Unpublished 7th Cir. Provides Sound Advice For U.S. Immigration Judges Who Want to Insure Due Process W/O Becoming Potted Plants! — Hernandez-Alvarez v. Sessions

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2017/D06-27/C:16-3516:J:PerCuriam:aut:T:npDp:N:1985804:S:0

“Next, Hernandez‐Alvarez argues that the judge violated his due process rights by “improperly assum[ing] the role of counsel for the Government.” He asserts that the judge had a “negative attitude” toward his case, “frequently interrupted” his lawyer, and “took over entire lines of questioning.” The judge, he adds, prejudged the case.1

This due process challenge raises a constitutional claim that confers jurisdiction over this part of the petition. See 8 U.S.C. § 1252(a)(2)(D), Kuschchak v. Ashcroft, 366 F.3d 597, 602 (7th Cir. 2004). On the merits, however, the Board did not err by deciding that the judge gave Hernandez‐Alvarez a fair hearing.

An immigration judge has the authority to “interrogate, examine, and cross‐ examine” a petitioner and any other witnesses. 8 U.S.C. § 1229a(b)(1). Immigration judges carry heavy caseloads and do not have time to waste. Like an appellate court, a trial judge in a bench trial can raise questions and try to focus the presentations to the court based on the judge’s understanding of the facts and law. Such efforts do not show that the judge has abandoned an impartial and neutral stance or has prejudged the case. See Barragan‐ Ojeda v. Sessions, 853 F.3d 374, 381–82 (7th Cir. 2017) (“When the IJ does not demonstrate ‘impatience, hostility, or a predisposition against’ an alien’s claim, and where the questions assisted in the development of the record on relevant points, the mere fact that the IJ elicited testimony is not inappropriate and certainly does not raise due process concerns.”); Kharkhan v. Ashcroft, 336 F.3d 601, 606 (7th Cir. 2003). On the other hand, as

1 Hernandez‐Alvarez relies on the following statement by the judge: “Well, Mr. Metcalf [Hernandez‐Alvarez’s attorney], I don’t see any point in continuing on with the respondent’s case. I just don’t see him eligible for cancellation of removal. I mean, you can continue the questioning, but one, you know, the records show that he has the ’99 conviction for domestic battery causing bodily injury; the Seventh Circuit has found that to be a crime of violence, and so he would be precluded from cancellation of removal eligibility statutorily. Secondly, he has a 2013 for domestic battery or aggravated battery, and he served approximately 150 days in jail. In addition, it’s only recently that the respondent by court order has been reestablishing a relationship with his children. So this case doesn’t even come close to being eligible for cancellation of removal. So do you want to ask some other questions concerning those topics, good moral character?”

No. 16‐3516 Page 5

we explained in Barragan‐Ojeda, that authority can be misused. We will order new hearings where judges have been hostile or abusive or have prevented rather than facilitated presentation of an alien’s case. 853 F.3d at 381, citing Rodriguez Galicia v. Gonzales, 422 F.3d 529, 539 (7th Cir. 2005); Podio v. I.N.S., 153 F.3d 506, 510 (7th Cir. 1998).

In this case, the judge posed appropriate questions that probed Hernandez‐ Alvarez’s statutory eligibility for relief. At the key hearing, both lawyers were new to the case. The judge was already familiar with the relevant circumstances, which did not need to be repeated. The judge’s questions about the extent of the hardship the children would suffer if Hernandez‐Alvarez were removed, the nature of his past criminal convictions, and his physical presence in the United States were right on target. They framed the challenge for Hernandez‐Alvarez and his lawyer, and the judge invited them to present additional evidence.

The process was similar to an appellate argument when a judge explains his or her understanding of the difficulties the lawyer’s client faces and invites response. Hernandez‐Alvarez has not identified any evidence that the judge prevented him from introducing, and his brief overlooks several opportunities the judge gave him to testify as he pleased. See Perez‐Fuentes, 842 F.3d at 511 (explaining that a petitioner does “not have a meaningful opportunity to be heard” when relevant evidence has been wrongly excluded). We also reject the argument that the judge prejudged the case. In the passage quoted in the footnote above, the judge reacted to the facts and evidence, identified the obvious and serious problems with Hernandez‐Alvarez’s application for cancellation of removal, and invited him to address them. That’s what a judge is supposed to do. Accordingly, the portion of the petition for judicial review that is not barred by 8 U.S.C. § 1252(a)(2)(B)(i) is DENIED.”

PANEL: Circuit Judges Posner, Kanne, Hamilton

Per Curiam

********************************************

PWS

07-02-17

 

 

Judge Posner Slams BIA For Ignoring Evidence Of Worsening Conditions In South Sudan — Deng Arej v. Sessions — 7th Cir.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2017/D03-28/C:15-2061:J:Posner:aut:T:fnOp:N:1937333:S:0

“Arej has conceded that he qualifies as a criminal alien under 8 U.S.C. § 1252(a)(2)(C), so our review of the Board’s decision is limited to issues of law. 8 U.S.C. § 1252(a)(2)(D). But it was a serious legal error for the Board to have ignored Arej’s evidence. As we noted in Iglesias v. Mukasey, 540 F.3d 528, 531 (7th Cir. 2008), the Board cannot make a reasoned decision to deny a motion to reopen if it ignores the evidence that a petitioner presents.

Furthermore, a competent immigration service would not ignore world events. The dramatically worsening conditions in South Sudan have been widely reported, with the young nation described as “cracking apart” and United Nations officials raising concerns about genocide. See, e.g., Jeffrey Gettleman, “War Consumes South Sudan, a Young Nation Cracking Apart,” New York Times, March 4, 2017, https://nyti.ms/2lHeELw. “Tens of thousands of civilians have been killed”; “every major cease‐fire that has been

No. 15‐2061 5

painstakingly negotiated by African and Western officials has been violated”; and “dangerous fissures are opening up within the South Sudanese military.” Id. And time doesn’t stand still. The Board’s order dismissing Arej’s appeal from the immigration judge’s denial of his motion to reopen was issued on May 8, 2015—almost two years ago. Considering that Arej has not yet been removed and that the order was perfunctory, the Board should consider whether he should be allowed to present evidence concerning current conditions in the two Sudans. See 8 C.F.R. § 1003.2(a).

The petition for review is therefore granted, the decision of the Board vacated, and the case remanded to the Board for further proceedings consistent with this opinion.”

***********************************

Seems like a South Sudan case would be a “no brainer” for reopening by the BIA. Not sure we even deport folks there. And, actually reviewing the evidence carefully would be a great first step toward becoming “the world’s best administrative tribunals, guaranteeing fairness and due process for all.” Or, has the vision become just a slogan from bygone years? He’s probably only eligible to apply for withholding or CAT, though, because of the nature of his criminal conviction.

PWS

03/29/17

MATT CAMERON IN THE BAFFLER: Trump’s Immigration Policies Promise To Make A Bad System Even Worse

https://thebaffler.com/outbursts/strangers-in-a-cruel-land?utm_campaign=Newsletter&utm_source=hs_email&utm_medium=email&utm_content=45427323&_hsenc=p2ANqtz–SrQwaCmT1prkolHBKrPKHSN4djFsqLNoveeB1BWE10ZO3rscc5BcXMhmwFedKjGnCbzzw56UKYKQ-sIulUP96Hwj8rw&_hsmi=45427323

“Donald Trump’s presidential campaign capitalized on a familiar brand of nativist anti-immigrant slander usually reserved for our nation’s most desperate times. It was an ugly old vein to mine, but now that he’s managed to strike electoral gold there, he is not wrong to view his election as a mandate to carry out his promise to enforce federal immigration law to its fullest extent. This would be alarming to friends of the Constitution under any circumstances, but especially so given Trump’s open embrace of white supremacy—as a concept, if not a movement—in the primaries. We haven’t encountered such an openly bigoted presidential campaign on the right since Pat Buchanan’s last failed insurgent run at the GOP nomination in 1996, and we have never seen an avowedly white-nationalist leader accede to the Oval Office.
Nor should any of us expect the chastening experience of actual governing to temper his outlook. Trump has proven at every opportunity that he is all but ineducable about even the simplest details of how immigration to the United States actually works. And this, it turns out, is probably one of the few things he has in common with a considerable majority of Americans.”

. . . .

The immigration system I keep hearing about from pundits and politicians (all of whom should know better) is almost entirely unmoored from actual fact. It seems to be a chimerical pastiche of the one we had before Ellis Island closed, the one we had just before the moon landing, and some sort of rosy Tomorrowland fantasy in which visas would be awarded to the undocumented if only they would do it the right way. This is not the system I work with every day.
When a white, native-born American says, “my family came here the right way,” what the speaker almost invariably means is that one or more of his ancestors came to the United States without a visa during a time of virtually unrestricted European migration. They boarded a trans-Atlantic ocean liner, stood in line at an immigration inspection station for the better part of a day, answered a standard series of twenty-nine questions, were subjected to a medical exam, and were admitted indefinitely to the United States. That’s how my Scottish great-grandparents did it in 1916. If you were born in the United States with European ancestors, it’s probably how you came to be here too. That system ended in 1924. Its successor, the “national origins” quota system (a more restricted but still relatively open “line”), was abolished in 1965. But I still regularly meet well-meaning fellow citizens who believe that anyone who deserves a chance can simply “fill out the forms,” “get in line,” and “come the right way, like my family did.” At which point, I have to patiently explain that they can’t.

For most of my undocumented neighbors, in East Boston and beyond, there are no forms. There is no line. There never was. Telling an undocumented Mexican dishwasher that he should “wait in line, like my family did” is no more realistic than advising him to switch to the same model of iPhone your great-grandfather used. Yet the lie persists, with nearly every presidential candidate since George H. W. Bush invoking the imaginary “line.”

. . . .

[Bill] O’Reilly was too charitable. There is no reason to believe that Trump has ever understood the basic precepts of due-process protection. Commitment to due process would have been fundamentally incompatible with Trump’s record as a casino magnate, a New York City landlord, or an authoritarian game show host given unlimited license to “fire” contestants at whim.

Trump has signaled the likely place of due process in his immigration system by promising to immediately deport 2 to 3 million “criminal aliens.” This staggering number, nearly the entire urban population of Chicago, would represent more deportations than Obama (the current record-holder) completed in eight years, and more than twice as many as were carried out during Operation Wetback.

. . . .

In fifty-eight immigration courts nationwide, immigration judges are operating (per a recent study) at a degree of mental stress equivalent to that of an emergency-room doctor. “This case,” sneered federal judge Richard Posner in a recent dissent, “involves a typical botch by an immigration judge.” Posner, punching down from the lofty heights of a federal appeals court, went on to concede graciously that the immigration court’s status as “the least competent federal agency,” might have something to do with congressional underfunding and the resultant “crushing workloads.”
Our nation’s roughly 250 immigration judges [now approximately 305] are now responsible for managing a record backlog of more than five hundred thousand pending deportation cases, with thousands more pouring into the system each day. The judges I appear before in the Boston immigration court are humane and learned experts who work long hours, in circumstances that couldn’t be less familiar to Judge Posner, but they are as susceptible to human error as any judge anywhere.

In an executive order signed within days of his inauguration, Trump authorized Congress to triple the number of Immigration and Customs Enforcement agents on the ground. He has made no mention of any plans to extend the courts the same courtesy, but this new flow of cases simply cannot be sustained within today’s judicial plumbing.”

*********************************

Cameron’s full, hard-hitting article is definitely worth a read. And, as he points out, quite sadly, it’s likely to get much worse from a due process standpoint before it gets better.

I also think he is right that few U.S. Court of Appeals Judges would be able to survive working as U.S. Immigration Judges under today’s incredibly difficult circumstances and conditions.

PWS

03/15/17

 

Judge Posner, Split 7th Circuit, Slam IJ, BIA On Denial Of Protection To Honduran With HIV!

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2017/D01-19/C:15-2619:J:Posner:aut:T:fnOp:N:1898108:S:0

********************************

The case, full text at the above link, is VELASQUEZ‐BANEGAS, v. LYNCH.  

I agree with Judge Posner’s bottom line that protection should have been granted on this record.  But, I think that he was overly harsh on the Immigration Judge.

These would be difficult cases for any judge at any level of our system.  One of the significant problems is that the Appellate Division of the Immigration Court, the Board of Immigration Appeals (“BIA”) has failed to provide adequate positive guidance on granting protection.

The overwhelming number of BIA precedent cases dealing with asylum, withholding of removal, and relief under the Convention Against Torture are denials by the BIA.  But, even with asylum grant levels leveling off and actually falling slightly over the past several years, the majority of applicants for protection actually qualify for some form of relief at the trial level based on fear of persecution or torture.

The unnecessarily negative approach of the BIA in its precedent decisions both gives a misleading negative guidance to Immigration Judges and creates the impression with U.S. Court of Appeals Judges that the system is even more skewed against applicants than it actually is.

Although I agreed with the majority in Velasquez, I think that the concluding paragraph of the Judge Ripple’s dissent also makes some good points:

“Immigration cases always pose a special burden on United States judges. As Jacques Maritain so eloquently put it: “We are all wounded souls.” See Jacques Maritain, Réflexions sur lʹAmerique 87–91 (1958). Every American, including every United States judge, has a family memory that includes ancestors who came from some place where life was not as good as it is here. The DNA of our national character makes it very difficult to tell an individual that he cannot enjoy the same liberty, safety, and security that we enjoy. When the individual suffers from a medical condition that cannot be treated as well in the country to which he is returned, basic humanitarian values make the task even more difficult. No doubt, those who must make necessary policy choices and those who must enforce those choices feel, or should feel, that same angst. But immigration must be regulated, and, in this Country, national policy is set by Congress and enforced by the Executive. Our own task as judges is limited. Because the immigration judge’s determinations were supported by substantial evidence, I respectfully dissent.”

Food for thought.

PWS

01/23/17