps this was a consequence of my decision to change the format of BIA decisions so they looked more like court decisions. Therefore, Board Members had personal responsibility for their decisions. This made Board Members more accountable for their decisions, but it also gave them more of a personal stake in each decision.
Unfortunately, the BIA today has abandoned one of its primary functions—to provide timely expert guidance on the INA. Instead, it now publishes mostly non-controversial stuff, unless a Federal Circuit Court orders the Board to enter a precedential decision (I call this, “Go fetch me a precedent”). The initiative for shaping immigration law has gone from the BIA to the Federal Courts. There needs to be reform. I think the Board should function like the 13th Circuit; instead, it is more like the Falls Church Service Center. There are far too many single Member decisions, and the single-Member decisions are all over the place. The Board should use three Member panels in all cases where the IJ decision is not suitable for summary affirmance. That’s the “original streamlining” that I instituted, and it was intended to increase dialogue and careful deliberation, not eliminate it, as has been the case under the misguided “Ashcroft reforms.”
The Board also needs to be independent, but I do not see the willingness in the DOJ to make that necessary change, which would require legislation. When the DOJ wants to resist the Circuit Courts, Congress or public scrutiny, they talk about the Board’s expertise. But when the DOJ addresses IJs and Board Members, they refer to them as just “DOJ Attorneys” -- employees who should follow the Attorney General. In other words, the DOJ’s external message is, “The BIA is like a court, so due process is provided and you should not intervene,” but the internal message to Immigration Judges and Board Members is, “You exist to implement the power of the Attorney General, you aren’t ‘real’ independent Federal Judges.”
ASYLUMIST: What other changes did you make at the Board while you were Chair?
PWS: We started doing more oral arguments, including oral arguments on the road (this is now prohibited by regulation). I thought if we were to function as an appellate court, we should be seen in the different places. Some Members liked this; others did not. Some thought oral argument was a waste of time. However, once I became an Immigration Judge, as you know, I was able to have oral argument in every case.
The BIA Pro Bono Project also started during my time as Chair. Under the Pro Bono Project, volunteer attorneys come to the Board office, review appeals of unrepresented immigrants, and then assign meritorious appeals to volunteer attorneys for representation. There was a lot of internal opposition to the Project because it was seen as the BIA deciding who gets represented and who does not. We had not done anything like this before. But, it has been highly successful.
The Virtual Law Library was also started under my tenure, with strong support and encouragement from Director Moscato. Also, we instituted an “electronic en banc voting system.” We also eliminated the position of “Chief Attorney Examiner/Alternate Board Member” and gave the duties of overseeing BIA staff to the two Vice Chairs who assisted me. That was after the last Chief Attorney Examiner, Neil Miller, who recently retired, was appointed to the Board by Attorney General Reno.
ASYLUMIST: Let's take a break. In next week's installment, Judge Schmidt discusses the "purge," his prescription for fixing what ails the Board, and other controversial stuff. Stay tuned...
Originally posted on the Asylumist: www.Asylumist.com.
A recent Board of Immigration Appeals ("BIA") decision upheld an Immigration Judge's adverse credibility finding where the respondent's affidavit was "substantially similar, and in some regards identical, to an asylum application previously filed by respondent's brother in a different proceeding." Matter of R-K-K-, 26 I&N Dec. 658 (BIA 2015).
The BIA should think of more creative ways to prevent cheating.
In this case, the first brother came to the U.S., filed for asylum, and was granted. In his asylum application, brother # 1 stated that he was arrested two times--in 2004 and 2006--and he described what happened during those arrests. Later, the second brother (respondent or R-K-K-) came to America and filed for asylum. He also claimed to have been arrested two times--in April and May 2010. R-K-K- described his arrests in terms remarkably similar to his brother's case, including the time of day when he was arrested, the abuse endured, conversations with abusers, and psychological harm. R-K-K- even included in his affidavit the same spelling and grammar mistakes as his brother.
After informing R-K-K- of the problem, the Immigration Judge ("IJ") gave him time to gather evidence and explain himself. R-K-K- claimed that the similarities were the result of the brothers' "common backgrounds and experience," and because they were assisted by the same transcriber. The IJ asked R-K-K- to locate the transcriber, but R-K-K- was unable to do so.
The IJ did not accept R-K-K-'s explanation. He found R-K-K- not credible and denied the application for asylum. R-K-K- appealed.
The BIA affirmed the IJ's decision and issued a published decision in order to set forth a "procedural framework under which an Immigration Judge should address... inter-proceeding similarities." The short answer here is that (1) the IJ must give the respondent notice that her case has been found substantially similar to another case; (2) allow her an opportunity to explain what happened; and (3) determine the respondent's credibility based on the totality of the circumstances. The shorter answer is, Who cares?
I do not know how often "inter-proceeding similarities" are an issue, but I imagine it happens now and again. When I was a Judicial Law Clerk at the end of the last century, I worked on a Somali case that was essentially identical to an unrelated person's case. The affidavits and events were word-for-word the same. Only a few names had been changed to personalize the story a bit. So I suppose there is nothing wrong with establishing a framework for analyzing the problem.
But to me, it seems that the Board in R-K-K- is missing the larger issue. Yes, it appears that R-K-K- committed a fraud, and yes, under the applicable legal standard, he should probably be deported. And fine, it's nice to have a framework to assess credibility when this issue comes up. But what about the missing "transcriber"? Where is the person who prepared this fraudulent case? He is nowhere to be found. And the BIA does not seem to care.
Frankly, the BIA's decision here makes me angry. Everyone in this business knows that asylum fraud is a problem. We also know that there are (hopefully) a small number of attorneys and notarios (or transcribers) who are responsible for much of this fraud. These people damage the asylum system and make life more difficult for legitimate asylum seekers.
Some--perhaps most--of the fraudsters' clients are active participants in the fraud. But at least in my experience cleaning up their messes, many of these "clients" are naïve victims of unscrupulous attorneys who find it all too easy to manipulate frightened people who do not speak English, who are predisposed to mistrust authority (because they were harmed by the authorities in the home country), who do not understand "the system," and who have no support network in the United States.
So is R-K-K- a victim or a villain? We don't know, and given the BIA's "framework" for analyzing similar cases, I guess we never will.
How could this decision have been better? It seems a crime was committed here, so why not involve law enforcement? When a possible fraud has been detected, the Board could require the IJ to inform the applicant about the possible fraud, advise him that if he cannot overcome the finding of fraud, he faces criminal and immigration penalties, and give him an opportunity to switch attorneys and/or work with law enforcement to expose and prosecute the guilty party. He should also be made aware of the benefits of cooperation. The alien can refuse to go along, of course, in which case he will face the consequences. But if he does cooperate, he should be rewarded, particularly if it turns out that he was more of a victim than a co-conspirator.
There is precedent for this type of coercion in immigration proceedings. In Matter of Lozada, the BIA basically held that if an alien has been denied relief due to the ineffective assistance of her attorney, she can reopen her case, but to do so, she generally must file a bar complaint against the ineffective attorney. This requirement forces attorneys to police their own by possibly having their colleagues disbarred. I don't like it, but I'll file a complaint when it's justified. And--so the reasoning goes--if the offending attorney is barred from practice, his future clients/victims will be protected.
The problem addressed by R-K-K- is worse than the one described in Lozada. In Lozada, we are talking about ineffective assistance of counsel--this ranges from a benign screw-up (which can--and does--happen even to the best attorneys) to dereliction of duty. In R-K-K-, on the other hand, the Board is addressing outright fraud: The attorney or notario (or applicant) has appropriated someone else's case as her own in the hope of outwitting the fact-finder. This is malicious and dangerous behavior that requires punishment. The regime created by R-K-K- allows the little fish to fry and the big fish to keep swimming. It addresses a symptom of the fraud without reaching the source. I hope that the BIA will one day revisit this issue and that it will take a stronger stance against asylum fraud.
Originally posted on the Asylumist: www.Asylumist.com.
Updated 09-11-2015 at 12:11 PM by JDzubow