COLLISION COURSE: 3rd Cir. Case Shows How Article III Courts’ Demand For Cogent, Detailed Analysis From Immigration Judges Will Collide Head On With Barr’s Plans To Further “Dumb Down” The Immigration Court System! — Result Could Flood Article IIIs With More “Idiot Orders!” — Liem v. Attorney General

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Liem v. Attorney General, 3d Cir., 04-19-19, published

PANEL: HARDIMAN, SCIRICA, and RENDELL, Circuit Judges

OPINION BY:  Judge Rendell

KEY QUOTE:

Because the BIA did not explain its conclusion and did not meaningfully consider much of the evidence presented by Liem, we will grant his petition for review, vacate the denial of his second motion to reopen, and remand to the BIA for further proceedings consistent with this opinion. In doing so, we do not decide whether Liem has shown materially changed conditions in Indonesia warranting reopening of his removal proceedings. Rather, we conclude that the abovementioned evidence contradicting the BIA’s determination is strong enough to require the BIA to afford it more thorough consideration. We remand for the BIA to meet its heightened duty and meaningfully consider all of the evidence, which may or may not yield a different result.

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Welcome tho the world of today’s BIA, where it’s all about numbers — who cares about analysis.

And, Barr fully and contemptuously intends to make it even worse — stuff it down the throats of the Article IIIs — by encouraging more use of non-analytical “summary affirmances” at the same time that Immigration Judges are being pushed to enter more “idiot orders” denying relief without any real reasoning. Then, he’s going to count on “Trump’s Chumps” among the Article IIIs to “Chevron” and “Brand X” themselves right out of existence.

So, we’re about to find out how much integrity the Article IIIs really have. Will they resist and appropriately “stuff” Barr’s blatant, unethical attempt to shift the “backlog” to them by “just saying no” and returning these cases en masse? Will they finally step up to the plate and rule this entire Immigration “Court” farce unconstitutional, halting most removals until Congress establishes a Due Process compliant independent system?

Or, as Trump, Sessions, and now Barr count on, will they function as “Trump’s Chumps,” mere “stationmasters on the deportation railroad” whose job it is to count the cattle cars of humans heading south? Folks in robes willing to “go along to get along” with the “new Jim Crows” by tanking their responsibility to enforce the Constitution for migrants. Just “defer” to non-existent analysis and parodies of court proceedings because we’re dealing with the vulnerable who can’t fight  back.

History will be watching how they perform. So far, Trump & Co. haven’t been completely right, particularly about the lower Federal Court judiciary. They have encountered quite a few judges appointed by both parties ready and willing to stop the Administration’s all out assault on the rule of law and our Constitution.

But, the Trumpsters  haven’t been completely wrong about the higher Federal Courts either. The totally disingenuous performance of the “Trump Chump Five” during oral argument this past week at the Supremes on the “Census Case” — a “no brainer” teed up by the lower courts that an impartial and functional Court would have used to deliver a resounding 9-0 rebuke of Trump’s “DOJ Legal Sycophant Ethics-Free Team” — could have been scripted by Stephen Miller with a little help from Steve Bannon.

The big problem here is that folks in the “ivory tower” of the U.S. Circuit Courts and the Supremes operate outside the real world. They don’t seem to be able to picture themselves or their families or loved ones in the cattle cars heading south on the railroad. Indeed, unlike trial judges, they  don’t even have to face the folks they are disenfranchising, dehumanizing, and whose legal rights they are trashing.

Their failure to connect the law with humanity, human rights, moral values, and simple fundamental fairness may well be the downfall for all of us. At some point, they might find that the “Liar-in-Chief” and his toadies no longer need their stationmasters — that complicit judges have become as dispensable as the humans whose lives and rights they have failed to protect.

PWS

04-27-19

 

 

3RD CIR FINDS BIA ERRED IN CLASSIFYING BANGLADESH BNP AS “LEVEL III TERRORIST ORGANIZATION” — DECRIES BIA PANEL INCONSISTENCIES, LACK OF ACCESS TO UNPUBLISHED DECISIONS — Uddin v. Attorney General

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Uddin v. Attorney General, 3rd Cir., Sept. 6, 2017

BEFORE: GREENAWAY, JR., SHWARTZ, and RENDELL, Circuit Judges

OPINION BY: Judge Rendell

KEY QUOTE:

“While we will deny the petition for review challenging the Board’s ruling dismissing Uddin’s Convention Against Torture (“CAT”) claim, we will grant the petition in part and remand on his withholding of removal claim. The Board has pointed to terrorist acts by BNP members. But it did not find that BNP leadership authorized any of the terrorist activity committed by party members. Today, we join the reasoning of the Seventh Circuit and the Board in many of its own opinions by holding as follows: unless the agency finds that party leaders authorized terrorist activity committed by its members, an entity such as the BNP cannot be deemed a Tier III terrorist organization.

. . . .

Second, the rule we announce mirrors the Board’s own reasoning in the mine-run of its cases involving the BNP’s status as a Tier III organization. In fact, in some cases where IJs did not make a finding as to BNP leaders’ authorization of allegedly terrorist acts, the Board found error in the IJs’ omissions, and remanded to the IJs to take up that very question of authorization. In such cases, the Board bolstered

used the RAB to conduct numerous extra-judicial killings of BNP members. Thus, for purposes of the BNP’s status as a terrorist organization, the RAB’s conduct cannot be ascribed to that group during the time period relevant to Uddin’s case.

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its reasoning by referencing Seventh Circuit opinions suggesting that some finding on authorization is necessary to assign a group Tier III status. See Khan v. Holder, 766 F.3d 689, 699 (7th Cir. 2014) (“An entire organization does not automatically become a terrorist organization just because some members of the group commit terrorist acts. The question is one of authorization.”); Hussain v. Mukasey, 518 F.3d 534, 538 (7th Cir. 2008) (“An organization is not a terrorist organization just because one of its members commits an act of armed violence without direct or indirect authorization . . . .”).

. . . .

Further, today’s ruling should help provide the Board a principled method of adjudicating Tier III cases, an area of law with little guidance from the Courts of Appeals. This dearth of precedential opinions has resulted in highly inconsistent results regarding the BNP’s status as a terrorist organization: our preliminary research in preparation for oral argument turned up several Board rulings concluding that the BNP was not in fact a terrorist organization. These conclusions were in stark contrast to the Board’s finding in Uddin’s case.

Faced with these contradictory opinions, in advance of oral argument we asked the Government to submit all Board opinions from 2015-2017 addressing the terrorism bar as it applies to the BNP. (Those opinions are not all publicly available.) The Government’s submission—fifty-four opinions in total—did not bolster our confidence in the Board’s adjudication of these cases.

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In six of the opinions, the Board agreed with the IJ that the BNP qualified as a terrorist organization based on the record in that case. But in at least ten, the Board concluded that the BNP was not a terrorist organization. In at least five cases, the Government did not challenge the IJ’s determination that the BNP is not a terrorist organization. And in one case, the Board reversed its own prior determination, finding that that “the Board’s last decision incorrectly affirmed the Immigration Judge’s finding that the BNP is a Tier III terrorist organization.” Many of the cases discussed the BNP’s terrorist status during the same time periods, reaching radically different results.

We recognize that the Board’s decisions are unpublished, and thus lack precedential value. We also note the Government’s argument that the BNP’s status as an undesignated terrorist organization is a “case-specific” determination based on the facts presented. That said, something is amiss where, time and time again, the Board finds the BNP is a terrorist organization one day, and reaches the exact opposite conclusion the next.

Even more concerning, the IJ in this case stated that he was “aware of no BIA or circuit court decision to date which has considered whether the BNP constitutes a terrorist organization.” AR 68. At the time the IJ ruled, there were several such decisions, and now there are dozens. When asked at oral argument whether the IJ could access unpublished Board decisions regarding BNP’s terrorist status, the Government’s Attorney responded that he did not know. This is a troubling state of affairs.”

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Gee whiz, the Article III’s are finally starting to figure out some of the problems with having a supposedly due-process focused Appellate Court resident in an agency of the U.S. Department of Justice. And the quality and consistency of administrative justice in immigration is hardly likely to improve under the Sessions “just peddle faster and deport more folks while we mindlessly fill the system with DACA immigrants” program.

The Third Circuit arguably now knows more about what the BIA is doing in this area than then BIA itself. And, I can guarantee that they know more than Jeff Sessions or anyone at the DOJ.

Oh yeah, and hiring more Immigration Judges, giving them less training, moving them around for enforcement purposes, and giving them less time to turn out quality decisions isn’t likely to improve this “troubling state of affairs.” Moreover, by failing to provide and enforce uniform guidance, the BIA encourages the DHS to abuse the system by “rolling the dice” on cases (like this one) they clearly should lose, but could win, at the Immigration Court, rather than being required to settle cases and exercise prosecutorial discretion in the way almost all other prosecutors do, on every level of the U.S. system except the Immigration Court. What Sessions disingenuously calls “enforcing the rule of law” is actually, in the words of Jason Dzubow, a “mixture of cruelty and incompetence” (with some just plain old stupidity thrown in).

The only thing that will improve the quality of justice in the U.S. Immigration Court system is to get it out of the Executive Branch and into an independent structure forthwith. Otherwise, the Article III’s are going to find themselves between a rock an a hard place: rubber stamp the BIA’s questionable work product or take over the BIA’s function and insist that constitutional due process be satisfied.

PWS

09-07-17