Speaking on the panel “The Judicial Role in the U.S. Immigration Courts: A Unique Perspective” are, from left, Elizabeth Mendoza, William K. Zimmer, Rosemary Vega and Jimmie L. Benton.
Feb. 03, 2023 –– The 2023 Joseph A. Vail Asylum Law Workshop offered insights and strategies from top immigration law experts on the nuances of this ever-changing landscape, instructing hundreds of attendees and raising thousands of dollars to support the University of Houston Law Center’s Immigration Clinic.
More than 500 registrants gathered online and in-person to learn about the judicial role in U.S. immigration courts, best practices for representing asylum seekers including unaccompanied minors, navigating federal court appeals, and obtaining forensic and country conditions experts at this year’s Joseph A. Vail Asylum Law Workshop.
The first panel on “The Judicial Role in the U.S. Immigration Courts: A Unique Perspective” offered insights from retired immigration judge Jimmie L. Benton, retired immigration judge William K. Zimmer, and Rosemary Vega and Elizabeth Mendoza, members of the American Immigration Lawyers Association (AILA) and Executive Office for Immigration Review (EOIR) liaisons.
Judge Benton, a former immigration judge with the U.S. Department of Justice, provided an overview of Title 42, a federal law enacted in March 2020 that “bars entry and allows for the expulsion of anyone without normal safeguards for those fleeing persecution at the southern border if there is a serious, dangerous introduction of a communicable disease.”
Large groups of people are exempt, including U.S. citizens, residents, and those with valid travel documents.
"But it does not allow for people who are simply seeking asylum or fleeing to enter the United States,” Benton said.
Under Title 42, asylum seekers at the U.S. border are subject to either “turnbacks,” being turned away at or before reaching the border, or expulsion, removal of an asylum seeker who has already entered the country, according to Benton.
“The Biden administration has attempted to make the situation more palatable by recently authorizing 30,000 [asylum seekers] per year entrance from Haiti, Cuba, and Venezuela,” Benton said. “But the process here requires them to make applications in their country, then to enter the U.S. on parole for a year, and then prosecute their claims. This is an attempt to reduce the deluge of folks at the southern border.”
New border enforcement measures have been put into place to “create additional safe and orderly processes for people fleeing humanitarian crises to lawfully come to the United States,” per the Department of Homeland Security. One such measure includes the CBP One application. Through CBP One, asylum seekers can schedule a time and place for inspection and processing in lieu of arriving at an entry point unannounced. The process is free, according to Benton, but one major drawback is that it “requires some sophistication on the part of the attending immigrant with technology and having a cell phone.”
“It’s a work in progress,” Benton said.
Next, Judge Zimmer, a former immigration judge serving in Miami and Houston, examined 2022 asylum decisions published by the U.S. Fifth Circuit Court of Appeals, underscoring the implications for each.
For example, according to Zimmer, in Rosaura Aurora Sanchez-Amador, et. al. v. Garland (April 11, 2022) it was deemed that “an asylum applicant’s subjective belief that authorities would be unwilling or unable to control a private persecutor is not sufficient for asylum eligibility, even when country condition evidence supports that belief, if underlying events in the factual record do not support that conclusion.”
In Lamy Bertrand v. Garland(June 3, 2022), the court ruled that “to justify an asylum claim where private actors are the alleged persecutors, the asylum applicant must show that the government condoned the private violence or at least demonstrated a complete helplessness to protect the asylum applicant."
"You have to understand [these concepts], and if you understand where the decision maker's coming from, then you can anticipate and try to get into the record certain information that you can use to oppose that point of view or that interpretation," Zimmer said. "That's why these old cases can be very helpful."
The Asylum Law Workshop was hosted by the UH Law Center’s Immigration Clinic, which is directed by Teresa Messer. This annual workshop is named after former federal immigration judge, lawyer, and UH Law Center professor Joseph A. Vail. Attendees were eligible to receive four hours of CLE training, including two hours of ethics.
