Immigration Law

Former BIA Chairman Paul W. Schmidt Excoriates IJs, BIA and CA11 Panel in Salvadoran Asylum Case

Paul W. Schmidt, Apr. 22, 2019

In re Diaz-Rivas v. U.S. Att’y Gen., 11th Cir., 04-18-19, unpublished, Jordan, Circuit Judge, concurring and dissenting.

"In truth, this well-documented family-based persecution case should have been granted and probably would have been granted in many Immigration Courts. But, instead of being granted the protection she deserved, this respondent was subjected to the notorious “asylum free zone” created by the judges of the Atlanta Immigration Court, enabled by the BIA, promoted by the DOJ, and encouraged and empowered by some Article III Circuit Judges.

As cogently pointed out by [dissenting] Judge Jordan, his colleagues 1) grossly misconstrued and rewrote the “one central reason” provision of the asylum statute against the respondent, and 2) swept under the carpet the glaring evidence of constitutional violations of equal protection by EOIR, the Atlanta Immigration Court, the BIA, and the DOJ. To make matters worse, instead of taking the bold public action necessary to stop these outrageous legal and constitutional abuses, the majority made this an “unpublished” decision to obscure the unseemly evidence of what they were doing.

Significantly, in his footnote 2, Judge Jordan points out that there could be other means of challenging the Atlanta Immigration Court’s unconstitutional actions: through an APA action in U.S. District Court. Advocates should vigorously pursue all possible avenues to bring an end to this well-documented abuse of authority in Atlanta (and some other Immigration Courts with asylum grant rates so unrealistically low as to show a pattern of anti-asylum bias.)

And what is the purpose of the BIA if it fails to address chronic “refugee roulette” and unconstitutional behavior by Immigration Judges? Not much that I can see!

Might as well save time and money and just send all appeals from Immigration Judges to the U.S. Circuit Courts of Appeal. End the charade that the BIA is some sort of “expert tribunal” whose decisions are entitled to “deference.” Obviously, Judge Jordan understands immigration and constitutional law much better than the BIA (and his colleagues in the majority) and has the courage to speak out against glaring judicial abuses and lack of professionalism among some Immigration Judges that the BIA tolerates and the DOJ actively encourages.

The majority’s clearly flawed decision could be a “death warrant” for an innocent woman entitled to our protection. Worse yet, miscarriages of justice such as this directed against vulnerable asylum seekers go on every day at every level of our justice system. They advance the Administration’s “Big Lie”– that most asylum seekers from the Northern Triangle do not have valid claims for asylum. To the contrary, many of the claims are valid — but, the judicial system for adjudicating them is not valid — it isn’t fair, and it isn’t impartial as this case well illustrates.

Under a fair, impartial, and objective judicial system, many more claims like this from the Northern Triangle  would be granted — perhaps a majority. But we can’t tell because the current system is so unfairly biased against asylum seekers. There is no doubt that there would be more grants than are happening today.

Indeed, many observers are failing to ask the real questions — with conditions for refugees worsening throughout the world, why are U.S. asylum grant rates inexplicably falling?  Why are such a low percentage of individuals determined to have “credible fear” of persecution eventually granted asylum by Immigration Judges?

Rather than the bogus narratives being presented by the Administration and repeated by folks like Senator Ron Johnson (R-WI) that the system is being “gamed” by asylum seekers, there appears to be a much more reasonable explanation — that the EOIR system has been “gamed” by anti-asylum politicos in this and previous Administrations to artificially and illegally suppress asylum grant rates by Immigration Judges particularly for women, children, and other vulnerable individuals from the Northern Triangle.

Cases like Ms. Diaz-Rivas’s are actually fairly common. Granting them in accordance with law would send the proper signals and would actually lead to a fairer and more efficient system where asylum law would be correctly applied and many more cases could be granted by Asylum Officers without ever reaching Immigration Court or granted in short hearings before Immigration Judges actually committed to giving asylum seekers a fair shake.

Beneath all of the intentionally cruel and unnecessary detention, coercion, deprivation of counsel, hate narratives, and failures of due process and professionalism in our treatment of asylum seekers lies an even uglier truth: judges at all levels of our system, often at the urging of political officials, are encouraged and enabled to skew, misinterpret, and misapply the law and often distort facts to deny protection that should be granted in a fair and impartial system. 

It’s important that cases like this one be “brought into the light” and that judicial abdications of duty be documented. The New Due Process Army is making the historical record of how asylum seekers are being mistreated and will keep confronting judges and legislators with the facts, evidence, and the law until the system finally delivers on its unfulfilled promise “of guaranteeing fairness and Due Process for all” — and that means granting legal protection to even the most vulnerable and endangered among us! The only question is how many innocents will die, be raped, beaten, tortured, extorted, exploited, imprisoned, forced to live underground, or otherwise persecuted and abused before our system finally gets it right?"

[Judge Schmidt's bio here.]