Former BIA Chairman Paul W. Schmidt on His Career, the Board, and the Purge (part 2)

by Jason Dzubow on October 5, 2016

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.

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.

{ 52 comments… read them below or add one }

Franklin December 2, 2016 at 8:57 am

I would like to get in touch with the former BIA Chairman
Mr. Paul W Schmidt , US mail address , email or business
telhephone number , please

Reply

Jason Dzubow December 4, 2016 at 12:11 pm

Sorry, this is not something I can assist with. Take care, Jason

Reply

Mark Heller October 20, 2016 at 11:14 am

Hi! Judge Schmidt rode circuit via videoconference into Ohio from the Arlington Immigration Court for several years. I and many of the immigration lawyers who practiced before him had and have great respect for his knowledge, grace, and impartiality. Going into a hearing with him was like going to a real court; I primarily practice in federal court. He was thorough and rigorous, but respectful of the person in proceedings. He should be extremely proud of the legal standard he established in his court.

Reply

lovkesh October 18, 2016 at 6:19 am

Hi jason
First of all i want to thanks you for a wonderful and informative blog.
My question is.. can my family join my asylum application after three years if they get visitor visa of usa.

Reply

Jason Dzubow October 18, 2016 at 9:55 pm

I believe the I-730 follow-to-join petition must be filed within two years of the grant of asylum. Take care, Jason

Reply

Ali October 17, 2016 at 7:46 pm

Hi Jason, it will be 1 year on October 27th this month since grant of my asylum status. However, I was out of the US for about 3 months. I was reading the instructions of i485 and it said you must physically be present in the US after grant of asylum to apply for green card. My question is should I wait for 3 more months before applying or should I apply on 10/27. Second question is do I have to attach a medical report too with my i485 & G325-A. Please advise, thanks-you.

Reply

Jason Dzubow October 18, 2016 at 5:51 am

Sorry – I do not know the answer. I can tell you that we have never had a problem applying for a client who spent some time outside the US, but I do not think I had a case before where the person was outside the US for 3 months. You may want to hire a lawyer to research this, or try to research it yourself. I suspect that there is not much information available, but maybe you or a lawyer can find something. I suppose if you are not in a hurry, and don’t want to take any risk, you can wait a few extra months to file. As for the medical exam, we send it with the I-485 and other documents. If you do not send it, USCIS will send you a letter requesting it, which will slow down the process a bit. Take care, Jason

Reply

Selena October 17, 2016 at 1:05 pm

Dear

I have two questions can you please advice me.

1- my mom have a green card can she apply for me I am more than 21 years and I married and I have kids?
2- can you please told me if there any condition.
3- how much time my mom should stay in use to apply for a us citizen?

Thank you

Reply

Selena October 17, 2016 at 5:45 pm

I mean how long time should my mom stay in USA to apply for a us citizens with out lost her residents

Reply

Jason Dzubow October 18, 2016 at 5:47 am

Sorry – I can only answer questions related to asylum here.

Reply

Selena October 19, 2016 at 11:21 pm

Thank you

Reply

jack 80 October 16, 2016 at 11:48 pm

dear sir
i am applied for asylum since two years ago and no decision till now ,my question can my sister (us citizen ) applied a petition for me to get green card while i am waiting my decision regarding my asylum here in us .
best regards

Reply

Jason Dzubow October 17, 2016 at 6:35 am

She can and it has no effect on your asylum case. However, it takes about 14 years until you can apply for the green card, and you would probably have to leave the US and get the green card overseas, so it may not be worth it, but you can, and I suppose it does not hurt to have a back-up plan. Take care, Jason

Reply

jack 80 October 18, 2016 at 10:12 am

thanks a lot , so during these long period i can stay in U.S if my asylum is still not approve, and when my sister petition for green card approve after these long years i must leave U.S?

Reply

Jason Dzubow October 18, 2016 at 10:01 pm

I do not know, but that is probably correct. You would need to talk to a lawyer about the specifics of your case to be sure.

Reply

jack 80 October 19, 2016 at 1:28 am

thank you so much for your answer

aminata diallo October 14, 2016 at 10:14 pm

October 14,,hi all. I have master hearing December 1st 2016 with JUGE Paul. W.SCHMIDT in Arlington. Va, I am living in NYC now. I want to no if I need transfer my case to NYC, or not. Thanks

Reply

Jason Dzubow October 17, 2016 at 6:19 am

J. Schmidt has retired, so you will have a different judge. But if you are living in NY and that is a permanent address, you need to file a change of address with the court (form EOIR-33). You my also want to file a motion to change venue, so your case is moved and you do not have to waste time with a trip to VA. Take care, Jason

Reply

Mark October 13, 2016 at 7:21 pm

Hi thanks so much for everything I want to ask if are you going to the asylum division quarterly stakeholder meeting ? If yes would you post something about it here please and can anyone attend thank you.

Reply

Jason Dzubow October 14, 2016 at 6:18 am

I may go – if I have an update I will post it. I think anyone can go, as long as you sign up in advance, but I am not sure about that. Anyway, if you ask to go, they will tell you. Take care, Jason

Reply

Paul Wickham Schmidt fan October 13, 2016 at 3:05 pm

As an attorney who was not yet old enough to vote against Bush in 2000, I had no idea about this fascinating history. Judge Schmidt, thank you for all that you do to spread the voice of justice. I greatly enjoyed practicing before you for the short time our careers overlapped. Wishing you the best in your retirement.

Reply

James October 13, 2016 at 5:17 am

Thank you for the good work Jason. I have a pending affirmative asylum case in Houston office. I had travelled to the US in February but returned back to my home country in April through Dubai after my family was attacked and one of my kids hurt and my house burnt down. I returned to the US in July and applied for asylum.
My first travel to the US was purely a visitation but I had to return home after the attack on my family.

1. Could the travel back to my home country to address my family attack be a problem to my asylum case?
2. If it is a problem what can I do to address it?
Also how long does it take for one to

Reply

Jason Dzubow October 13, 2016 at 6:38 am

1 – I highly doubt it will be a problem, since your family was attacked after your trip. We see this situation all the time, and it has not been a problem for any of our clients; 2 – you need to explain and provide evidence about the attack, in order to show that it occurred after your first trip to the US. If you do this, you should be fine. Good luck, Jason

Reply

Amit October 12, 2016 at 1:14 pm

Hi Jason,

I wrote to my Asylum office 2 weeks after interview through email. Received the following reply:
“Thank you for your email. Please note that this application is pending a final decision in our office. Once a final decision is reached, you will receive a written decision by mail from our office.”
My biometrics were done 8 months before the interview. What could be causing the delay?

Reply

Jason Dzubow October 13, 2016 at 6:26 am

All sorts of things – security background check and headquarters review are two common reasons. Unfortunately, there are many people waiting this same amount of time, or much longer. You can also make an inquiry with the USCIS Ombudsman (a link is at right), and this may give you abit more information about what is happening. Good luck, Jason

Reply

Patti Lyman October 11, 2016 at 6:11 pm

Another great piece on Judge Schmidt – bravo!!! Though it sounds like the road from the BIA to IJ was stressful and difficult, I can say with 100% certainty that I am grateful for that broken road, because it was of such service to my clients and such a pleasure to appear before Judge Schmidt.

Reply

Jason Dzubow October 13, 2016 at 6:17 am

Thank you – J. Schmidt will definitely be missed in Arlington. I hope all is well with you, Jason

Reply

Selam October 11, 2016 at 1:07 pm

Hi Jason,
Thank you for writing these helpful articles. I do have a question about the recent USCIS announcement that increases Validity of Work Permits to Two Years for Asylum Applicants. Does the extension become effective after we get an EAD approved/renewed after October 5, 2016 or are all of the EADs given before valid for two years? If the second is the answer, how can we inform/convince employers that the work permit valid for two years unless it is shown on the EAD card itself?

Thank you again
Selam

Reply

Jason Dzubow October 11, 2016 at 3:53 pm

I think the change is only for EADs issued after October 5, so you will need to renew an expiring card. I recommend you file to renew 120 days before the old card expires – that is the earliest you are allowed to file to renew. Take care, Jason

Reply

Selam October 12, 2016 at 10:18 am

Thank you, Jason.
Your help is much appreciated, Selam

Reply

david October 11, 2016 at 6:36 pm

where did you saw the USCIS announcement ? can you, please share the link thank you

Reply

Davids October 12, 2016 at 10:04 pm
Zakir October 10, 2016 at 7:17 pm

Hi Jason,

I am having H1 Visa valid for 4 more years. My wife got the asylum grant this year March and we get married about six months after. Since we get married after she get Asylum status I am not part of her case.
Can my wife and I apply for green card together next year March ?

Thank you so much.

Regards
Zakir

Reply

Jason Dzubow October 11, 2016 at 4:25 pm

No – Once your wife has her green card, she can file for you, which takes several years. You may want to find your own way to get a green card, or you can wait for your wife to file for you. The only way the spouse of an asylee can get the green card is if the couple was married before asylum was granted. Take care, Jason

Reply

Gaurav October 9, 2016 at 10:36 pm

Hi Jason,
My mother is a Permanent Resident and lives in USA. I believe my mom can sponsor me for (F2B) – Unmarried Sons and Daughters (21 years of age and older) of Permanent Resident, so I can get a “Green card.” (It will probably take 7 years since the date given is 15 March 2010)
I am 36 years old, unmarried and live in USA. Also, I am an asylum applicant who applied in August, 2014 and still waiting for my interview. Can I apply for (F2B) and still carry on with asylum? Would you recommend this strategy? Will it affect my Interview ?

Thank you very much.

Reply

Jason Dzubow October 11, 2016 at 4:11 pm

You can have your mother sponsor you, and it should not affect your asylum application. However, you should be aware that if your F2B becomes current (in 7 years or so), you likely will have to leave the US and get your green card overseas. This may or may not be possible, depending on your case. Maybe you want to talk to a lawyer about your case before you pay for the I-130 to be sure you can take advantage of the application when the time comes. Take care, Jason

Reply

Sol October 8, 2016 at 2:47 pm

Hi all,
Just to share you new information about EAD validity dates. You can check on the below link.
https://www.uscis.gov/news/alerts/uscis-increases-validity-work-permits-two-years-asylum-applicants

USCIS Increases Validity of Work Permits to Two Years for Asylum Applicants. Effective October 5, 2016, USCIS has increased the validity period for initial or renewal Employment Authorization Documents for asylum applicants from one year to two years.

Reply

Marcos October 9, 2016 at 11:00 am

That’s a great news. Thanks for sharing Sol.

Jason, does this 2 year EAD also applies to asylum seekers whose case have been referred to Immigration Court?

Reply

Jason Dzubow October 11, 2016 at 6:28 am

Thank you – it is nice to get some good news once in a while. Take care, Jason

Reply

Sara October 6, 2016 at 11:24 pm

Hi Jason,
I was wondering why SF and NY offices are the only ones moving. Arlingtin office have been stuck in January 2014 for the last 4 months.

Reply

Jason Dzubow October 7, 2016 at 6:24 am

It has to do with how USCIS distributes the caseload (among other things), especially the interviews for people crossing the US/Mexico border, which get priority over “regular” asylum cases. I am writing a blog post about this subject and hope to have it up in a couple weeks, so check back. Take care, Jason

Reply

Ofelia Calderon October 6, 2016 at 6:45 pm

Jason, thank you for doing this. Judge Schmidt, thank you for answering and as always for articulating a fair, just, and reasonable position that encourages the due process our system should be based on. I miss you already, but am happy knowing that you are enjoying this time with your family. You deserve it.

Reply

Jason Dzubow October 7, 2016 at 6:22 am

Thank you Ofelia. I hope all is well and that we meet again soon, Jason

Reply

Michael Patrick October 6, 2016 at 4:19 pm

How refreshing to hear someone of Paul’s credibility and integrity “tell it like it is.” And was. We need more like him.

Reply

J.D. October 6, 2016 at 4:06 am

Seems like a very decent fellow. Thanks for doing this great interview. This little bit caught my attention:

Judge Schmidt: “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.”

I have heard of lots of judges with rejection rates near 100%. While it is possible that almost all cases they work on are meritless, many of these “rejectionist” judges serve alongside judges with relatively high grant rates. While I don’t know the motivations of these judges, nor do I know the details of the cases they decide, and I don’t wish to disrespect them in any way, I just can’t help but feel that they automatically reject asylum cases before even hearing them.

It just makes me think that whether you win your asylum case or not, has more to do with which judge hears your case, than with the merits of it. This “judge roulette” is extremely demotivating, truly, to those of us who hope to escape deadly persecution and to find home in America. 🙁

Reply

Jason Dzubow October 6, 2016 at 6:24 am

My experience is that such judges are not all that common (and there are also judges with grant rates that are higher than average). You can check the TRAC website, which lists judges’ asylum grant rates. Certainly, some judges and courts are best avoided, given the low grant rate. I am not sure about the motivation either. I suspect that such judges have a very negative view of applicant credibility, and that they expect too much in terms of corroboration. The BIA has provided some guidance in this area (and so has Congress with the REAL ID Act), but we really need more guidance for judges in terms of credibility determination. In the book Refugee Roulette, there are some good suggestions for improving the disparities in grant rates. Take care, Jason

Reply

J.D. October 6, 2016 at 7:55 am

From what I remember reading on the TRAC website, while these judges are a minority, they’re far more common in border states, so if you ask for asylum at the border, the chance of getting a rejectionist judge is much higher. (Or at least that’s how I think it works). So it would certainly be best to research and prepare your case before you reach America.

Thanks.

Reply

Jason Dzubow October 7, 2016 at 6:05 am

I think is probably true, but remember also that those cases are more difficult to win: There is often an issue of nexus and many Central Americans/Mexicans have a hard time showing that the harm they face is “on account of” a protected ground. Add to this that they are often detained, subject to an expedited procedure (making it more difficult to get evidence and counsel), and most do not speak much English or have a good understanding of the system. In other words, the problem may not be that the judges near the border are tougher, but rather that the cases are harder to win and the process is heavily stacked against them. Take care, Jason

Reply

W. Joyce October 5, 2016 at 9:18 pm

You were the best. Stay in touch!

Reply

Jim Roberts October 5, 2016 at 9:00 pm

Thank you so much Jason and Judge Schmidt. It was an honor to appear before you so many times Judge Schmidt. Enjoy your kayaking

Reply

kukbure October 5, 2016 at 6:13 pm

Jason,

When I submitted renewal for EAD (c)(8) in August, I forgot to attach my pictures to the application. I also sent separate mail to them if I can send the pictures to them. But I still didn’t hear them yet. Do you think I can send the pictures to them or wait until they request?

P.S. Is there any way we can apply for renewal EAD application for kids without paying $380? or do we have to pay? Because when we renewal Medicaid for the kids, health department needs to see immigration status of the kids, even we show them A-notice(I-589) or finger print they still need to have work permit which proofs the status of applicant. Please give us some advice.

Reply

Jason Dzubow October 5, 2016 at 10:13 pm

I think you will have to wait for them to contact you before you send them the photos. In fact, they just changed the rules of some applications and photos are not needed (since they will take your photo themselves), but I do not remember whether the change affects EADs. As for the fee, if you or your children are eligible, you can request a fee waiver using form I-912, available at http://www.uscis.gov. Take care, Jason

Reply

Leave a Comment

Previous post:

Next post: