Anna Bninski '23
Features Editor
On September 15, the Honorable Paul W. Schmidt, a retired immigration judge, gave a talk at the Law School titled “The New Due Process Army.” Drawn by both the prospect of insights into how one might upend the current immigration system and the allure of a non-pizza free lunch,[1] a good crowd of students showed up. The talk was sponsored by the Immigration Law Society, the International Refugee Assistance Project’s chapter at UVA Law, and the UVA Immigration Law Clinic.
Judge Schmidt, who retired from the bench in 2016, served both on the Arlington, Va., Immigration Court, and as a member of the Board of Immigration Appeals in Falls Church. He is now an adjunct professor at Georgetown Law.[2]
Pictured: The Honorable Paul W. Schmidt during his fiery talk in the Caplin Pavilion on September 15, 2022
The talk gave us at UVA a taste of what must be a very lively classroom experience for Judge Schmidt’s students at GULC. He started his remarks with complimentary words about the Law School’s immigration law faculty, particularly recommending Professor Amanda Frost’s 2021 book, You Are Not American: Citizenship Stripping From Dred Scott to the Dreamers.
Then, having promised to deliver “the truth, the whole truth, and nothing but the truth . . . as I see it,” Judge Schmidt informed attendees that he was “the PowerPoint of this presentation” before embarking on a freewheeling and impassioned speech outlining the shortcomings of the Executive Office for Immigration Review (EOIR) under both the Trump and Biden administrations. He characterized EOIR as a place where “due process . . . legal scholarship, and best practices go to die.”
The Trump administration, Judge Schmidt averred, pursued a campaign of dehumanization in order to erode people’s rights before the law, with particular effect on migrants, women, children, and people of color. Judge Schmidt also had strong words of criticism for the Department of Justice under Merrick Garland, stating that he had been hopeful for change with the new administration, but that time had not borne out the Biden Campaign’s promises of immigration reform. Instead, Judge Schmidt stated that immigration courts remain awash in “continuing nativist nonsense.”
An EOIR practice that Judge Schmidt took particular exception to was ADR, or “aimless docket reshuffling.”[3] He related woes from immigration attorneys that included immigration courts advancing cases without notifying counsel and scheduling the same attorney for twenty trials in the same month—or for multiple hearings on the same day, in different states, making representation effectively impossible. ADR, Judge Schmidt opined, is “what Garland and the rest of his clueless crew were hired to fix.”
Judge Schmidt also stated that EOIR and the Board of Immigration Appeals need new leadership—and new criteria for selecting immigration judges. The lack of consistent due process protection for people going through immigration court proceedings particularly troubled him. “Due process in immigration court is whatever is expedient on any given day,” he stated. Judge Schmidt also advocated for a coherent ethos of civil rights advocacy that looks at systemic mistreatment and draws connections between, for example, the disenfranchisement of Black voters in the South and the failure of the immigration system to adequately serve Haitian refugees.
Judge Schmidt ended his prepared remarks with the rallying cry, “Due process forever!” and then took questions from the audience.
One listener asked for tips on how to build credibility in asylum cases, when the applicant may not have initially supplied details or, affected by trauma, may have made conflicting statements. Judge Schmidt recommended gathering as much external documentation as possible, such as police reports or data on country conditions, and, if appropriate, to seek a PTSD diagnosis. “Don’t wait for cross-examination,” he advised; rather, counsel would do well to immediately address any discrepancies. He also noted that an immigration judge is generally obliged to consider the record as a whole, so a good array of supporting evidence can ameliorate the effect of confusion in prior statements by the applicant.
Judge Schmidt also noted that if immigration judges have been to border facilities at all, they have probably only experienced a very sanitized tour. Errors in paperwork by border officials are common, and there’s data available on that fact that an attorney may wish to get on record if the original paperwork is what’s causing the discrepancy—it helps to show that government record-keeping, not the applicant, is to blame.
Other practice tips include finding out as much as possible about the judge in a case (are there particular groups for whom he or she has a soft spot?) and making as complete a record as possible from which to appeal, if necessary.
In response to a question about what guaranteed access to counsel in immigration proceedings might look like, Judge Schmidt lamented the “gonzo scheduling system” and lack of coordination that prevent pro bono efforts from filling that gap, but he spoke hopefully about efforts to train non-lawyers to serve as accredited representatives. Judge Schmidt proposed that retired professors would be an excellent population to tap into. “Who better to put together some of these cases that depend on country conditions or making people understand history or country conditions? [There’s] a lot of cultural anthropology in presenting immigration cases.”
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amb6ag@virginia.edu
[1] Vu Noodles: a crowd-pleaser for sure.
[2] This article can’t possibly cover everything he talked about; anyone seeking more Judge Schmidt info can get it on his blog, Immigration Courtside.
[3] As someone whose immediate association with the acronym ADR is Alternative Dispute Resolution, I suffered brief but substantial confusion.