Former BIA Chairman Paul W. Schmidt on His Career, the Board, and the Purge (part 1)

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!).
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…

Related Post

25 comments

  1. Hi, Hon Schmidt Paul granted the asylum in 2011 and I have a restitution to make to Hon Schmidt is really important I m looking a way to make the restitution Direct to him .

    Reply
    • This is not something that is permitted under US law (even if he is retired), and I am quite sure he would tell you it is not necessary. If you want to post something on this blog, he likely will read it. Take care, Jason

      Reply
  2. Hi Jason,
    I am a pending asylum applicant, can I apply in “Diversity Visa Lottery”?

    Reply
    • You can. There is no harm in doing that, since it is free. However, if you win, you will need to talk to a lawyer to determine whether you can actually get the green card. This may require you to leave the US. But if I were you, I would apply, and then figure out the rest if you win. Take care, Jason

      Reply
  3. i have lerner permit and 5 hour certificate of driving i got this when i was student in f1 visa now i am out of status and i filed asylum 1month ago and my road test is in 24 oct can i get license if i pass the road test or immigration status will affect it ?

    Reply
    • Hi Bikram
      I don’t think Jason can reply you, because its not his area. But i experienced same phase. I applied my license based on I-20. In between i went out of status while my road test was scheduled. I went to DMV on appointment date, passed my road test. But when i went to the counter clerk, she could not find my record. So most probably your record also will be red flaged. But you try ur luck. May be ur state policy is different. I live in Maryland.

      Reply
    • You may want to ask the school or the DMV – F-1 visas are not my area. Take care, Jason

      Reply
  4. Hi Jason,
    Thanks a lot for your kindness to guide always. Some questions here. Need advice and guidance from you:
    1.I have received 1st EAD and have been interviewed after that in September 2016 and now awaiting decision, After interview, if decision is delayed, shall my EADs will be renewed every year, Is there something that can stop the clock now?
    2.My eldest kid is in Junior year(11th Grade) now here in USA, if we receive no decision or are in court in next two years, how does this effect her college admissions?
    3.If she goes to college, shall she be allowed to complete her studies irrespective of our status here?
    Please provide your valuable thoughts.

    Reply
    • 1 – no, you can renew the EAD, and you should file for the new EAD 120 days before the current card expires; 2 – if there is no decision, she can go to college using the EAD, but it is unlikely she can qualify for in-state tuition, and it might be harder to get scholarships, but for all this, you need to talk to the school; 3 – If your case is denied and you are ordered deported, she may not be able to continue her studies, but given how slowly courts move, she will probably have time to complete her degree. Take care, Jason

      Reply
  5. Hey Jason.. Yet again thanks for your dedication, this forum really gives hope and answers to our queries. I have a question completely off topic. I applied for asylum back in July 2013 in the Chicago office. I was interviewed in April of this year and yet not decision made. My company started the process of sponsoring me with GC. I am still legal here and my status (OPT) expires in July 2018. My question is to know if the fact that I have applied for asylum would somehow have some negative impact on my GC process. Also, when do you think it would be appropriate to cancel my asylum application. Bearing in mind that the reason I have done that yet is due to the fact my wife is soon to be on F2 rather than OPT as this one is about to expire. So as a F2 she would not be allowed to work, thus why I have not cancelled my asylum application so she can extends her work authorization from the asylum case until we’re allowed to get one from the pending GC process. Would you have better advises on the matter. Thanks

    Reply
    • Probably you have a lawyer for the GC, and you should make sure to tell him/her that you have an asylum case. However, the asylum case should not interfere with the GC process. I recommend to people that they do not cancel the asylum until they have the GC. Some people want to get asylum even after they have a GC because they want to be able to get the refugee travel document (to use in lieu of their home country’s passport). Take care, Jason

      Reply
      • Thanks for your quick reply…I owe you BIG TIME..

        Reply
  6. I love that the BIA Pro Bono Project is getting some love – especially in this forum! Here’s our page announcing the report that Judge Schmidt was referencing: https://cliniclegal.org/news/pro-bono-project-success

    And for all the potential pro bono attorneys who read this blog, you too can take part in our success! https://cliniclegal.org/volunteer-bia-pro-bono-project

    Reply
    • Thank you for posting this, Bradley. It is a great project and it really makes a difference. Not to mention that the time commitment is not all that much. I hope all is well, Jason

      Reply
  7. In my opinion, the most controversial decision made regarding the inner workings of the Board during Judge Schmidt’s tenure is the one panel Board review. Before 1999, cases had to be decided by a three Board member panel. In 1999, the streamlining procedures were created and a single Board member was able to decide cases. From the outside, the optics are that the Board is less deliberative in its decision making.

    In addition, I am not convinced that filing appeals directly with the BIA as opposed to the local immigration court is a fair process. For us who live near Falls Church, VA, we can make any filings the day it is due. However, attorneys who reside outside the general Washington, DC area must notice their appeal one day before and hope Fed Ex delivers the document timely. If everyone could file the appeal and the briefs at the local immigration court and then the case get transfers to the BIA, it seems it may be more fair for those whose offices are outside Falls Church, VA.

    That said, I have great admiration for Judge Schmidt. I can’t say that I have won every case with him, but I can say that I got a fair hearing in every case I presented in his courtroom. And that is the hallmark of a great jurist.

    Reply
    • I wonder what the Court does if a respondent files the appeal with the court. Would they somehow preserve the filing date? Or is the appeal considered late, and then they have to try to reopen with the court? Anyway, I hope never to find out. Thank you for the comment, Jason

      Reply
    • I agree with Mr. Yacub that three-member review is highly desirable. But, given the size of the BIA’s docket, it just isn’t realistic or necessary in every case. The “original” streamlining — basically summary affirmance — was my idea. I actually spent lots of time and effort developing it, and then “selling” it to the Board Members, the DOJ, INS, and the private bar. Even on the most contentious three-member panels (and I was on some of them) about two-thirds of the cases went through without significant discussion. The intent of the original streamlining was to reduce the amount of Board Member time spent on reviewing those files so that we could concentrate on the 10% to 30% (depending on the panel) where the panel members wanted to discuss, provide written guidance, or change the result. These generated all of the precedents and en banc discussions. This program actually got off to a excellent start and was evaluated by an outside evaluator as increasing efficiency without diminishing due process. Importantly, if a Board Member wanted to write about the case — to reverse it, to correct non-outcome-determinative errors in the IJ’s decision, or to address the points raised on appeal in writing, the case had to be referred to a three-member panel for a full decision. Single members could not write decisions — they could only summarily affirm or refer to a three-member panel. That limitation was quite intentional on my part. I did not intend that the summary affirmance process be used to avoid necessary, meaningful dialogue or dissent.

      The “Ashcroft reforms” expanded the “original” streamlining in two significant ways. First, there was a presumption in favor of single member decisions and against referral to three member panels. Second, single member “panels” could now write complete decisions — they were no longer limited to summarily affirming or referring the decision below. In my view, these changes along with the elimination of those Board Members who often voiced dissenting views in favor of respondent’s rights, created the disaster that soon hit the Courts of Appeal. Additionally, 12 Members were never sufficient for the workload, so the Board immediately had to resort to Temporary Board Members drawn from the staff who had no say in the en banc process, which under Ashcroft also became “disfavored.”

      Local filing was a mess when I arrived. There was no uniformity, no enforcement of filing deadlines, and records on appeal often arrived in piecemeal fashion long after the initial appeal was filed. Sometimes the appellate briefs were not included. The appeals processing staff mostly worked for OCIJ, not the BIA, and the fees were paid to INS, rather than EOIR. There was also no uniformity on briefing; each office had different requirements and policies. Putting the appeal in a courier envelope and sending it to the Board is hardly rocket science, even for unrepresented individuals. I can’t imagine what a mess appeals processing would be today if it were still in the local courts, given that the local staff can barely get all the incoming cases docketed, take care of motions and phone calls, handle 50-case Master Calendars, keep up on new policies, input data, mail notices, etc. Clearly, processing appeals would be at or near the bottom of the list.

      On Jason’s question, filing at the local court would be rejected and probably would be considered untimely by the BIA. The instructions are clear on the direct filing. Interestingly, although I didn’t have lots of unrepresented cases in Arlington, almost 100% of the unrepresented respondents who wanted to appeal my decisions, including a number in detention, managed to file timely, just by following instructions. Sadly, that’s actually a better rate than some of the attorneys.

      Reply
  8. Fantastic piece, Jason. I love working for the government (ORR) but am so glad immigration advocates are still pushing for precedential decisions. Keep pushing!

    Reply
    • Thank you. If you liked part 1, you will love part 2. Stay tuned next week. Same bat time, same bat channel…

      Reply
  9. What a great piece, I’m looking forward to the next installment…I miss Judge Schmidt!!!!!

    Reply
    • Me too (though he keeps emailing me photos of his cabin in Maine because he knows it makes me jealous). I hope all is well with you, Jason

      Reply
  10. Judge Schmidt talks about the pro bono project as if it is still there…but I’m pretty sure DOJ ended it a couple of years ago, which is a real shame on a lot of levels. Can he address why it was ended and perhaps how we in private practice can make up the gap? Judges are uniquely situated to determine when representation will make a critical difference and many immigrants get a raw deal when left to their own devices.

    Reply
    • Actually, it is still there. I am volunteering for it this Friday. It’s a great project. Too bad the BIA wasn’t metro accessible. But that is a post for another day. Take care, Jason

      Reply
      • In all other Court Systems that I’m aware of, the Judges often reach out to private counsel to provide pro bono representation in cases where it is needed. Indeed, I believe the Supreme Court reaches out to its former Law Clerks in private practice on a regular basis. When I was the INS Deputy General Counsel, working on Haitian asylum litigation, the late Judge Eugene Spellman of the USDC, SD FL, basically demanded that the private criminal and immigration bars in Miami get involved in providing pro bono representation for asylum applicants. He also basically told us in the INS GC’s Office to get involved in pro bono training, not only in Miami but also in Puerto Rico. Indeed, Judge Spellman traveled to Puerto Rico to make a personal appeal for pro bono representation of Haitian asylum applicants detained there. When I was a partner at Jones Day in the early 1990s, one or more Immigration Judges called me to request that our Firm provide pro bono representation to needy individuals in immigration detention, which we did. In the Arlington Immigration Court, now retired Judge Wayne Iskra was our long time Pro Bono Liaison Judge, and we were encouraged to contact the various pro bono coordinators when we saw cases where fundamental fairness required representation. However, at some point, the EOIR General Counsel rendered an opinion that directly contacting organizations or attorneys to request pro bono representation in a particular case was inappropriate. As a result, Judge Iskra resigned as the Pro Bono Liaison Judge and the Arlington Court’s pro bono program basically became “passive” except for the involvement by me and several of my colleagues in formal pro bono training sessions sponsored by the DC Bar and various NGOs. Fortunately, the BIA program was carefully structured so that all of the screening and preliminary determinations of suitability for pro bono representation is done by the private bar or NGOs. The BIA itself is not directly involved in determining who gets represented. However, the BIA does facilitate the necessary access for the private pro bono screeners. At one point, someone published the results of the program, and they showed what a difference competent representation makes at the appellate level.

        Reply
        • I am going to the BIA this very morning for the Pro Bono Project. Representation does make a huge difference – I reviewed one case from Central America where the gang wanted to date the respondent’s sister. When the parents refused, the gang murdered the parents and other family members. The respondent escaped to the US. He had submitted newspaper articles about the massacre, but was denied asylum by an IJ due to lack of nexus. In fact, it was pretty obvious that PSG was “family”, but the IJ missed it (or ignored it). If this young man had been deported, he likely would have been killed. Luckily, the Pro Bono Project found a great lawyer, who litigated the case up to the Sixth Circuit and ultimately won asylum. Representation makes a difference, and the Pro Bono Project makes a difference.

          Reply

Write a comment