ImmigrationProf Blog

Immigration Article of the Day: The US Immigration Courts, Dumping Ground for the Nation’s Systemic Immigration Failures: The Causes, Composition, and Politically Difficult Solutions to the Court Backlog by Donald Kerwin and Evin Millet

The US Immigration Courts, Dumping Ground for the Nation’s Systemic Immigration Failures: The Causes, Composition, and Politically Difficult Solutions to the Court Backlog by Donald Kerwin and Evin Millet, Journal on Migration and Human Security (2023)

Abstract

The US immigration court system seeks to “fairly, expeditiously, and uniformly administer and interpret US immigration laws” (DOJ 2022a). It represents the first exposure of many immigrants to due process and the rule of law in the United States, and occupies an integral role in the larger US immigration system. Yet it labors under a massive backlog of pending cases that undermines its core goals and objectives. The backlog reached 1.87 million cases in the first quarter of FY 2023 (Straut-Eppsteiner 2023, 6). This paper attributes the backlog to systemic failures in the broader immigration system that negatively affect the immigration courts, such as:

 

•  Visa backlogs, United States Citizen and Immigration Services (USCIS) application processing delays, and other bottlenecks in legal immigration processes.

 

•  The immense disparity in funding between the court system and the Department of Homeland Security (DHS) agencies that feed cases into the courts.

 

•  The failure of Congress to pass broad immigration reform legislation that could ease pressure on the enforcement and court systems.

 

•  The lack of standard judicial authorities vested in Immigration Judges (IJs), limiting their ability to close cases; pressure parties to “settle” cases; and manage their dockets.

 

•  The absence of a statute of limitations for civil immigration offenses.

 

•  Past DHS failures to establish and adhere to enforcement priorities and to exercise prosecutorial discretion (PD) throughout the removal adjudication process, including in initial decisions to prosecute.

 

•  The location of the Executive Office for Immigration Review (EOIR), which oversees US immigration courts, within the nation’s preeminent law enforcement agency, the Department of Justice (DOJ).

 

•  The misconception of many policymakers that the court system should primarily serve as an adjunct to DHS.

 

•  A past record of temporary judge reassignments and government shutdowns.

 

The paper supports a well-resourced and independent immigration court system devoted to producing the right decisions under the law. Following a short introduction, a long section on “Causes and Solutions to the Backlog” examines the multi-faceted causes of the backlog, and offers an integrated, wide-ranging set of recommendations to reverse and ultimately eliminate the backlog. The “Conclusion” summarizes the paper’s topline findings and policy proposals.

 

Click here to register for a webinar on the paper.

 

KJ

DePaul's Asylum and Immigration Law Clinic in the News

A news report features the work of DePaul's Asylum and Immigration Law Clinic.  Sioban Albiol, Professor of Legal Practice, is the Director of the DePaul Asylum and Immigration Law Clinic and was interviewed for the story.  Some if the students who work in the clinic understand the importance of legal representation first hand.  The story quotes students:

"My parents immigrated in the 90s from Poland and my dad actually filed for asylum, but he was not granted," said Camilla Mroczkowski, student attorney Asylum & Immigration Law Clinic

"I was an asylum seeuker myself back in 2011. I was part of the revolution in Syria," said Emad Mahou, student attorney Asylum and Immigration Law Clinic.

KJ

Cornell Law Asylum and Convention Against Torture Appellate Clinic Celebrates 20th Anniversary

 

Photo courtesy of Wikimedia Common

Owen Lubozynski for Cornell Law School News reports that "[t]wenty years ago, Cornell Law School established its Asylum and Convention Against Torture Appellate Clinic. Since then, some 200 students have represented close to 100 clients. In a system where the vast majority of asylum seekers lose their appeals, the clinic has won an estimated sixty-six percent of its cases."

Congrats Cornell Law and the Clinic!

KJ

Call for Applications: UDC, Director of the Immigration and Human Rights Clinic

UDC Law is hiring for a new Director of the Immigration and Human Rights Clinic. Click the link for details.

KJ

Call for Applications for Immigration Postdocs at Cornell Law Immigration Law and Policy Research Program

From Stephen Yale-Loehr 
Professor of Immigration Law Practice, Cornell Law School:

"Hi all: We have two great postdocs in our immigration law and policy research program at Cornell Law School.  One has written an article on immigration federalism that has been accepted by Duke Law Journal;  the other has written an article on private refugee sponsorship models that will be published in the Georgetown Immigration Law Journal.  They have also both coauthored several op-eds.

We are looking for another person who is as talented as our two current postdocs.  Attached is a job posting for a one-year immigration postdoc position at Cornell Law School.  The same info is also available online at https://academicjobsonline.org/ajo/jobs/24303  The new postdoc will start this summer.

If you know any potential applicants or other lists, please forward.  Thanks, Steve Yale-Loehr"

KJ

News from Stanford Law School Immigrants’ Rights Clinic

This week, the Stanford Law School Immigrants’ Rights Clinic filed a Freedom of Information Act (FOIA) lawsuit against DHS regarding the Dedicated Docket Program. The complaint is here: Justice & Diversity Center of The Bar Association of San Francisco v. DHS. The complaint is filed on behalf of the Justice & Diversity Center of The Bar Association of San Francisco. 

The Clinic has been busy.  Last week, it released a new pro se guide (in English and Spanish) for individuals on the Dedicated Docket.   

KJ

Stanford Law School Immigrants' Rights Clinic's Dedicated Docket Guide

The Stanford Law School Immigrants' Rights Clinic has released a new pro se guide for individuals on the Dedicated Docket. The guide provides an overview and description of the Dedicated Docket and to provide advice regarding how one may assert their rights while on this fast-paced docket.  This guide was prepared for noncitizens in proceedings in the San Francisco Immigration Court, but may be helpful for others on the Dedicated Docket in other jurisdictions. The guide was created and written by law students under the supervision of Lisa Weissman-Ward and Jayashri Srikantiah.  It was produced on behalf of the Justice & Diversity Center of the Bar Association of San Francisco.

English: English Language Dedicated Docket Pro Se Materials

Spanish: Spanish Language Dedicated Docket Pro Se Materials

Here is a student blog post describing the experience of serving as pro bono attorneys for individuals on the Dedicated Docket as part of the development of these materials.  

KJ

Willamette Opens Immigration Law Clinic

Professor Beth Zilberman joined the faculty in summer 2022 to launch the Immigration Law Clinic at Willamette University College of Law and strengthen immigration course offerings.  The fall semester has included a successful soft launch for the Clinic.

Nearly all students enrolled in the Clinic represent clients seeking asylum based on a fear of persecution.  Clinic students have also worked on a variety of cases under the Alien Tort Statute and the Torture Victim Protection Act, which allow noncitizens to bring tort claims for violation of the law of nations.

Clinic students also engage in human rights fact-finding and reporting. Most recently, the Clinic prepared Human Trafficking and Native Peoples in Oregon. The report was in follow-up to Modern Slavery in Our Midst: A Human Rights Report on Ending Human Trafficking in Oregon.

KJ

Podcast Interview with Professor Holly Cooper

 

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Immigration Law Clinic Co-director and Professor Holly Cooper discusses her work to improve conditions for unaccompanied immigrant children in government custody. Professor Cooper walks us through the recent preliminary injunction in the national class action lawsuit Lucas R. v. Becerra that ensures more procedural protections for migrant children.   UC Davis Law's podcast about faculty scholarship, Justice Defined: Scholars of King Hall, focuses on research areas including immigration, business, civil rights, environmental and constitutional law and more.  ‌ ‌ ‌

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UC Davis School of Law | 400 Mrak Hall Drive, Davis, CA 95616

 

 

KJ

Open Position: ProBAR - Director ProBAR

 

 

The South Texas Pro Bono Asylum Representation Project (ProBAR), a project of the American Bar Association (ABA), is looking for a new Director!  The ABA seeks an experienced immigration lawyer committed to and adept at working with a diverse staff and client population to lead ProBAR on its path of providing vital legal services to immigrants and asylum-seekers in South Texas. If you are dedicated to advocating for vulnerable populations and serving detained adults and unaccompanied children on the frontlines of immigration, then this is your opportunity to fulfill your purpose with a dynamic, highly recognized nonprofit organization.

Details here.

KJ

 

Positions Open at Center for Gender & Refugee Studies

The Center for Gender & Refugee Studies (CGRS) is seeking an Individual Giving Coordinator to create and implement strategies that result in greater individual giving across all gift levels, a Legal Program Associate to provide support in various capacities to all CGRS core program areas of policy and advocacy, training and technical assistance, and impact litigation, a Federal Litigation Staff Attorney to focus on systemic litigation and direct representation to promote the rights of asylum seekers, and a Technical Assistance and Training Staff Attorney passionate about training, resource development, and mentorship in the representation of asylum seekers.

CGRS will begin reviewing all applications on November 22, 2022.

KJ

2023-24 Bellow Scholars Request for Proposals

2023-24 Bellow Scholars Request for Proposals

You can find more information at the Request for Project Proposals for the 2023-2024 Bellow Scholar class. We also encourage anyone interested in applying to attend our Prospective Bellow Workshop on November 18, 2022 to learn about the application process, gain empirical research tips and get direct feedback on your project proposals. You can register for the workshop here. 

Project Proposals are due Monday, December 12, 2022.

More about the Bellow Scholar Program:

Every two years the Bellow Scholar Program seeks innovative proposals by clinical legal educators designed to improve the quality of justice in communities, enhance the delivery of legal services, and promote economic and social justice.

In particular, the selection committee is interested in recognizing and supporting projects that employ empirical analysis as an advocacy tool and involve substantial collaboration between law and other academic disciplines. Selected projects become the focus of information sharing, discussion, and critique at the annual AALS Clinical Conference and at annual workshops organized by the committee. Selected Bellow Scholars are appointed for a two-year term.

You can read more about the Program, the 2021-2022 Bellow Scholars, and past projects on our website. The new class of Bellow Scholars will be announced in January 2023.

Prospective Bellow Workshop: November 18, 2022

The Prospective Bellow Workshop, to be held the 18th of November, is an opportunity to learn about empirical methodologies, hear from clinicians who have done this work, and get direct feedback on your project ideas.  Attendance is not required for prospective applicants. However, we design the workshop to address common pitfalls and answer questions, which is why we strongly encourage applicant attendance. Please register for the workshop here by November 15, 2022.

Please contact us at [email protected] if you have any questions.

Thank you for your interest,

Nermeen Arastu & Alina Ball

Bellow Committee 2023-2024 Co-Chairs

KJ

Report: Punishing Trauma: Incident Reporting and Immigrant Children in Government Custody

T

T

he Young Center for Immigrant Children’s Rights and the National Immigrant Justice Center (NIJC) just issued a new report demonstrating how the federal government’s reliance on “Significant Incident Reports” (SIRs) negatively impacts the well-being of unaccompanied and separated children in federal custody.  "Punishing Trauma: Incident Reporting and Immigrant Children in Government Custody” documents how SIRs often lead to children’s transfer to more restrictive settings, prolong their stays in federal custody, adversely impact children in their immigration cases, and delay family reunification or acceptance into federally-funded foster care.

This report is based on a survey of dozens of service providers who work directly with unaccompanied and separated children in the custody of the Office of Refugee Resettlement (ORR). In fiscal year 2019, federally funded providers filed more than 100,000 SIR forms about children in custody.  The report recommends a wholesale overhaul of the SIR system away from punitive responses to children’s behavior to one that ensures children receive individualized, trauma-informed care. Our joint Press release is below and here.

KJ

University of Denver Sturm College of Law: Call for Applications for Christopher N. Lasch Clinical Teaching Fellow, Immigration Law and Policy Clinic

The University of Denver Sturm College of Law is seeking to hire a Christopher N. Lasch Clinical Teaching Fellow for the Immigration Law and Policy Clinic.  See the full position description at Download Fellowship Posting ILPC Denver Law 2022

KJ

 

Fellowship Opportunities: Center for Applied Legal Studies at Georgetown Law

The Center for Applied Legal Studies (CALS) at Georgetown Law is now accepting applications for its annual fellowship program in clinical legal education. CALS will offer one lawyer a two‑year teaching fellowship (July 2023‑June 2025), providing a unique opportunity to learn how to teach law in a clinical setting. For the full advertisement, click here.

At CALS, our two fellows and faculty members work as colleagues, sharing responsibilities for designing and teaching classes, supervising law students in their representation of clients, selecting and grading students, administering the clinic, and all other matters. In addition, the fellow will undertake independent legal scholarship, conducting the research and writing to produce a law review article of publishable quality.

This fellowship is particularly suitable for lawyers with some degree of practice experience who now want to embark upon careers in law teaching. Most of our previous fellows are now teaching law or have done so for substantial portions of their careers.

Since 1995, CALS has specialized in immigration law, specifically in asylum practice, and in immigration court and in asylum adjudications by the Department of Homeland Security. Applicants with experience in U.S. immigration law will therefore be given preference. The fellow must be a member of a bar at the start of the fellowship period; therefore, this fellowship is not suitable for current law students.

The fellow will receive full tuition and fees in the LL.M. program at Georgetown University, and a stipend of 57,000 in the first year and 60,000 in the second year. On successful completion of the requirements, the Fellow will be granted the degree of Master of Laws (Advocacy) with distinction.

The faculty members directing CALS are Andrew Schoenholtz and Philip Schrag.

To apply, send a resume, an official or unofficial law school transcript, a writing sample, and a detailed statement of interest (approximately 5 pages). The materials must arrive by December 1, 2022. The statement should address: a) why you are interested in this fellowship; b) what you can contribute to the Clinic; c) your experience with asylum and other immigration cases; d) your professional or career goals for the next five or ten years; e) your reactions to the Clinic’s goals and teaching methods as described on its website anything else that you consider pertinent. Address your application to Directors, Center for Applied Legal Studies, Georgetown Law, 600 New Jersey Avenue, NW, Suite 332, Washington, D.C. 20001, or electronically to [email protected].

KJ

 

Yale Law School: Clinical Positions

Yale Law School invites applications for a full-time visiting clinical faculty position of one semester or an academic year to teach one or more law school clinics. The position would begin with the Fall 2023 or Spring 2024 Semester. A successful visit will lead to consideration for a tenure-track or tenured clinical faculty position. There is no limitation as to clinical practice areas.

Applicants should have a J.D. degree or its equivalent and a minimum of five years of practice experience. The ideal candidate will have, in addition to a record of, or demonstrated potential for, clinical teaching, a record of intellectual engagement; experience teaching, training, and supervising students or junior attorneys in a clinical or other experiential learning setting; excellent supervisory and communication skills; the ability to work effectively with students, project partners, and other constituents; an interest in developing clinical experiences for students within a community that supports interdisciplinary collaboration and innovative, passionate teaching; and a record of scholarly publication or creative applied work.

To apply, please submit a letter of interest, resume, and list of three references to Professor Anika Singh Lemar, Chair, Clinical Appointments Committee, at [email protected], and copy Nina Fattore, [email protected]. The letter of interest should include a description of the clinic you intend to teach. Review of applications will begin immediately and continue until the position is filled. More information about clinical legal education at Yale Law School can be found here..

KJ

How A Law Prof Is Training Non-Attys As Immigrant Advocates

Marco Poggio for Law360 has a nice story about Immigration Law Professor Michele Pistone:

"As a law professor who routinely took her students to immigration courts for field work, Michele R. Pistone was irked to see how many noncitizens went unrepresented. . . . After obtaining a grant from Villanova, Pistone and a group of faculty designers including lawyers, professors and judges developed the idea into an academic program, now in its third year. The online program, called Villanova's Interdisciplinary Immigrations Studies Training for Advocates — or VIISTA for short — currently enrolls about 90 students from 42 states, with ages ranging from 21 to 85"

KJ

 

Fellowship at Michigan State University College of Law Immigration Law Clinic

Michigan State University College of Law invites applications for a two-year fellowship in its Immigration Law Clinic.  Click here for details.

KJ

Systemic Racism in the U.S. Immigration Laws

In 1998, the Indiana Law Journal published my analysis of race and the U.S. immigration laws.  The Journal just published my latest article on the topic.  (A teaser for the article can be found here.).  The article is based on, and inspired by, my remarks in April 2021 at the Jerome Hall Lecture at Indiana University Maurer School of Law. 

 

Here is the abstract to Systemic Racism in the U.S. Immigration Laws:

This Essay analyzes how aggressive activism in a California mountain town at the tail end of the nineteenth century commenced a chain reaction resulting in state and ultimately national anti-Chinese immigration laws. The constitutional immunity through which the Supreme Court upheld those laws deeply affected the future trajectory of U.S. immigration law and policy.

Responding to sustained political pressure from the West, Congress in 1882 passed the Chinese Exclusion Act, an infamous piece of unabashedly racist legislation that commenced a long process of barring immigration from all of Asia to the United States. In upholding the Act, the Supreme Court in an extraordinary decision that jars modern racial sensibilities declared that Congress possessed “plenary power”—absolute authority—over immigration and that racist immigration laws were immune from judicial review of their constitutionality.

The bedrock of U.S. immigration jurisprudence for more than a century and never overruled by the Supreme Court, the plenary power doctrine permits the treatment of immigrants in racially discriminatory ways consistent with the era of Jim Crow but completely at odds with modern constitutional law. The doctrine enabled President Trump, a fierce advocate of tough-as-nails immigration measures, to pursue the most extreme immigration program of any modern president, with
devastating impacts on noncitizens of color.

As the nation attempts to grapple with the Trump administration’s brutal treatment of immigrants, it is an especially opportune historical moment to reconsider the plenary power doctrine. Ultimately, the commitment to remove systemic racism from the nation’s social fabric requires the dismantling of the doctrine and meaningful constitutional review of the immigration laws. That, in turn, would open the possibilities to the removal of systemic racial injustice from
immigration law and policy.

KJ

Immigration Article of the Day: Racial Borders by E.Tendayi Achiume

Racial Borders  by E. Tendayi Achiume, Georgetown Law Journal (2022 Forthcoming)

Abstract

This Article explores the conceptualization of race and racial justice in relation to international borders in dominant liberal democratic discourse and theory of First World nation-states. It advances two analytical claims. The first is that contemporary national borders of the international order—an order that remains structured by imperial inequity—are inherently racial. The default of liberal borders is racialized inclusion and exclusion that privileges “Whiteness” in international mobility and migration. This racial privilege inheres in the facially neutral legal categories and regimes of territorial and political borders, and in international legal doctrine. The second is that central to theorizing the system of neocolonial racial borders is understanding race itself as border infrastructure. That is to say, race operates as a means of enforcement of liberal territorial and political borders, and as a result, international migration governance is also a mode of racial governance. Normatively, the Article outlines the specific relational injustices of racial borders.

KJ