Category: Judicial Review

😎⚖️🗽 NDPA SUPERSTAR 🌟 ELSY M. RAMOS VELASQUEZ WINS ANOTHER ROUND FOR THE SIAHAAN FAMILY! — “Temporary” BIA Appellate Immigration Judge Elise Manuel Issues Helpful Correct Guidance On Equitable Tolling, Ineffective Assistance In 4th Cir. MTR Context! — Why Is This The Exception, Rather Than The Rule @ Garland’s Dysfunctional EOIR?

 

Elsy M. Ramos Velasquez
Elsy M. Ramos Velasquez
Associate
Clark Hill PLC
D.C.

Elsy says “It is truly an honor to represent this family.” Here is a copy of Judge Manuel’s excellent decision:

Siahaan, Binsar_BIA Order Granting Motion to Reopen

 

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

For more on Elsy’s previous efforts on behalf of this family, see https://immigrationcourtside.com/category/pro-bono-representation/clark-hill-plc/elsy-m-valasquez-esquire/

Clear, concise, helpful, and correct. This is the type of guidance that should be in BIA precedents! It has the potential to “move” large number as of cases through Garland’s backlogged system. 

It would also deter ill-advised “bogus oppositions” to meritorious motions such as the one woodenly advanced by DHS in this case. They do it because sometimes they are rewarded by lousy EOIR judging. At worst, it’s a crap shoot as EOIR currently functions (or, in too many cases, malfunctions). 

Start consistently granting meritorious motions like this and the dilatory tactics from DHS will stop! In any system, particularly one as backlogged as this one, getting the Government to stop wasting judicial time and promoting bad results in a big step forward! 

The prior Administration made an all-out effort to institutionalize bias and bad judgment. Garland has been far, far too slow in exposing and rooting out this bad behavior!

Just look around for some helpful, positive “precedential” guidance from the BIA on equitable tolling in the Fourth Circuit. Let me know if you find any!

So what aren’t cases like this precedents? Why does Garland’s BIA instead keep publishing a steady stream of obtuse, poorly reasoned, anti-immigrant precedents written by Trump holdovers. These push IJs in the wrong direction, lead to prolonged wasteful litigation, reinforce the toxic “culture of denial,” create a “false narrative” that denies the merits of many respondents’ claims, and, worst of all, abrogate the BIA’s duty to insure fundamental fairness and due process for all! 

Where’s the positive guidance on how to grant gender-based and family-based asylum cases, building on the restoration of A-R-C-G- to clear out meritorious old cases?

Where’s the positive guidance on how to “leverage” PD and administrative closing to reduce backlogs? 

Where’s the positive precedent on expeditiously granting reopening in the many non-LPR cancellation cases mishandled by EOIR in light of Pereira and Niz-Chavez? 

Where’s the common sense workable rule on nexus that reflects “mixed motive” and incorporates ordinary concepts of causation while  jettisoning the prior Administration’s bogus “look for any motivation that doesn’t qualify, no matter how attenuated or contrived” approach?

Where’s the reasonable bond guidance that would promote consistency and end the routine practice of setting absurdly high bonds in some Immigration Courts?

Garland’s “Miller Lite Holdover” BIA continues to fail, flail, and betray the Administration’s promise to appoint better, more broadly experienced, representative Federal Judges at all levels, including the “retail level.” However, a number of his “Temporary” Appellate Immigration Judges continue to outshine and outperform their holdover colleagues. See, e.g., https://immigrationcourtside.com/2022/02/26/%f0%9f%91%a9%f0%9f%8f%bb%e2%9a%96%ef%b8%8f-temporary-appellate-judge-beth-liebmann-gets-it-right%f0%9f%98%8e-but-garlands-bia-majority-steamrolls/

With the available talent to reshape the BIA into a body that would actually fulfill the vision of “through teamwork and innovation be the world’s best tribunal guaranteeing fairness and due process for all” why does Garland continue to screw immigrants and build more backlog by treating “Miller Lite Holdovers” as if they were life-tenured judges? They aren’t! 

Although Garland appears to be in denial, “immigration judging” is some of the most consequential and important decision-making in the entire Federal Judicial System! Many, probably the majority, of those languishing in Garland’s out of control, largely self-created 1.6 million case EOIR backlog have strong claims to remain in a fair and efficient system. Yet, you would never know it by the indolent way Garland has handled the BIA mess (82,000 pending appeals) and his failure to speak out and lead by example on due process, fundamental fairness, racial justice, and human rights. 

A new, functioning, expert, star-studded BIA, dedicated to due process, fundamental fairness, equal justice, human rights, and best practices, would be a great starting place! A year into an Administration that should know better, it’s long, long overdue!

Meanwhile, Elsy and other talented, motivated, committed members of the NDPA will continue to pound and expose Garland’s dysfunctional “courts” at all levels of the judicial system until we get the change that we need and that was (falsely) promised!

🇺🇸 Due Process Forever!

PWS

03-10-22

 

  

Related posts:

  1. 🆘🤮IS 11TH CIR. GROWING WEARY OF GARLAND’S SCOFFLAW BIA? —Two Trips To The Circuit, & The BIA Still Violates Own Regulations, Ignores Precedent, Spouts Gibberish While OIL’s Defense Of This Nonsense & Malfeasance By EOIR Raises Serious Ethical Questions! — THAMOTAR v. U.S. ATT’Y GEN. — Garland’s Dysfunctional & Systematically Unjust Courts Undermine OUR Democracy☠️ — Demand An IMMEDIATE End To The Scofflaw Nonsense🤡 🧹 At OUR Justice Department! 🏴‍☠️
  2. ⚖️🧑🏽‍⚖️JUDICIAL REVIEW — C.A. 2 — Brace Of Bad BIA Bobbles On Basics Brings “Culture Of Denial” Into Focus — Justice Will Continue To Be Illusive @ EOIR 👎🏽 Until Garland Steps Up & Replaces His Fatally Flawed BIA With Real Judges Who Are Progressive Practical Scholars In Immigration, Due Process, Human Rights, With A Firm Commitment To Bringing Racial & Gender Equity To Now-Disgraced Immigration Courts!🤮
  3. 🏴‍☠️☠️⚰️🆘NO JUSTICE @ JUSTICE! — OUTRAGE OF PROGRESSIVE EXPERTS CONTINUES TO GROW AS GARLAND FAILS TO VACATE SESSIONS/BARR RACIST, MISOGYNIST, ANTI-IMMIGRANT, UNETHICAL, BIASED PRECEDENTS — “Garland’s Star Chambers” Careen Further Out Of Control As AG Dithers While Lives Of Vulnerable Refugee Women Hang in Balance & Pro Bono Advocates Are Forced To Exhaust Resources Fighting Trump DOJ’s Misdeeds That Biden Has Failed To Fix, Despite Promises — “Unforced Errors,” Lack Of Competent Progressive Leadership Continue To Plague Flawed Immigration Agenda @ Justice, Offend Dem Supporters! — Expert Professors Karen Musalo & Stephen Legomsky Call For Immediate Vacating Of Repulsive Matter of A-B- Abomination Before More Lives Of Women Of Color Are Lost!
  4. 🏴‍☠️👎🏽🤮 AIMLESS DOCKET RESHUFFLING (“ADR”) ON STEROIDS! — EOIR Dysfunction Shows What Happens When “Captive Court System” Kowtows To Political Handlers Rather Than Serving The Public! — Jason Dzubow, The Asylumist, Reports!

🎊🎉🍾THE GIBSON REPORT IS BACK!😎😎😎 — 03-07-22 — Congrats To NDPA Stalwart 🗽 Liz Gibson On Her New Job As Managing Attorney @ National Immigrant Justice Center!  

 

Elizabeth Gibson
Elizabeth Gibson
Managing Attorney
National Immigrant Justice Center
Publisher of “The Gibson Report”

Weekly Briefing

 

Note: The briefing is back after a short hiatus while I transitioned to a new position at NIJC. It will be coming from my gmail for a few weeks while I set up a more long-term distribution system. In the meantime, please add egibson@heartlandalliance.org to your trusted contact list so that any future messages do not go to spam.

 

CONTENTS (click to jump to section)

  • PRACTICE ALERTS
  • NEWS
  • LITIGATION & AGENCY UPDATES
  • RESOURCES
  • EVENTS

 

PRACTICE ALERTS

 

eROPs: EOIR has begun digitizing some paper records of proceedings (ROPs). Once an ROP is an eROP, only ECAS electronic filing will be permitted on that case. However, this will be a lengthy process and it sounds like EOIR is prioritizing conversion of smaller records first.

 

TOP NEWS

 

Secretary Mayorkas Designates Ukraine for Temporary Protected Status for 18 Months

DHS: Individuals eligible for TPS under this designation must have continuously resided in the United States since March 1, 2022. Individuals who attempt to travel to the United States after March 1, 2022 will not be eligible for TPS.

 

USCIS to Offer Deferred Action for Special Immigrant Juveniles

USCIS: U.S. Citizenship and Immigration Services today announced that it is updating the USCIS Policy Manual to consider deferred action and related employment authorization for noncitizens who have an approved Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, for Special Immigrant Juvenile (SIJ) classification but who cannot apply to adjust status to become a lawful permanent resident (LPR) because a visa number is not available.

 

Courts give dueling orders on asylum limits at border

AP: A federal appeals court on Friday upheld sweeping asylum restrictions to prevent spread of COVID-19 but restored protections to keep migrant families from being expelled to their home countries without a chance to plead their cases. Almost simultaneously, a federal judge in another case ruled that the Biden administration wrongly exempted unaccompanied children from the restrictions and ordered that they be subject to them in a week, allowing time for an emergency appeal.

 

Poor tech, opaque rules, exhausted staff: inside the private company surveilling US immigrants

Guardian: BI claims it provides immigrant tracking and ‘high quality’ case management. A Guardian investigation paints a very different picture. See also Over 180,000 Immigrants Now Monitored by ICE’s Alternatives to Detention Program.

 

Delays Are Taking a Costly Toll on Frustrated Workers

Bloomberg: The estimated wait time for a work permit has risen to eight to 12 months, up from about three months in 2020, according to data from U.S. Citizenship and Immigration Services.

 

Texas Border Op Expected To Grow Unless Feds Intervene

Law360: Texas’ Operation Lone Star border security initiative has expanded over the past year despite courtroom setbacks revealing cracks in its legal foundation, and it appears poised to grow further unless the federal government steps in to confront it.

 

LITIGATION & AGENCY UPDATES

 

SCOTUS: Wooden v. United States, relevant to “single scheme of criminal misconduct”

SCOTUS: “Wooden committed his burglaries on a single night, in a single uninterrupted course of conduct. The crimes all took place at one location, a one-building storage facility with one address. Each offense was essentially identical, and all were intertwined with the others. The burglaries were part and parcel of the same scheme, actuated by the same motive, and accomplished by the same means.”

 

Justices weigh the effect of foreign borders and national security in Bivens actions

SCOTUSblog: The Supreme Court on Wednesday [in oral arguments] returned to the scope of the right to sue federal officers for damages under Bivens v. Six Unknown Named Agents, in a case arising from events surrounding an (unfairly) disparaged inn and suspicious characters near the U.S.-Canada border.

 

CA4 on Changed Country Conditions: Hernandez V. Garland

Lexis: As we noted above, while (b)(4) requires “changed country conditions,” (b)(3) does not. Thus, the BIA’s reference to a “material change in country conditions” and the analysis that followed shows that the BIA applied § 1003.23(b)(4). In applying the standard of § 1003.23(b)(4) to a timely filed motion, the BIA acted contrary to law.

 

Unpub. CA6 Claim Preclusion Victory: Jasso Arangure v. Garland

Lexis: . After he pled guilty to first-degree home invasion, the Department of Homeland Security initiated removal. But the removal didn’t go as planned: DHS failed to show that Jasso was in fact removable, and the immigration judge terminated the proceeding. So DHS tried again. It started a second removal proceeding based on a new legal theory but the same underlying facts. The problem? The doctrine of claim preclusion prevents parties from litigating matters they failed to raise in an earlier case. Because claim preclusion barred the second removal proceeding, we grant the petition for review, vacate, and remand.

 

Massachusetts judge can be prosecuted for blocking immigration arrest, court rules

Reuters: A federal appeals court on Monday declined to dismiss an “unprecedented” criminal case filed during the Trump administration against a Massachusetts judge accused of impeding a federal immigration arrest of a defendant in her courtroom.

 

16 AGs Back Illinois Over Detention Contract Ban At 7th Circ.

Law360: Sixteen attorneys general of Democratic-led states, including the District of Columbia, are defending a new Illinois law phasing out immigrant detention contracts and urging the Seventh Circuit to dismiss a challenge by two Illinois counties, saying the policy does not interfere with federal enforcement of immigration law.

 

A.C.L.U. Lawsuit Accuses ICE Jailers of Denying Detainees Vaccines

NYT: People with health conditions that place them at high risk from Covid-19 have been denied access to coronavirus vaccine booster shots while in federal immigration detention, the American Civil Liberties Union said in a lawsuit filed on Tuesday.

 

U.S. to process some visas in Cuba after 4-year hiatus

Reuters: The U.S. Embassy in Havana announced on Thursday it would increase staffing and resume some visa processing in Cuba several years after the Trump administration slashed personnel at the facility following a spate of unexplained health incidents.

 

EOIR to Open Hyattsville and Laredo Immigration Courts

AILA: EOIR will open immigration courts in Hyattsville, Maryland, and Laredo, Texas, today, February 28, 2022. The Hyattsville and Laredo immigration courts will have 16 and 8 immigration judges, respectively. Both courts will hear transferred cases; EOIR is notifying parties whose locations have changed.

 

DHS Designates Sudan and Extends and Redesignates South Sudan for TPS

AILA: Due to conflict in both regions, DHS will extend and redesignate South Sudan for TPS for 18 months, and designate Sudan for TPS for 18 months. The extension and redesignation of South Sudan is in effect from 5/3/2022, through 11/3/2023. The memo details eligibility guidelines.

 

Lockbox Filing Location Updates

AILA: USCIS announced that its website will now feature a Lockbox Filing Location Updates page, where customers can track when lockbox form filing locations are updated. Updates will also be emailed and announced on social media.

 

M-274 Guidance Updates: Native American Tribal Documents and Victims of Human Trafficking and Criminal Activity

USCIS: USCIS has clarified Form I-9 guidance related to Native American tribal documents.  We also published new guidance regarding T nonimmigrants (victims of human trafficking) and U nonimmigrants (victims of certain other crimes) in the M-274, Handbook for Employers.  USCIS has provided these updates to respond to customer needs.

 

RESOURCES

 

 

EVENTS

 

 

Elizabeth Gibson (Pronouns: she/her/ella)

Managing Attorney for Capacity Building and Mentorship

National Immigrant Justice Center

A HEARTLAND ALLIANCE Program

224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org

www.immigrantjustice.org | Facebook | Twitter

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

Thanks for all you do for due process and fundamental fairness in America, Liz! And congrats again to both you and NIJC/Heartland Alliance on your new position!

My good friend Heidi Altman, Director of Policy at NIJC, should be delighted, as Liz is a “distinguished alum” of both the CALS Asylum Clinic at Georgetown Law (where Heidi was a Fellow) and my Refugee Law & Policy class. Liz also served as an Arlington Intern and a Judicial Law Clerk at the NY Immigration Court. Liz has been a “powerful force for due process, clear, analytical writing, and best practices” wherever she has been! So, I’m sure that will continue at NIJC! Clearly, Liz is someone who eventually belongs on the Federal Bench at some level.

Heidi Altman
Heidi Altman
Director of Policy
National Immigrant Justice Center
PHOTO: fcnl.org

Liz’s mention under “Litigation” of the Supremes’ decision in Wooden v U.S., where Justice Kagan for a unanimous Court interpreted the term “single occasion” broadly in favor of a criminal defendant, raises an interesting immigration issue.

Two decades ago, in Matter of Adetiba, 20 I&N Dec. 506 (BIA 1992), the BIA basically “nullified” the INA’s statutory exemption from deportation for multiple crimes “arising out of a single scheme of criminal misconduct.” Rejecting the 9th Circuit’s contrary ruling, the BIA essentially read the exception out of the statute by effectively limiting it to lesser included offenses.

How narrow was this interpretation? Well, in 21 years on the immigration appellate and trial benches, I can’t recall a single case where the “scheme” did not result in deportation under Adetiba. Taking advantage of the outrageous “doctrine of judicial task avoidance” established by the Supremes in the notorious “Brand X,” the BIA eventually took the “super arrogant” step of nullifying all Circuit interpretations that conflicted with Adetiba! Matter of Islam, 25 I&N Dec. 637 (BIA 2011).

Surprisingly, in my view, in his concurring opinion in Wooden, Justice Gorsuch actually applied the “rule of lenity” — something else the “21st Century BIA” has basically “read out of the law” in their haste to deport! Here’s what Justice Gorsuch said:

Today, the Court does not consult lenity’s rule, but neither does it forbid lower courts from doing so in doubtful cases. That course is the sound course. Under our rule of law, punishments should never be products of judicial conjecture about this factor or that one. They should come only with the assent of the people’s elected representatives and in laws clear enough to supply “fair warning . . . to the world.” McBoyle, 283 U. S., at 27.7

This language is directly relevant to Hon. “Sir Jeffrey” Chase’s recent article on why the term “crime involving moral turpitude” under the INA is unconstitutionally vague! See https://immigrationcourtside.com/2022/03/04/cimt-practical-scholar-sir-jeffrey-chase-⚔%EF%B8%8F🛡-explains-how-a-supreme-constitutional-tank-from-71-years-ago-continues-to-screw/

Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

As the ongoing (“backlog enhancing”) “Pereira fiasco” shows, the BIA has had little problem “blowing off” or distinguishing the Supremes to deport or deny when asked by DHS Enforcement to do so. Today’s BIA “rule” for interpreting supposedly “ambiguous” statutes is actually straightforward, if one-sided: Adopt whatever interpretation DHS Enforcement offers even if that means “taking a pass” on a better interpretation offered by the respondent. So, I’m sure that Garland’s current “Miller Lite” BIA will simply distinguish Wooden as dealing with statutory language different from the INA and ignore its broader implications if asked to do so by “their partners” at DHS Enforcement.

But, whether all Circuits will see it that way, and/or allow themselves to continue to be humiliated by “Brand X,” or whether the issue will reach the Supremes, are different questions. In any event, immigration advocates should pay attention to Wooden, even if the BIA is likely to blow it off.

The current Supremes don’t seem to have much difficulty jettisoning their own precedents when motivated to do so! Why they would continue to feel bound by the bogus “Chevron doctrine” or its “steroid laden progeny Brand X” to follow the interpretations of Executive Branch administrative judges on questions of law is beyond me! Somewhere Chief Justice John Marshall must be turning over in his grave!

🇺🇸 Due Process Forever!

PWS

03-08-22

 

 

 

 

 

Related posts:

  1. 🧑🏽‍⚖️⚖️🗽🇺🇸WHO’S JUDGE IS IT ANYWAY? — The Crisis Of Independence In Our Immigration Courts! — Coming April 7, 2021! — Sponsored By The HNBA! — Don’t Miss It!
  2. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”
  3. PURE BS 💩 — TRUMP’S “BIG LIE” ABOUT MIGRANT APPEARANCES FOR HEARINGS BOGUS AS $3 BILL 🤮👎🏻— Replacing DHS/EOIR With Rational, Qualified, Fact-Based Governance & Real Judiciary Could Bring Appearance Rate Close To 100%!  — Two Items From ImmigrationProf Blog!
  4. 🆘🤮IS 11TH CIR. GROWING WEARY OF GARLAND’S SCOFFLAW BIA? —Two Trips To The Circuit, & The BIA Still Violates Own Regulations, Ignores Precedent, Spouts Gibberish While OIL’s Defense Of This Nonsense & Malfeasance By EOIR Raises Serious Ethical Questions! — THAMOTAR v. U.S. ATT’Y GEN. — Garland’s Dysfunctional & Systematically Unjust Courts Undermine OUR Democracy☠️ — Demand An IMMEDIATE End To The Scofflaw Nonsense🤡 🧹 At OUR Justice Department! 🏴‍☠️

🤯TITLE 42 MADNESS: Even As DC Circuit Bars Returns To Persecution &/Or Torture, Trump Federal Judge In Texas Abuses Children!🤮☠️ — Circuit Findings Of Illegal Returns To “Stomach-Churning” Conditions & No Evidence Supporting Bogus Title 42 Orders Fails To Motivate “Robed Ones” To Reinstate The Rule Of Law! — Meanwhile, In Texas, Rogue Righty Judge Takes Over Immigration, Targets Vulnerable Kids For Rape, Torture, Death!

“Floaters”
Trump Judge Mark T. Pittman has a very explicit vision of the future for brown-skinned children seeking protection from “White Nationalist Nation.”
EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)

Here’s the DC Circuit Decision:

https://www.cadc.uscourts.gov/internet/opinions.nsf/F6289C9DDB487716852587FB00546E14/$file/21-5200-1937710.pdf

Here’s the decision by Trump scofflaw U.S. District Judge Mark T. Pittman:

https://storage.courtlistener.com/recap/gov.uscourts.txnd.347182/gov.uscourts.txnd.347182.100.0_1.pdf

Here’s a link to “Instant Twitter Analysis” by Aaron Reichlin-Melnick, Policy Counsel at the American Immigration Council:

Aaron Reichlin-Melnick
Aaron Reichlin-Melnick
Policy Counsel
American Immigration Council
Photo: Twitter

https://twitter.com/reichlinmelnick/status/1499891832569876481?s=21

ThreadOpen appSee new TweetsConversationAaron Reichlin-Melnick@ReichlinMelnick🚨Absolute madness. The same day the DC Circuit rules that families can’t be expelled under Title 42 to places they will be persecuted, a federal judge in Texas just overruled the CDC and ordered the Biden administration to expel unaccompanied children. https://storage.courtlistener.com/recap/gov.uscourts.txnd.347182/gov.uscourts.txnd.347182.100.0_1.pdf…

. . . .

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

Read the rest of Aaron’s feed at the link.

Although the DC Circuit basically confirmed that the evidence produced by plaintiffs showed illegal returns to death and that there was little, if any, support for the draconian Title 42 exclusion order, the relief granted was unacceptably narrow. The order merely directed the Administration to cease returning individuals to countries where they would be persecuted or tortured.

That order is weak because:

  • It doesn’t specify any particular fair procedure that must be followed by DHS in determining who faces persecution or torture. That appears to leave open the possibility of DHS employing bogus “summary determinations by enforcement agents” rather than using Asylum Officers and having cases referred to Immigration Courts.
  • There are no limits on the Government’s ability to detain individuals and/or return them to other countries.
  • The standard for so-called “withholding of removal” to persecution is “more likely than not” as opposed to the more generous “well-founded fear” or “reasonable possibility” standard for asylum (although individuals should be able to invoke the regulatory “presumption of future persecution” arising out of past persecution).
  • Even if granted, withholding of removal does not provide individuals with “durable legal status” nor does it allow them to access the asylum system, from which they apparently would remain barred under Title 42.

Judge Mark T. Pittman of the Northern District of Texas is a Trump appointee with strong ties to the Federalist Society and a very loose grasp on domestic and international laws and procedures for protecting children.

It’s interesting, if disheartening, to compare the “overt wishy-washiness” of the DC Circuit Judges who were timidly, “sort of” trying to protect at least some minimal legal and human rights with the “in your face,” overtly anti-immigrant, arrogant tone and ridiculous self-assuredness with which activist righty District Judge Mark Pittman advanced his absurdist notion that the White Nationalist agenda of “protecting” America from the “non-threat” of brown-skinned children merited his simultaneous assumption of the roles of President, Secretary of DHS, Attorney General, and for a good measure, Congress.

Obviously, the “judicial restraint,” supposedly a hallmark of modern conservatism, was just a “smoke screen” for the GOP’s activist anti-social, anti-immigrant, racially charged agenda. That’s not news to many of us, although it seems to have gone “over the head” of many in the Biden Administration and many Dems on the Hill.

It shows once again why “Team Garland’s” indolent, often uninformed, and floundering approach to immigrant justice under law is being steamrolled by Trump holdovers and crusading right-wing Federal Judges. And, you wonder why Dems can’t figure out what they stand for and what their “line in the sand” is!

Meanwhile, back at the ranch, Garland and other weak-kneed Biden officials can’t decide how much of the leftover “Miller Lite” anti-asylum, anti-humanitarian, anti-due-process policy they want to retain and defend and how much effort, if any, they want to put into re-establishing human rights and the rule of law.

One observation: After more than one-year in office, the Biden Administration is no closer to having an orderly, functional, due-process-oriented asylum system in place and ready for the border than they were on January 20, 2021! The expert Asylum Officers and qualified Immigration Judges who are necessary to operate such a system are still few and far between, and the program to facilitate legal assistance for those seeking legal protection at the border is all but non-existent.

🇺🇸Due Process Forever!

PWS

03-05-22

Related posts:

  1. AS THOSE CHARGED WITH PROTECTING JUSTICE “TOADY UP” & ENABLE TRUMP REGIME’S “CRIMES AGAINST HUMANITY,” ONE GROUP OF CIVIL SERVANTS HAS THE COURAGE TO STAND UP FOR DUE PROCESS, THE RIGHTS OF ASYLUM SEEKERS, & SIMPLE HUMAN DIGNITY: USCIS ASYLUM OFFICERS! BONUS+: My Latest Monday Essay: “Heroes & Enablers”
  2. WHERE’S THE OUTRAGE? — 9th CIRCUIT JUDGES ASSIST REGIME’S AGENTS IN COMMITTING “CRIMES AGAINST HUMANITY” MERE YARDS FROM THE BORDER! — NDPA Leader Jodi Goodwin, Esquire, Speaks Out: “I’ve been practicing law for 25 years and the last four to five months of practicing law has broken me. I don’t want to fucking do this anymore. [Her voice breaks again] It sucks. How do you explain to people that you know they thought they were coming to a place where there’s freedom and safety and where the laws are just, but that’s not the situation? I’m very mad.”
  3. EOIR TARGETS UNACCOMPANIED KIDS FOR DEPORATION RAILROAD!
  4. COMPLICITY HAS COSTS:  Article III Judges’ Association Apparently Worries That Trump, Barr, GOP Toadies Starting To “Treat Them Like Immigration Judges” — Do They Fear Descent To Status Of Mere Refugees, Immigrants, “Dreamers,” Unaccompanied Children, Or Others Treated As “Less Than Persons” By Trump, 5th Cir., 11th Cir., 9th Cir., & The Supremes’ “J.R. Five?” 

CIMT: PRACTICAL SCHOLAR “SIR JEFFREY” CHASE ⚔️🛡 EXPLAINS HOW A “SUPREME CONSTITUTIONAL TANK” FROM 71 YEARS AGO CONTINUES TO SCREW 🔩 IMMIGRANTS!

Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

https://www.jeffreyschase.com/blog/2022/3/4/the-elusive-concept-of-moral-turpitude

Blog Archive Press and Interviews Calendar Contact

The Elusive Concept of Moral Turpitude

I’ve never understood crimes involving moral turpitude.  I confess this after reading a recent decision of the U.S. Court of Appeals for the Eleventh Circuit that caused me to realize that I am not alone.

In Zarate v. U.S. Att’y Gen.,1 the court was confronted with the question of whether a federal conviction for “falsely representing a social security number” constitutes a crime involving moral turpitude under our immigration laws. Not surprisingly, the Board of Immigration Appeals held that it was.  And yet, one of the most conservative circuit courts in the country chose not to defer to the Board’s judgment.

Reading the decision, it became clear that no one knows what a CIMT is.  As the court pointed out, the term was first included in our immigration laws in the late 19th century.  That fact immediately brought to mind the character of Lady Bracknell from The Importance of Being Earnest (first performed in 1895), who, upon learning that a character had been found as a baby in a satchel at a train station, responded: “To be born, or at any rate bred, in a handbag, whether it has handles or not, seems to me to display a contempt for the ordinary decencies of family life that reminds one of the worst excesses of the French Revolution.  And I presume you know what that unfortunate movement led to?”  If that snippet is any indicator, it seems to have been quite the era for the passing of moral judgment.

The Eleventh Circuit went on to explain that by 1914, a legal dictionary defined the term to mean “an act of baseness, vileness or depravity in the private and social duties which one owes to society, and as applied to offenses includes only such crimes as manifest personal depravity or baseness.”  This standard becomes all the more elusive when one asks the obvious follow-up question “In whose view?”  Lady Bracknell’s?  Vladimir Putin’s?  Or someone occupying an indeterminate middle point between those extremes?

It seems pretty obvious in reading the Eleventh Circuit’s opinion that the term “crime involving moral turpitude” is unconstitutionally vague.  It’s nearly impossible to argue that the term provides sufficient clarity up front of the consequences of committing certain crimes when, as the Eleventh Circuit emphasized, no less an authority than former circuit judge Richard Posner remarked “to the extent that definitions of the term exist, ‘[i]t’s difficult to make sense of . . . [them].’”2

However, there is one huge obstacle preventing courts from simply brushing the term aside: in 1951, the Supreme Court nixed that idea in a case called Jordan v. De George.3   In its decision, the majority of the Court’s justices held that the term “conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.”  Of course, the Court provided no workable definition (if it had, courts today wouldn’t still be exhibiting so much confusion).  But the majority did make one highly consequential pronouncement to support its shaky conclusion, claiming “The phrase ‘crime involving moral turpitude’ has without exception been construed to embrace fraudulent conduct.”

Jordan v. De George also contains a remarkable dissenting opinion written by Justice Robert H. Jackson, and joined by two of his colleagues (Justices Black and Frankfurter).

Interestingly, prior to his appointment to the Supreme Court, Justice Jackson briefly served as Attorney General under Franklin D. Roosevelt.  And readers of Prof. Alison Peck’s excellent book on the history of the U.S. Immigration Court will know that as Attorney General, Jackson tried to dissuade Roosevelt from moving the INS to the Department of Justice due to the harsh consequences it would impose on immigrants, a move that Roosevelt nevertheless undertook in May 1940.4

Sitting on the high court 11 years later, Justice Jackson expressed his frustration with a majority opinion that would punish the petitioner (who had resided in the U.S. for 30 years) “with a life sentence of banishment” because he was a noncitizen.  Justice Jackson pointed out that Congress had been forewarned by one of its own at a House hearing on the Immigration Act of 1917 that the term would cause great confusion, yet provided no additional clarifying language in enacting the statute.5

In the record of the same House hearing, Jackson found reason to believe that Congress meant the term to apply to “only crimes of violence,” quoting language to that effect from a witness, NYC Police Commissioner Arthur H. Woods, whose testimony (according to Jackson) “appears to have been most influential” on the subject.6

After further demonstrating the futility of finding any clear meaning for the term, Jackson stated in his dissent that the majority “seems no more convinced than are we by the Government’s attempts to reduce these nebulous abstractions to a concrete working rule, but to sustain this particular deportation it improvises another which fails to convince us…”7

In Jackson’s view, the elusiveness of the term left whether a conviction was for a CIMT or not to the view of the particular judge deciding the matter.  He added  “How many [noncitizens] have been deported who would not have been had some other judge heard their cases, and vice versa, we may only guess. That is not government by law.”8

Turning to the specific crime before him, which involved the failure to pay federal tax on bootlegged liquor, Jackson noted that those who deplore trafficking in liquor “regard it as much an exhibition of moral turpitude for the Government to share its revenues as for respondents to withhold them.”  On the flip side, Jackson wryly observed that “Those others who enjoy the traffic are not notable for scruples as to whether liquor has a law-abiding pedigree.”9  Just for good measure, the justice added: “I have never discovered that disregard of the Nation’s liquor taxes excluded a citizen from our best society…”10

Given the term’s requirement of passing moral judgment on criminal acts, Jackson emphasized (perhaps most importantly) that “We should not forget that criminality is one thing— a matter of law—and that morality, ethics and religious teachings are another.”11

In spite of the wisdom (and wit) of Jackson’s dissent, here we are over 70 years later, with the 11th Circuit left to deal with De George in reviewing the case of someone who falsely used a Social Security number.  In Zarate, counsel explained at oral argument that the reasons for his client’s action was to work and support his family, and to have medical coverage to pay for his son’s surgery.12  Counsel also argued that the crime lacked the level of immorality required for a CIMT finding, explaining that those using a false number still pay the required amount of Social Security withholding to the government, and yet are not eligible to receive Social Security benefits themselves in return unless they first obtain lawful immigration status.

The Eleventh Circuit issued a thoughtful opinion.  The court understood that it was bound by De George’s view that fraud always involves moral turpitude, a stance repeatedly reinforced by courts since.  But the court noted that “under the categorical approach the crime Mr. Zarate committed does not include fraud as an element or ingredient.”

Surveying BIA decisions on the topic all the way back to 1943, it found that over the years, the Board has concluded that not all false statements or deception constitute fraud.  The court cited a Second Circuit unpublished opinion distinguishing between deception and fraud, as the latter generally requires “an intent to obtain some benefit or cause a detriment.”13  And the court referenced the Seventh Circuit’s observation that the statute in question covers false use of a Social Security number not only to obtain a benefit, but also “for any other purpose.”  That court added “It is not difficult to imagine some purposes for which falsely using a social security number would not be “inherently base, vile, or depraved.”14

In the end, the Eleventh Circuit sent the matter back to the BIA to consider whether under the categorical approach, any and all conduct covered by the statute would involve behavior that is “inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.”  The court’s decision certainly provided the Board a path to conclude otherwise.

I of course have no insight into how the Board will rule on remand.  However, it seems worth adding some observations on the BIA’s problematic approach to CIMT determinations in recent years.

First, the Eleventh Circuit focused on the importance of the categorical approach in reaching the proper outcome.15  However, Kansas attorney Matthew Hoppock obtained through FOIA the PowerPoint of a presentation from the 2018 EOIR Immigration Judges training conference titled “Avoiding the Use or Mitigating the Effect of the Categorical Approach,” which was presented by a (since retired) Board Member, Roger Pauley.16  By virtue of binding Supreme Court case law, judges are required to apply the categorical approach.  So why is the BIA, a supposedly neutral tribunal, training EOIR’s judges to find ways around employing this approach, or to try to reduce its impact?

This concern was further confirmed in an excellent 2019 article by Prof. Jennifer Lee Koh detailing how the BIA has repeatedly fudged its application of the categorical approach in CIMT cases.17  Prof. Koh concluded that the BIA’s approach has involved “The Board’s designation of itself as an arbiter of moral standards in the U.S., its unwritten imposition of a “maximum conduct” test that is at odds with the categorical approach’s “minimum conduct” requirement, and its treatment of criminalization as evidence of moral turpitude” which, not surprisingly, has resulted in BIA precedents expanding the number of offenses judged to be CIMTs.18

Even where the rule is applied correctly, another major problem remains.  As Justice Jackson correctly stated, criminality is one thing, moral judgment quite another.  And while immigration judges are expected to be experts in the law, they are not the standard bearers for what society views as base or vile.

This returns us to a question asked earlier: if not the judge, then who should be arbiter of moral standards?  At the conclusion of its opinion, the Eleventh Circuit cited to a law review article by Prof. Julia Simon-Kerr which criticized how courts have “ ignored community moral sentiments when applying the standard.”19  The article’s author observed that instead of keeping the standard “up to date with the ever-evolving and often-contested morals of a pluralistic society,” courts have to the contrary “preserved, but not transformed, the set of morally framed norms of the early nineteenth century that first shaped its application.”20  In other words, it seems present-day judges too often continue to channel Lady Bracknell, rather than trying to gauge the moral sensibilities of their particular time and place.

If courts were to truly adapt to evolving societal standards, should decisions such as De George remain binding?  Or should they be deemed to have provided guidance based on the morals of their time, subject to current reassessment?

Copyright 2022 Jeffrey S. Chase.  All rights reserved.

Notes:

  1. No. 20-11654 (11th Cir. Feb. 18, 2022) (Published).
  2. Quoting Arias v. Lynch, 834 F.3d 823, 831 (7th Cir. 2016) (Posner, J., concurring).
  3. 341 U.S. 223 (1951).
  4. Alison Peck, The Accidental History of the U.S. Immigration Courts: War, Fear, and the Roots of Dysfunction (University of California Press, 2021) at p. 97.
  5. The warning was provided by Adolph J. Sabath, who served in the House from 1907 to 1952, was an immigrant himself, and is described in his Wikipedia page as “a leading opponent of immigration restrictions and prohibition.”
  6. Jordan v. De George, supra at 235.
  7. Id. at 238.
  8. Id. at 239-40.
  9. Id. at 241.
  10. Id.
  11. Id.
  12. Petitioner was represented by Fairfax, VA attorney Arnedo Silvano Valera.
  13. Ahmed v. Holder, 324 F.App’x 82, 84 (2d Cir. 2009).
  14. Arias v. Lynch, supra at 826.
  15. Judge Gerald Tjoflat even authored a concurring opinion tutoring the BIA to properly conclude that the statute is not divisible, ensuring the application of the categorical approach on remand.
  16. The materials can be found at: https://www.aila.org/infonet/eoir-crimes-bond.
  17. Jennifer Lee Koh, “Crimmigration Beyond the Headlines,” 71 Stan. L. Rev. Online 267, 272 (2019).
  18. Id. at 273.
  19. Julia Simon-Kerr, “Moral Turpitude,” 2012 Utah L. Rev. 1001, 1007-08 (2012).
  20. Id.

MARCH 4, 2022

Reprinted by permission.

****************** 

“Brilliant,” as our friend and colleague Dan Kowalski says!

There is another way in which the Supremes’ prior constitutional abdication continues to pervert the constitutional guarantee of due process today.

As Jeffrey cogently points out NOBODY — Congress, the Article IIIs, the BIA, Immigration Judges, certainly not respondents  — REALLY understands what “moral turpitude” means. Consequently, the only way to properly adjudicate cases involving that issue is through an exhaustive search and parsing of Circuit law, BIA precedents, and often state court decisions. 

The problem: No unrepresented immigrant — particularly one in detention where a disproportionate share of these cases are heard — has any realistic chance of performing such intricate, arcane research into all too often conflicting and confusing sources. 

Therefore, in addition to the problem that originated in DeGeorge when the Supremes’ majority failed to strike down a clearly unconstitutional statute, the failure to provide a right to appointed counsel in such cases — many involving long-time lawful permanent residents of the U.S. — is a gross violation of due process. It basically adds insult to injury!

As long as migrants continue to be intentionally wrongly treated as “lesser persons” or “not persons at all” by the Supremes and other authorities under the Due Process Clause — a process known as “Dred Scottification” — there will be no equal justice under law in America!   

Better, more courageous, practical, and scholarly, Federal Judges — from the Supremes down to the Immigration Courts — won’t solve all of America’s problems. But, it certainly would be an essential start!

For more on the 5th Circuit’s decision in  Zarate, see https://immigrationcourtside.com/2022/02/19/😎👍🏼⚖%EF%B8%8Farlington-practitioner-arnedo-s-velera-beats-eoir-oil-11th-cir-outs-another-sloppy-analysis-by-garlands-bi/

🇺🇸 Due Process Forever!

PWS

03-04-22

Related posts:

  1. REGIME’S NEWEST SCHEME TO SCREW ASYLUM SEEKERS: BOGUS REGS THAT WOULD ILLEGALLY & UNNECESSARILY EXTEND THE GROUNDS OF “MANDATORY DENIAL,” DECREASE ADJUDICATOR DISCRETION, & SHAFT REFUGEE FAMILIES — Regime’s Outlandish “Efficiency Rationale” Fails to Mask Their Cruelty, Racism, Fraud, Waste, & Abuse – Julia Edwards Ainsley (NBC News) & Dean Kevin R. Johnson (ImmigrationProf Blog) Report
  2. 🏴‍☠️☠️🤮👎🏻ERROR SUPPLY: EOIR’s Anti-Asylum Bias, Failure To Apply Precedents, Earns Yet Another Rebuke From 3d Cir.  — Blanco v. AG
  3. CLOGGING 🪠💩🧻 🚽 PROBLEM @ FORMER HOME OF JUSTICE: “Team Garland” Needs Roto-Rooter* On Call To Clean Up The Toxic BS 💩 Spewing From EOIR & Root Out The Ethics Challenged DOJ “Attorneys” Clogging The Federal Courts With Their Frivolous Defenses Of This White Nationalist, Nativist Garbage Coming From Falls Church Kakistocracy In The Waning Days! — Another Lawless EOIR Attack On Due Process, Humanity, Lawyers Blocked By Federal Judge! — Will There Be Accountability For The “Perps” Of These Continuing “Crimes Against Humanity?”
  4. 🏴‍☠️👎🏽🤮 AIMLESS DOCKET RESHUFFLING (“ADR”) ON STEROIDS! — EOIR Dysfunction Shows What Happens When “Captive Court System” Kowtows To Political Handlers Rather Than Serving The Public! — Jason Dzubow, The Asylumist, Reports!

👎🏽IN RACE TO DENY, BIA BLOWS BY OWN REGS IN LATEST 4TH CIR. REJECTION! — Garcia-Hernandez v. Garland (Changed Country Conditions) — Congrats To Ben & Alex!😎🗽⚖️

Kangaroos
“Every day is ‘Kangaroo Field Day’ @ Garland’s DOJ!” When it comes to immigrant justice, “good enough for government work” is the mantra!
https://www.flickr.com/photos/rasputin243/
Creative Commons License

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/ca4-on-changed-country-conditions-garcia-hernandez-v-garland

Dan Kowalski reports from LexisNexis Immigration Community:

CA4 on Changed Country Conditions: Garcia Hernandez v. Garland

Garcia Hernandez v. Garland

“The BIA “affirm[ed] the Immigration Judge’s decision to deny reopening because the respondent has not sufficiently demonstrated that his brother’s murder represents a material change in country conditions that would affect his eligibility for asylum.” A.R. 4. As we noted above, while (b)(4) requires “changed country conditions,” (b)(3)does not. Thus, the BIA’s reference to a “material change in country conditions” and the analysis that followed shows that the BIA applied § 1003.23(b)(4). See A.R. 4. In applying the standard of § 1003.23(b)(4) to a timely filed motion, the BIA acted contrary to law. … The question for the BIA to consider in evaluating Garcia Hernandez’s motion to reopen was whether Garcia Hernandez offered, in the proper from and with the appropriate contents, evidence that was material and not previously available at the initial hearing. 8 C.F.R. § 1003.23(b)(3). Because the BIA did not analyze that question, and instead evaluated the issue under § 1003.23(b)(4), the BIA abused its discretion. … The BIA held that Zambrano did not apply because the changed circumstances there took place before the petitioner filed a time-barred petition even though here, the purported changed circumstances took place after the time-barred petition was filed and adjudicated. But nothing in Zambrano suggests its holding or reasoning was limited in the way the BIA suggests. Thus, Zambrano’s framework in examining changed circumstances should have been applied to Garcia Hernandez’s asylum application. … [W]e grant Garcia Hernandez’s petition for review. We vacate and remand with instructions to the BIA to consider Garcia Hernandez’s motion to reopen under the appropriate standard. The BIA should also address Garcia Hernandez’s asylum application under the framework of Zambrano and conduct any further proceedings consistent with this opinion.”

[Hats off to Benjamin J. Osorio and Alexandra Ribe!]

pastedGraphic.png pastedGraphic_1.png

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

Many congrats to Ben and Alex, who were both “regulars” at the Arlington Immigration Court! Alex is also a former Arlington Intern and a “charter member” of the NDPA!😎 

The 4th Circuit decision was written by Judge Marvin Quattlebaum, a Trump appointee, for a unanimous panel that  included Judge Motz and Judge Thacker. While Judge Q doesn’t always “get it right,” his cogent analysis of the BIA’s lawless behavior in this case is “spot on.”

How does a supposedly “expert” tribunal like the BIA blow the “easy stuff” — like following their own regulations? Clearly it has something to do with an unduly permissive “haste makes waste/rush to deny” anti-immigrant culture at EOIR that Garland has not effectively addressed!

Another obvious problem: Why were Garland’s lawyers at OIL defending this obviously wrong decision?  You don’t have to be an “immigration guru” to read the regulations! 

Sadly, it’s not the first time under Garland that OIL has chosen to waste judicial resources and undermine our justice system by “defending the indefensible.” It’s what happens when leaders promote an “anything goes/no accountability/good enough for government work” atmosphere!

There are deep substantive, structural, personnel, attitude, and “cultural” problems at EOIR and DOJ. That, over his first year in office, Garland has chosen to ignore these glaring malfunctions of justice @ Justice is an ongoing national disgrace!🤮 

It doesn’t have to be this way! But, unfortunately, it is! And, even more disturbingly, no meaningful improvements appear to be on the horizon! That’s a deadly ☠️⚰️ outlook for American justice and for those poor souls caught up in Garland’s unfair, broken, dysfunctional “court” system that bears little resemblance to any commonly understood notion of what a fair, impartial, subject matter expert court should be in America!🤯

🇺🇸 Due Process Forever!

PWS

03-04-22

Related posts:

  1. ⚖️🧑🏽‍⚖️JUDICIAL REVIEW — C.A. 2 — Brace Of Bad BIA Bobbles On Basics Brings “Culture Of Denial” Into Focus — Justice Will Continue To Be Illusive @ EOIR 👎🏽 Until Garland Steps Up & Replaces His Fatally Flawed BIA With Real Judges Who Are Progressive Practical Scholars In Immigration, Due Process, Human Rights, With A Firm Commitment To Bringing Racial & Gender Equity To Now-Disgraced Immigration Courts!🤮
  2. ⚖️🗽🧑🏽‍⚖️”MEDLEY OF INJUSTICE” — CIRCUITS CONTINUE TO LOWER HAMMER 🔨 ON BIA: Anti-Asylum Misogyny; Illegal & Incredibly Stupid “Policies;” “Perplexing” Lack Of Legal Knowledge Highlighted In Latest Batch Of Reversals! — “Attempted rape by a gang of men, in broad daylight on a public street, is especially terrorizing because it powerfully demonstrates the perpetrator’s domination, control over the victim and imperviousness to the law. Requiring evidence of additional harms both minimizes the gravity of the sexual assault and demeans the victim.”
  3. 😎WIN ONE, LOSE ONE☹️:  9TH CIR. ANNIHILATES MATTER OF ARMENDAREZ-MENDEZ (SUA SPONTE REOPENING), WHILE 11TH  CIR. WOODENLY ENDORSES 👎🏻 MATTER OF L-E-A- (NEXUS)!☠️⚰️
  4. 🏴‍☠️BIA CONTINUES TO SPEW FORTH ERRORS IN LIFE OR DEATH ☠️ ASYLUM CASES, SAYS 4TH CIR. — “Three-In-One” — Improperly Disregarding Corroborating Evidence; Incorrect Legal Standard On Past Persecution; Wrong Nexus Finding! — Arita-Deras v. Wilkinson

🏴‍☠️👨‍⚖️OF COURSE, “COURTSIDERS” ALREADY KNOW THIS: Trump/GOP’s “Imperial Radical Right Judiciary” Is An Existential Threat To Our National Security!🤮 — “But [Judge Reed] O’Connor does not sit in a sane circuit; he sits in the 5th Circuit.”

Mark Joseph Stern
Mark Joseph Stern
Reporter, Slate

Slate’s Mark Joseph Stern in Apple News:

https://apple.news/AujRHyBwwShCnyl6hPF–zg

Trump Judges Are Now a Threat to America’s National Security

The 5th Circuit let a lone judge order the deployment of unvaccinated SEALs. High-ranking officers say the decision puts the world at risk.

MARCH 1 2022 6:55 PM

On Monday, the 5th U.S. Circuit Court of Appeals issued a stunning decision transferring control over the Navy’s special operations forces from the commander-in-chief to a single federal judge in Texas. The 5th Circuit’s decision marks an astonishing infringement of President Joe Biden’s constitutional authority over the nation’s armed forces, directing him to follow the instructions of an unelected judge—rather than his own admirals—in deploying SEALs. High-ranking military personnel have testified under oath that this power grab constitutes a direct threat to the Navy’s operational abilities. As Russia invades Ukraine and declares a nuclear alert, Donald Trump’s judges are actively threatening America’s national security.

Like so many lawless cases in the 5th Circuit, this dispute began in the courtroom of U.S. District Judge Reed O’Connor. A notorious George W. Bush nominee, O’Connor is best known for attempting to abolish the Affordable Care Act in 2018, then getting reversed by a 7–2 vote at the Supreme Court last year. So when 35 Navy Special Warfare service members refused to comply with Biden’s COVID-19 vaccine mandate for the armed forces, they brought their case to O’Connor. These service members—mostly SEALs, all represented by the far-right First Liberty Institute—claimed that their religious beliefs barred them from getting the shots. (Some said they heard “divine instruction not to receive the vaccine”; others asserted that the mRNA vaccines altered “the divine creation of their body by unnaturally inducing production of spike proteins.)

O’Connor predictably sided against Biden in January, granting a preliminary injunction of staggering scope on the grounds that the mandate violates the Religious Freedom Restoration Act. He awarded himself sweeping authority over the assignment of the plaintiffs, forcing the Navy to deploy them with operational units. When several plaintiffs were denied transfer to a duty station, they asked O’Connor to sanction the government for allegedly violating his order; he promptly ordered the Justice Department to explain why it should not be punished for failing to deploy these service members. (O’Connor has not yet decided whether to impose sanctions.)

As of today, this lone judge continues to oversee the plaintiffs’ assignments, forcing the Navy to train, equip, and deploy unvaccinated troops—with granular specificity as to their exact stations and duties.

Never before in the history of the United States has one district court judge exercised so much control over the armed forces. The Constitution assigns this authority to Congress and the president. There are certainly legal limits on executive discretion, including due process and constitutional safeguards against invidious discrimination. Right-wing lawyers have typically been loath to acknowledge any restrictions on the president’s war powers. Indeed, the conservative legal movement has endorsed a near-limitless vision of the commander-in-chief: Republican presidents, lawyers, and judges have argued that the Constitution allows the president to deploy troops without congressional approval, indefinitely detain enemy combatants, and exclude entire classes of immigrants from the country. But now it seems they draw the line at a simple vaccine requirement—even though all service members were already required to have at least nine vaccines upon enlistment.

Setting aside this hypocrisy, O’Connor’s order violated a fundamental principle of judicial restraint: Federal courts have long held that specific military assignments are never subject to judicial review. O’Connor appears to be the first judge ever to rule that, in fact, the courts can compel the armed forces to deploy a specific service member to a specific location to perform a specific duty. If his court were in a sane circuit, this unprecedented intrusion on the president’s power would be quashed almost instantly.

But O’Connor does not sit in a sane circuit; he sits in the 5th Circuit. This rogue court is now dominated by Trump judges, and it is breaking every rule to hobble Biden’s presidency. The government’s request for a stay landed in the laps of two infamous Trump judges, Stuart Kyle Duncan and Kurt Engelhardt, along with Edith Jones, an infamously partisan Ronald Reagan nominee.

In an unsigned opinion that bristled with hostility against the COVID-19 vaccine, this panel agreed that the mandate violated religious liberty. Noting that most service members are vaccinated, the panel declared that the Navy lacks the “paramount interests” necessary to overcome anti-vaxxers’ religious objections. It questioned the “efficacy” of the vaccine, noting that “the USS Milwaukee was ‘sidelined’ in December 2021 by a COVID-19 outbreak despite having a fully vaccinated crew.” (Unmentioned was the fact that the crew’s vaccination status prevented even more transmission and serious illness.) The panel then found that the Navy will not be “irreparably harmed” by O’Connor’s order. And it concluded that the “public interest” lies in keeping the plaintiffs unvaccinated.

. . . .

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

Alfred E. Neumann
Don’t expect this lackadaisical attitude from the next far-right GOP Attorney General to “own” the U.S. Immigration Courts — America’s “retail level” judiciary!
PHOTO: Wikipedia Commons

 

 

 

 

Read the full story at the link. 

Don’t imagine that the right-wing activist Supremes’ majority will “reign in” the 5th Circuit. Nope, they are hard at work eradicating civil rights, voting rights, “Dred Scottifying” folks of color, and insuring the eventual environmental collapse of civilization as we have known it! https://www.theguardian.com/commentisfree/2022/feb/28/us-supreme-court-rightwing-climate-crisis?CMP=Share_iOSApp_Other

There isn’t anything that Biden and the Dems can do in the short run to change the scofflaw trajectory and composition of the 5th and the Supremes.

But, there is a powerful, nationwide, precedent-setting  “Trump-oriented retail level ‘judiciary’” — with trial and appellate divisions and control over millions of lives and futures — that they have the power to immediately reform: The U.S. Immigration Courts “housed” within the DOJ’s EOIR!

Too bad for the rule of law and the future of democracy, not to mention the millions of individual human lives and futures at stake, that Garland and his lieutenants aren’t “up to” the job!

Progressives shouldn’t expect the same lack of will, defective focus, and clueless complacency the next time the radical GOP right takes over ownership of the DOJ! When it comes to the interrelated problems of immigration, human rights, civil rights, and immigration judicial reform in the 21st Century, fecklessness and underperformance are exclusive characteristics of Dem Administrations!👎🏽☹️🤯

🇺🇸 `Due Process Forever!

PWS

03-03-22

Related posts:

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  2. WOW, HERE’S A SURPRISE: MANY KIDS FLEEING VIOLENCE IN THE NORTHERN TRIANGLE KNOW NOTHING ABOUT BIDEN BORDER POLICIES — They Are Just Trying To Save Their Lives!
  3. ☠️END MISOGYNY 🤮@ EOIR, NOW! — Gorelick & Miller-Muro Are Right, But Abused Refugee Women’s Lives⚰️ Can’t Wait For Congress! — Judge Garland Must Bring Justice ⚖️ To Dysfunctional EOIR Now! — It’s Not Rocket Science! 🚀
  4. 🏴‍☠️🤮☠️⚰️👎🏻STILL SCOFFLAWS AFTER ALL THESE MONTHS: UNHCR SPEAKS OUT AS BIDEN, HARRIS, GARLAND, MAYORKAS CONTINUE TRUMP-MILLER POLICIES OF ILLEGAL, IMMORAL, UNNECESSARY RETURN OF ASYLUM SEEKERS WITH NO DUE PROCESS UNDER BOGUS TITLE 42 RATIONALE! — Ever Wonder Why Racial & Gender Justice & Equity Are Mirages In Today’s America? — Look No Further Than The “Dred Scottification” Of “The Other” @ DOJ & DHS On Display Every Day!

⚖️PROFESSOR DAVID A. MARTIN: “IMPERIAL 5TH” WRONG ON LAW — I Say They Are Also Biased, Immoral, Cowardly, & Corrupt — But, It’s Time For The Biden Administration To “Read The Tea Leaves” & Work With Advocates To Pump Some Due Process, Humanity, & Best Practices Into “Let ‘Em Die In Mexico!”☠️

“Floaters”
Some GOP judges and super-sleazy state AGs have a very clear vision of the future for refugees of color. Most days, the Biden Administration can’t decide whether they share it or not.  
EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)
David Martin
Professor (Emeritus) David A. Martin
UVA Law
PHOTO: UVA Law

 

 

 

 

 

 

 

https://www.lawfareblog.com/judicial-imperialism-and-remain-mexico-ruling

David writes in Lawfare:

. . . .

The court’s opinion carries the reader along on what purports to be textual analysis and implacable logic. On closer examination, however, it is a startling exercise in judicial imperialism. The opinion seizes on fragments of statutory text, taken out of context, to construct a presumed congressional intent that would be more to the judges’ liking. It ignores contrary indicators in the wording and the historical development of the key provisions. It makes no attempt to reconcile the supposed strict mandate with the historical fact that Congress went 20 years without really noticing—much less objecting to—the absence of implementation. The court also shows an arrogant disregard for the operational realities of border enforcement, including the sensitivity of diplomatic relations with Mexico that sustain cross-border cooperation—on migration issues as well as other policy priorities.

I can bring some special perspective in analyzing the appeals court’s decision.  I have been a scholar and teacher of immigration law for 40 years, and I also was fortunate to hold policy-level positions dealing with immigration in three different departments, under three different Presidents. My years in government gave me close exposure to the operational realities at a level most law professors—and judges—don’t experience. One of those stints consisted of 30 months during the mid-nineties as General Counsel of the Immigration and Naturalization Service (INS) the period when the key reform bills on which the Fifth Circuit relies were introduced, debated, amended, enacted and implemented.

. . . .

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

Read David’s complete article at the above link. As usual, my “practical scholar” friend gives you the real legal analysis that should have been applied by the court. Now, here’s my “less nuanced” take on this atrocious and cowardly piece of extreme White Nationalist judicial misfeasance!

Remarkably, in their 117 pages of snarky, wooden legalese, demeaning of humanity, and willfully misrepresenting reality, these life-tenured righty judges (surprise, two Trumpists, one Bush I) give no serious consideration whatsoever to the well-documented, daily, ongoing abuses of the human and legal rights of those fleeing oppression who are subjected to this heinous White Nationalist program! See, e.g., https://www.humanrightsfirst.org/resource/shameful-record-biden-administration-s-use-trump-policies-endangers-people-seeking-asylum

Just how do asylum applicants exercise their statutory “right” to apply for asylum and other protection under U.S. and international law if they are dead, kidnapped, beaten, extorted, raped, threatened, given inadequate notice of hearing, denied their right to legal assistance, prevented from preparing and documenting their cases, and if they are fortunate enough to finally get a hearing, subjected to an anti-asylum, anti-due-process, non-asylum-expert “faux judiciary” run by a prosecutor with a majority of his “holdover judges” appointed or co-opted by his White Nationalist, asylum-hating predecessors? The Fifth Circuit doesn’t bother to explain. That’s probably because historically their failure to stand up for human rights and racial justice for those in need of protection has been part of the problem.

Also, it’s remarkable how righty judges who couldn’t find any reasons to stop the Trump regime from rewriting asylum law out of existence in unprecedented ways, without legislation, and usually without regard to the APA, suddenly take a much different position when it comes to the Biden Administration’s modest efforts to vindicate human rights and restore some semblance of the rule of law. But, that’s actually less surprising than the Biden Administration’s failure to “see the handwriting on the wall” and have a “Plan B” in operation.

Obviously, these three life-tenured right-wing human rights abusers in robes need to spend a few months “detained” in Mexico or in the “New American Gulag!” But, that’s wishful thinking. Not going to happen! These are ivory tower guys with life tenure, fat salaries, and robes who use their positions to pick on the most vulnerable in the world and deprive them of their legal and human rights based on intentional misconstructions of the law, ignorance of reality, and pandering to a rather overly political racist appeal from GOP AGs who are from “the bottom of humanity’s —  and our legal profession’s — apple barrel!” Doesn’t get much worse than that!

Nevertheless, it should be clear to both advocates and the Biden Administration that “Remain in Mexico” likely is here to stay! Despite the lack of merits to the Fifth Circuit’s decision, and the Supreme’s granting of the Biden Administration’s cert petition, I wouldn’t hold my breath for relief from either the right-wing Supremes or the feckless Dems in Congress.

Given that the program is likely to be judicially imposed, the Administration and advocates can still get together to make it work in compliance with due process. It’s well within their power and not rocket science:

  • Appoint a new BIA with appellate judges who are practical scholars in asylum and will establish coherent, correct legal guidance on domestic violence claims, gender based asylum, gang-based claims, nexus, “failure of state protection,” credibility, corroboration, the operation of the presumption of future persecution, the DHS’s burden of rebutting the presumption, “rise to the level,” right to counsel, fair hearings, and other critical areas where the current “Trump holdover” BIA’s guidance has been lacking, inadequate, and/or defective. They can also insure consistency in asylum adjudications, something that has long escaped EOIR.
  • Get a corps of Immigration Judges with established records and reputations for scholarly expertise, commitment to due-process, practicality, and fairness to asylum seekers to handle these cases.
  • Work with pro bono and advocacy groups and the UNHCR to insure that every person applying under this program has access to competent representation and adequate opportunities to prepare and document cases. Nolan Rappaport and I have recently written about the “largely untapped potential” of a better “qualified representative” program. Professor Michele Pistone at Villanova Law has done some ground-breaking innovative work on training accredited representatives for asylum cases in Immigration Court. But, like most other long overdue reforms, it appears to have gone over Garland’s distracted head! https://immigrationcourtside.com/2022/02/02/⚖%EF%B8%8F🗽there-will-be-no-supreme-intervention-to-stop-mpp-☹%EF%B8%8F-rappaport-pistone-schmidt-tell-how-the-administration-advocates-c/
  • Work with the Government of Mexico and the UNHCR to guarantee the health, security, safety, and welfare of those waiting in camps in Mexico.

Then, we’ll finally find out how many of those who have already passed credible fear actually qualify for a grant of asylum under a fair, competent, timely system run by experts with individuals who are well-represented! I’ll bet it’s the majority, not the measly 2% who have received grants under EOIR’s “Stephen Miller Lite” approach! 

For example, during 13 years on the trial bench, I found that the majority of those referred to Immigration Court after a positive “credible fear” finding (all of the “Remain in Mexico” applicants fall in that category) qualified for asylum or some other type of protection from removal. And, like my friend and long time-colleague Professor Martin, I’ve been working on asylum issues from enforcement, advocacy, academic, and judicial standpoints, in and out of government, since before there was a Refugee Act of 1980!

So, to me, the “2% asylum grant rate” in Immigration Court for these cases,” particularly in light of some revised intentionally overly restrictive “credible fear” criteria imposed by the Trump regime, appears clearly bogus. Why hasn’t Garland looked into the systemic defects in the EOIR system, as applied to “Remain in Mexico,” that have artificially suppressed the grant rate?

Lack of lawyers, undue hinderances on gathering evidence and presenting cases, poor notice, lack of expertise, inadequate training, and anti-asylum performance by IJs and the BIA, and in some cases kidnapping, assault, rape, extortion, and other well-documented physical harm knowingly inflicted on applicants by placing them in clearly dangerous and unacceptable conditions in Mexico are just the start!

There are lots of creative ways of making our current immigration system work better! You just need the knowledge, motivation, expertise, and guts to make it happen! So, far that’s been lacking at all levels of the Biden Administration, but particularly at Garland’s “brain-dead” DOJ. Gosh, these guys make Stephen Miller look like a “creative genius,” albeit an evil and pathological one! 🤯🤮🏴‍☠️ Come on, man! 

As many of us have pointed out, Garland, Mayorkas, Biden, and Harris could and should have had such a system up and operating by now! Outrageous and disgusting as the conduct of the 5th Circuit has been, it’s hardly unpredictable given past performance. Every day that the Administration continues to waste by not making the necessary changes at EOIR, a court system totally within their control, adds to the human misery and injustice!

So, bottom line: White Nationalist judges get life tenure from the GOP. Meanwhile, back at the ranch of the “Gang That Couldn’t Shoot Straight,” Biden and Garland retain Trump’s White Nationalist appointees and enablers at EOIR and eschew the chance to create a diverse, progressive, expert, practical, due-process-oriented, fundamental-fairness-insistent, racial-justice-committed judiciary to decide life-or-death cases that affect and influence the operation of our entire justice system and our democracy in ways that no other court system in America does! The Administration’s alarming “tone deafness” is blowing perhaps the “last clear chance” to create a “model judiciary!”  Sounds like something only a Dem Administration could do. Go figure!

🇺🇸Due Process Forever!

PWS

01-22-22

Related posts:

  1. WHEN ARTICLE III COURTS FAIL: U.S. “Orbits” Refugee Families To Dangerous Chaos In Guatemala Under Clearly Fraudulent “Safe Third Country” Arrangements As Feckless U.S. Courts Fail To Enforce Constitutional Due Process & U.S. Asylum Laws In Face Of Trump Regime’s Contemptuous Scofflaw Conduct!
  2. “SITTING DUCKS” IN “UNSAFE THIRD COUNTRIES” — How The Supremes, The 9th Circuit, The 5th Circuit, & Other Complicit Federal Appellate Courts Aid & Abet The Trump Regime’s Human Rights Violations — Would The “Privileged Robed Ones” Take Due Process & The Rule Of Law More Seriously If It Were THEIR Kids & Grandkids Being Kidnapped & Held for Ransom For The “Crime” Of Seeking Protection Under U.S. Laws?  
  3. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  4. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”

⚖️👩🏽‍⚖️ MORE NDPA CLE: Ellsberg, Harris, Schmidt, Among Headliners @ Inaugural Fourth Circuit Asylum Law Conference @ William & Mary Law on March 11!

Dr. Mary Ellsberg
Dr. Mary Ellsberg
Founding Director
Global Women’s Institute
George Washington University
PHOTO: GWU
Professor Lindsay Muir Harris
Professor Lindsay Muir Harris
UDC Law
Me
Me

https://www.eventbrite.com/e/the-inaugural-fourth-circuit-asylum-law-conference-tickets-203071732017?aff=speaker

The Inaugural Fourth Circuit Asylum Law Conference

MAR

11

The Inaugural Fourth Circuit Asylum Law Conference

by William & Mary Law School Immigration Clinic

 

11

The Inaugural Fourth Circuit Asylum Law Conference

by William & Mary Law School Immigration Clinic

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Join us for a full-day virtual conference discussing Fourth Circuit asylum law and best practices with experts. 6.5 VA & NC CLE credits.

About this event

Join the William & Mary Law School Immigration Clinic, William & Mary Center for Racial and Social Justice, and Immigrant Justice Corps for the Inaugural Fourth Circuit Asylum Law Conference.

Conference Schedule:

Panels and Sessions include:

  • One Year In: The Biden Administration and Asylum Policy
  • Developments in Fourth Circuit Case Law
  • Increasing Access to Pro Bono Counsel in Underserved Areas: Virginia as a Case Study
  • Working Across Disciplines: Best Practices for Attorneys and Mental Health Professionals in Asylum Seeker Evaluations
  • Country Conditions: From Page to Practice

CLE Credit and DOJ Accredited Representative Certifications

This event has been approved for 6.5 credit hours of CLE credit from Virginia and North Carolina. Attorneys seeking CLE credit must purchase tickets indicating that CLE credit is provided (indicated by “CLE” listed by the ticket type).

Attorneys from other jurisdictions who are not seeking CLE credit from Virginia or North Carolina are welcome to attend.

DOJ Accredited Representative certifications will be provided to those who register as DOJ Accredited Representatives seeking certification.

Zoom Webinar Information

Zoom information for the event will be sent to the email address used to register. For security reasons, we do not post the Zoom link information. All Zoom registration information will be provided in a separate email closer to the date of the event.

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Fri, March 11, 2022

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William & Mary Law School Immigration Clinic

Organizer of The Inaugural Fourth Circuit Asylum Law Conference

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Our panel will be “Country Conditions: From Page to Practice.”

🇺🇸Due Process Forever!

PWS

02-25-22

Related posts:

  1. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  2. WHEN ARTICLE III COURTS FAIL: U.S. “Orbits” Refugee Families To Dangerous Chaos In Guatemala Under Clearly Fraudulent “Safe Third Country” Arrangements As Feckless U.S. Courts Fail To Enforce Constitutional Due Process & U.S. Asylum Laws In Face Of Trump Regime’s Contemptuous Scofflaw Conduct!
  3. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”
  4. JOURNAL ON MIGRATION & HUMAN SOCIETY (“JMHS”) PUBLISHES MY TRIBUTE TO JUAN OSUNA (1963-2017): “An Overview and Critique of US Immigration and Asylum Policies in the Trump Era”

😎👍🏼⚖️ARLINGTON PRACTITIONER ARNEDO S. VELERA BEATS EOIR, OIL — 11th Cir. “Outs” Another Sloppy Analysis By Garland’s BIA In CIMT Case! — Hernandez Zarate v. Garland

 

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/ca11-cimt-remand-hernandez-zarate-v-garland

Dan Kowalski reports for LexisNexis:

CA11 CIMT Remand: Hernandez Zarate v. Garland

Hernandez Zarate v. Garland

“The question presented in this appeal—one which has led to a circuit split—is whether a conviction for falsely representing a social security number, see 42 U.S.C. § 408(a)(7)(B), is a CIMT. … The BIA explained that § 408(a)(7)(B) requires intent to deceive, and as a result Mr. Zarate’s conviction was for a CIMT. Noting that the circuits were divided on the issue, it quoted our decision in Walker v. U.S. Att’y Gen., 783 F.3d 1226, 1229 (11th Cir. 2015), for the proposition that, “[g]enerally, a crime involving dishonesty or false statement is considered to be one involving moral turpitude.” The BIA did not, however, address whether a violation of § 407(a)(7)(B) is inherently base, vile, or depraved. And that, as we will later explain, is a significant omission. … Our holding today does not foreclose the possibility that a conviction for a violation of § 408(a)(7)(B) may be a CIMT. But if the BIA is going to hold that it is, it will need to do what it has so far failed to do in Mr. Zarate’s case—it will have to apply its two-pronged moral turpitude standard in toto and decide whether the statute, under the categorical approach, involves conduct that is “reprehensible,” i.e., conduct that is “inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.” Silva-Trevino, 26 I. & N. Dec. at 833–34 (internal quotation marks omitted). See also Simon-Kerr, Moral Turpitude, 2012 Utah L. Rev. at 1007–08 (criticizing courts for “ignor[ing] community moral sentiments when applying the [moral turpitude] standard”). We remand to the BIA for that purpose.”

[Hats way off to Arnedo Silvano Valera!]

pastedGraphic.png

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

Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

My colleague Hon. “Sir Jeffrey” Chase of the Round Table 🛡⚔️ offers the following cogent “instant analysis:”

Besides from what this says about the BIA being too lazy and hellbent on affirming removal orders for even the 11th Circuit’s liking, this is really interesting in its addressing the issue of applying “community moral sentiments”.What community are we talking about, and at what period of time?

There’s also a concurring opinion that does a very deep dive into the process for determining whether a statute is divisible.Could you even imagine the BIA engaging in the necessary analysis?

“Deep analysis” isn’t exactly in the “BIA playbook” under Garland. No, Garland’s “good enough for government work culture” at the DOJ tolerates the “whatever it takes to get to ‘no’” standard that was instilled by Sessions and Barr and, remarkably, still permeates much of the BIA’s work that is being rejected by the Article IIIs.

I note that the “deep dive” concurring opinion referenced by “Sir Jeffrey” was written by Senior Circuit Judge Gerald B. Tjoflat, a 92-year-old Gerald Ford appointee whose intellectual engagement and analytical work product puts the Garland BIA to shame! 

🇺🇸Due Process Forever!

PWS

02-19-22

Related posts:

  1. 🏴‍☠️👎🏽🤮 AIMLESS DOCKET RESHUFFLING (“ADR”) ON STEROIDS! — EOIR Dysfunction Shows What Happens When “Captive Court System” Kowtows To Political Handlers Rather Than Serving The Public! — Jason Dzubow, The Asylumist, Reports!
  2. ⚖️🗽🧑🏽‍⚖️”MEDLEY OF INJUSTICE” — CIRCUITS CONTINUE TO LOWER HAMMER 🔨 ON BIA: Anti-Asylum Misogyny; Illegal & Incredibly Stupid “Policies;” “Perplexing” Lack Of Legal Knowledge Highlighted In Latest Batch Of Reversals! — “Attempted rape by a gang of men, in broad daylight on a public street, is especially terrorizing because it powerfully demonstrates the perpetrator’s domination, control over the victim and imperviousness to the law. Requiring evidence of additional harms both minimizes the gravity of the sexual assault and demeans the victim.”
  3. 🌬🤯MORE BLOWBACK FOR GARLAND’S “COURTS” — Problems Emerge On Credibility (1st Cir., 10th Cir.), Agfel (9th Cir.)
  4. CIMT: PRACTICAL SCHOLAR “SIR JEFFREY” CHASE ⚔️🛡 EXPLAINS HOW A “SUPREME CONSTITUTIONAL TANK” FROM 71 YEARS AGO CONTINUES TO SCREW 🔩 IMMIGRANTS!

🚂🛤GARLAND’S DEPORTATION RAILROAD KEEPS ROLLIN’ — WITH A LITTLE HELP FROM TWO GOP JUDGES IN 4TH — Mejia-Velasquez v. Garland — After 6 Years, 3 Flawed Tribunals, A Woman Claiming Politically-Motivated Gang Abuse In Honduras Sent Packing Back To Danger & Corruption Without A Merits Hearing!

 

Train
Train
Dennis Adams, Federal Highway Administration; levels adjustment applied by Hohum
Public domain. — Garland’s Deportation Railway retains most of his predecessors’ engineers, conductors, and crew.  It’s often slow, unreliable, erratic, and subject to arbitrary unannounced schedule changes. It continues to bypass “Due Processville” and “Fundamental Fairness City.”

 

https://www.ca4.uscourts.gov/opinions/201192.P.pdf

Mejia-Velasquez v. Garland, 4th Cir., 02-16-22, published

PANEL: NIEMEYER, MOTZ, and RICHARDSON, Circuit Judges.

OPINION BY: Judge Niemeyer

DISSENT: Judge Motz

KEY QUOTE FROM DISSENT:

Under the current immigration statutes, DHS has good reason to require applicants for relief from removal to submit fingerprints and other biometrics. But before DHS does so, it must first comply with specified notice obligations. Where, as here, DHS fails to do so, I would not fault the applicant. As the Supreme Court explained in Niz-Chavez, “[i]f men must turn square corners when they deal with the government, it cannot be too much to expect the government to turn square corners when it deals with them.” 141 S. Ct. at 1486.

I respectfully dissent.

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

The IJ and the BIA relied on a wrong BIA precedent. The 4th Circuit majority judges recognized its incorrectness, but took OIL’s invitation to fashion another rationale for denying this asylum applicant a hearing on the merits of her life or death claim. While the respondent was represented by counsel, the disputed “warnings” and dialogue relating to the missing biometrics were not translated into Spanish, the only language she understood.

While this case was pending, USCIS finally delivered the long and inexplicably delayed biometrics appointment letter to the respondent. But, that made no difference to a group of judges anxious to railroad her back to Honduras (one of the most dangerous and thoroughly corrupt countries in the hemisphere) without a meaningful chance to be heard.

With a dose of macabre ☠️ irony, the 4th Circuit’s tone-deaf decision came just as the US was requesting extradition of former Honduran President, and Obama and Trump Administrations’ buddy, Juan Orlando Hernández on drug trafficking charges! https://lawprofessors.typepad.com/immigration/2022/02/violence-in-honduras-tied-to-ex-president-now-arrested.html

Of all the Federal Judges who looked at this case over the years, only Judge Motz was interested in providing the respondent a due process hearing on her life-determining claim. The rest evidently were more fixated on creating reasons for NOT hearing her case. With the same amount of judicial and litigation effort, likely less, the respondent probably could have received a due process hearing on the merits of her claim. Additionally, there would have been consequences for the BIA’s defective “good enough for government work” precedent.

Of course, like Garland, none of the exalted judges involved in this disgraceful dereliction of duty have actually represented an asylum applicant in Immigration Court and had to deal with the confusing, convoluted, backlogged, and often notoriously screwed up DHS/EOIR biometrics process. See, e.g., “USCIS Biometrics Appointment Backlog,” https://www.stilt.com/blog/2021/02/biometrics-appointment-backlog/.

I suspect that folks contesting a parking ticket get more consideration in our system than this asylum applicant got from Garland’s unfair and dysfunctional Immigration Courts and the OIL lawyers who defend these mis-handled cases. And, in the world of “refugee roulette,” where human lives are treated like lottery tickets, a different Circuit panel of judges might have joined Judge Motz in getting it right.

The problem starts with EOIR — tribunals that receive deference without earning it through expertise, quality scholarship, and prioritizing due process, fundamental fairness, and best practices. It’s aggravated and multiplied by Garland — an Attorney General indifferent to injustice and the trail of broken lives and dashed hopes left in its wake. And, it’s aided, abetted, and enabled by judges like the panel majority here, who can’t be troubled with the hard work of understanding the consequences of their dilatory approach and demanding fair, competent, and reasonable expert judging from EOIR.

As several of my colleagues have said about the broken, dysfunctional, unfair Immigration Court system, the haphazard review by some Circuit Courts, and the disturbing systemic lack of judicial courage when it comes to fairly applying the Due Process Clause of our Constitution to migrants of color: “The cruelty is the point.”

It’s also worthy of note that the failure of all the Federal Judges, save Judge  Motz, to make any meaningful inquiry into the respondent’s clearly expressed fear of return to Honduras appears to violate mandatory requirements for withholding of removal under the INA and international conventions. Perhaps that’s not surprising as Federal Judges have allowed Garland, Mayorkas, and their predecessors to use the transparent pretext of “Title 42” to systemically violate the legal and human rights of refugees at our borders — every day!

It’s also worth putting into context the Biden Administration’s continuing pontification about the human rights of Ughyurs, Afghans, women, and other persecuted minorities, as well as their professed commitment to racial justice in the U.S., which has not been matched by actions. Indeed, the Biden Administration’s actual approach to human rights looks much more like “Miller Lite Time” than it does a courageous, competent, and fair reinstitution of the rule of law!

According to recent reports, many of the Ughyurs and Afghans who were fortunate enough to reach the U.S. and avoid arbitrary “turn backs” at our borders, are now mired in the endless, mindless Mayorkas/Garland bureaucracy that masquerades as an “asylum system” — subject to long waits, missing work authorizations, and sometimes arbitrary and secretive “denials” blasted by human rights advocates. In a functional system these would be the “low hanging fruit” that could rapidly be removed from limbo and given the ability to fully function in our society. But, not in the “Amateur Night at the Bijou” atmosphere fostered by Mayorkas and Garland.

The “strict enforcement” of regulatory requirements on the respondent in this case stands in remarkable contrast with the lackadaisical “good enough for government work” approach of Garland’s BIA and DOJ to the Government’s intentional non-compliance with the statutory requirements for a Notice to Appear (“NTA”).  See, e.g., https://immigrationcourtside.com/2022/02/01/%f0%9f%97%bd%e2%9a%96%ef%b8%8fhon-jeffrey-chase-garland-bias-double-standard-strict-compliance-for-respondents-good-enough-for-govern/ Talk about “double standards” at Garland’s DOJ!

🇺🇸 Due Process Forever!

PWS

02-16-22

Related posts:

  1. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  2. ⚖️🗽🧑🏽‍⚖️”MEDLEY OF INJUSTICE” — CIRCUITS CONTINUE TO LOWER HAMMER 🔨 ON BIA: Anti-Asylum Misogyny; Illegal & Incredibly Stupid “Policies;” “Perplexing” Lack Of Legal Knowledge Highlighted In Latest Batch Of Reversals! — “Attempted rape by a gang of men, in broad daylight on a public street, is especially terrorizing because it powerfully demonstrates the perpetrator’s domination, control over the victim and imperviousness to the law. Requiring evidence of additional harms both minimizes the gravity of the sexual assault and demeans the victim.”
  3. ⚖️🧑🏽‍⚖️JUDICIAL REVIEW — C.A. 2 — Brace Of Bad BIA Bobbles On Basics Brings “Culture Of Denial” Into Focus — Justice Will Continue To Be Illusive @ EOIR 👎🏽 Until Garland Steps Up & Replaces His Fatally Flawed BIA With Real Judges Who Are Progressive Practical Scholars In Immigration, Due Process, Human Rights, With A Firm Commitment To Bringing Racial & Gender Equity To Now-Disgraced Immigration Courts!🤮
  4. FELIPE DE LA HOZ @ THE NATION: “The Shadow Court Cementing Trump’s Immigration Policy” — “It’s not a court anymore, it’s an enforcement mechanism,” said Paul Wickham Schmidt, who was himself chair of the BIA between 1995 and 2001 and now writes a popular immigration blog called Immigration Courtside. “They’re taking predetermined policy and just disguising it as judicial opinions, when the results have all been predetermined and it has nothing to do or little to do with the merits of the cases.”

🗽ATTN NDPA: LAW YOU CAN USE — IN ACTION AND LIVING COLOR! 🎥 — ABA VIDEOS PRESENTS:  “Master Calendar — Episode 1 Of Fighting For Truth, Justice, & The American Way In America’s Most Arcane & Dysfunctional ‘Courts’” — Featuring Blockbuster Due Process Superstars 🤩 Of Stage, Screen, & Internet: Stephanie Baez, Denise Gilman, & Michelle Mendez!

 

🌟 🌟 🌟 🌟 🌟

Stephanie Baez
Stephanie Baez ESQ
Pro Bono Counsel
ABA Commission on Immigration
PHOTO: ABA

🌟 🌟 🌟 🌟 🌟

Denise L.; Gilman
Professor Denise L. Gilman
Clinical Professor, Director Immigration Clinic
UT Austin Law
PHOTO: UTA

🌟 🌟 🌟 🌟 🌟

Michelle N. Mendez
Michelle N. Mendez, ESQ
Director of Legal Resources and Training
National Immigration Project, National Lawyers Guild
PHOTO: NIPNLG

https://www.youtube.com/watch?v=

“Join the ABA Commission on Immigration for a 3-part series on the Mechanics of Immigration Court. This series covers the nuts and bolts of how to practice in immigration court. Part I takes an in depth look at the Master Calendar Hearing and Filing Applications for Relief with Immigration Court. Topics to be covered include reviewing the Notice to Appear, getting your client’s court file, how to prepare for the initial Master Calendar Hearing and what to expect, best practices for appearing via WebEx and Open Voice, and a brief overview of common forms of relief and prosecutorial discretion. This webinar is designed for pro bono attorneys and immigration practitioners who are new to immigration law, or for anyone who wants to brush up on their practical skills.”

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

PLAYING IN HOME, OFFICE, AND CLASSROOM THEATERS NOW!

RATED G — Suitable & Highly Recommended for All Audiences

Win cases, save lives, achieve racial justice, fulfill the wrongfully withheld promises of the U.S. Constitution, force change into a deadly and dysfunctional system that has been weaponized to “Dred Scottify” the other and degrade humanity!

Make an “above the fray” AG finally pay attention to and address the disgraceful, due-process-denying, wasteful mess in “his wholly-owned parody of a court system.” This is what being a lawyer in 21st Century America is all about! 

The video is 1 hour and 15 minutes!

“If you can win a case in this system, everything else in law, indeed in life, will be a walk in the park!”  — Paul Wickham Schmidt, ImmigrationCourtside

Don’t miss the sequel!

🇺🇸Due Process Forever!

PWS

02-16-22

 

Related posts:

  1. THE TRUTH IS OUT, THANKS TO MICHELLE MENDEZ @ CLINIC: Practice Pointers on Matter of Castillo-Perez & “Takeaways” From FOIA Trove On In Absentias!
  2. 🇺🇸😎⚖️🗽👍🏼LAW YOU CAN USE:  Michelle Mendez and CLINIC Publish A New Practice Advisory on Opening & Closing Statements in Immigration Court
  3. ⚖️🗽🧑🏽‍⚖️CAMILLE J.  MACKLER @ JUST SECURITY “GETS IT!” — How Come Judge Garland & The Biden Administration Don’t? — “If we want to re-build a better, stronger immigration system, we need to start with immigration courts.” — Get Involved! Get Angry! Say No To Institutionalized Racism, Misogyny, & Dehumanization (“Dred Scottification”) @ EOIR! Force Judge Garland To Pay Attention! Demand Change, Now!
  4. ⚖️👩🏽‍⚖️ MORE NDPA CLE: Ellsberg, Harris, Schmidt, Among Headliners @ Inaugural Fourth Circuit Asylum Law Conference @ William & Mary Law on March 11!

⚖️NDPA: LAW YOU CAN USE: Professor Geoffrey A. Hoffman Says Success Could Be In Your Background! 😎🗽

Republished from ImmigrationProf Blog:

https://urldefense.com/v3/__https://lawprofessors.typepad.com/immigration/2022/02/guest-post-foreground-and-background-issues-by-geoffrey-a-hoffman.html__;!!LkSTlj0I!GtiDnj-eYO_mcLN0fG2g1OUH6UIraTViIBHbVFCS5G6EmSA6TpFuullv_q9ueiqcr6i08C9xlU9jG7unFbaIZmAGOmUw$

Thursday, February 10, 2022

Guest Post: Foreground and Background Issues by Geoffrey A. Hoffman

By Immigration Prof

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Foreground and Background Issues by Geoffrey A. Hoffman*

I want to say a bit about “foreground” versus “background” issues in immigration cases. I have noticed puzzlement at these concepts and recently when lecturing noticed that people do not appreciate the difference. In addition, it is not a common way of thinking about the law. It has become crucial for me, however, in my experience to clearly and effectively distinguish between these two concepts. It is also a rich source of ideas, strategies and techniques in a variety of cases, so let me try to explain it here. The other motivation for laying out the theory is that (in the future) I can point to this piece of writing as a “backgrounder” for my lectures … Sorry for the pun!

First, what are some foreground issues? You can start by readily imagining the elements of  any claim – take for example an asylum case.  In such a case, the applicant (or a respondent, in court) has the burden to prove most (but not all) of the issues. Those may include past persecution, future persecution, nexus (“on account of” one of the five statutory grounds), etc. The applicant may or may not have to prove that he or she cannot safely internally relocate or that there has been a fundamental change in circumstances in the country of origin. Nevertheless those are all “foreground” issues. Other pretty straightforward issues that have to be adjudicated and will be evaluated by the IJ include (1) credibility; (2) sufficiency of the evidence or corroboration; and (3) related to credibility, the consistency or coherence of the applicant’s story. Of course, background and foreground do not apply just to asylum, but can be imagined in the context of any case, and in any field of the law.

At this point, I would implore students to shout-out any “background” issues they can think of. In a pedestrian sense, all issues that come up in the course of a hearing or series of proceedings can be “brought to light” – by the judge or either party – and therefore get converted from “background” to “foreground.” But, many times these issues are not brought up, and often go unaddressed. If they are not brought up by counsel, for example, they may be waived and therefore a rich source of argument on appeal may be lost.

Some examples of background issues, and by now you probably see where I am going, include, interpreter (verbal) or translation (written) errors, transcription issues, competency or more saliently “incompetency” issues, jurisdiction, firm resettlement, other bars to relief, U.S. citizenship as a defense to deportation, other defenses, the existence of qualified relatives, unexplored avenues for relief, etc., etc. Basically, any issue that is lurking  behind the scenes in any immigration court litigation can be seized upon and (in appropriate cases) be used on appeal when the BIA is reviewing what happened below before the trial judge.

A good example from an actual case may be helpful as an illustration to the reader at this point.

In my first pro bono BIA appeal years ago I utilized a series of “background” issues that resulted successfully (albeit after several months or years) in:  (1) a remand to the IJ; (2) termination of the case on remand; and (3) ultimately,  an (affirmative) grant of asylum for the mother and young child before USCIS. The case involved a young Haitian mother and her 7 or 8 year-old son.  I got the case on appeal and read the transcript immediately.  What struck me on reviewing the record was that at the very beginning of the proceedings, at the Master Calendar Hearing, an attorney or the judge mentioned very briefly in passing that the young boy was deaf. He had a disability that resulted in his being fitted with a device, a cochlear implant. The comment went unexplored or unremarked upon throughout the pendency of proceedings. Ultimately, the judge denied the political asylum claim of the mother. The fact that the child would be persecuted on account of his disability was not argued, mentioned, or even touched upon in the IJ’s decision denying relief.

As appellate counsel, I wondered if this “background” issue might be addressed on appeal. By researching how to make this a “foreground” issue on appeal, and hopefully a basis for a good remand, I learned about a very helpful case, Matter of Lozada (still good law) and was able to follow the rules and strict procedures in that case to prove that the prior attorney was ineffective by failing to bring out a key argument that could have been dispositive of the entire case.

The task was not an easy one. It should not be overlooked that Lozada and the case’s not insignificant requirements are burdensome. Moreover, the motion to remand had to be very thoroughly documented with expert affidavits, NGO reports, witness statements, and not to mention medical documents.

Once remanded, I noticed a further issue: in the file there was a one-page document with an old agency stamp which happened to be a copy of the I-589 asylum application that my client had never received an interview on and which had not been adjudicated.  In bringing this further “background” issue to the Court’s attention, the burden shifted to my opposing counsel to provide the Department’s position on when, if ever, the agency had provided the required affirmative interview as required by Due Process, the INA, and the regulations.

Because the government could not prove that the interview had ever occurred, the motion to terminate was granted and I was permitted to file affirmatively (again) with USCIS, arguing this time the dire circumstances that would befall my clients in Haiti in consideration of the disability of the son and other details about the case involving the political situation in their home country.

Given these considerations, it is important for attorneys on appeal to take the record not as a given, as static, but something dynamic that can be researched and creatively explored at every level.  A part of the case that was not appreciated previously can and often does exist.  It may be a change of law that occurred while the case was winding its way through the lengthy and frustrating backlog (which stands of this writing at 1.6 million cases). It could be misdirection or mistaken advice by notarios or prior counsel. It can take the form of errors, made perhaps innocently and innocuously by interpreters that, if uncorrected, doom the respondent’s chances.

A further point: the retrospective stance of an appeal makes seeing background issues perhaps easier than seeing them in real time. What is really hard sometimes is seeing such issues as they happen in the context of the trial court setting. A key example of such issues that often get overlooked is burden of proof. We often see attorneys conceding deportability or inadmissibility, often overlooking key arguments or defenses. These are not really background but should be foreground issues, especially where the burden is on the government in most situations to prove by clear and convincing evidence the ground of deportability, now removability, has been proven. Other key arguments, for example, surrounding admissibility of statements of ICE officers, or others such as in the I-213 record of inadmissibility / deportability are also largely overlooked.

Finally, I want to mention in closing further fall-out from Niz-Chavez v. Garland and Pereira v. Sessions, and the latest developments surrounding the defective NTA issue. The defective NTA problem is probably one of the most underappreciated “background” issues because it implicates “jurisdiction,” or as the Board has left open, and it still remains to be decided, at the very least a “claims-processing” rule violation.

More specifically, for everyone who has an in absentia order, the rule in Rodriguez v. Garland, 15 F.4th 351, 354–56 (5th Cir. 2021), in the Fifth Circuit, and more recently, Singh v. Garland, (No. 20-70050), in the Ninth Circuit, has given us important opportunities to raise this as a crucial background issue.  Even though these cases are at odds now with Matter of Laparra, 28 I&N Dec. 425 (BIA 2022), there are two circuits finding that in absentia orders must be reopened where the NTA was defective under most circumstances.

Given these developments there is no question that the defective NTA issue is not going away anytime soon.   And if, as I think the Board will soon find, a defective NTA is indeed a claims-processing rule violation, at the very least, it will be important to raise such a “background” issue to reopen proceedings, obtain a remand, or otherwise preserve the procedural issue to ensure relief is available for many respondents.

 

*Clinical Professor, University of Houston Law Center; Individual Capacity and institution for identification only

KJ

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

Thanks, Geoffrey, for giving us such a timely and much-needed dose of your “accessible practical scholarship!” And, as always, thanks to Dean Kevin Johnson and ImmigrationProf Blog for getting this out to the public so quickly.

I’d pay particular attention to Geoffrey’s “red alert’ ❗️about defective NTA issues and the BIA’s flailing effort to again shun the Supremes and best practices in Matter of Laparra — a decision that has been “thoroughly roasted” by “Sir Jeffrey” Chase and me, among others.  See, e.g.,https://immigrationcourtside.com/2022/02/01/%f0%9f%97%bd%e2%9a%96%ef%b8%8fhon-jeffrey-chase-garland-bias-double-standard-strict-compliance-for-respondents-good-enough-for-govern/

Laparra is already in trouble in two Circuits at opposite ends of the spectrum — the 9th and the 5th. As Geoffrey points out, the potential of “counter-Laparra” litigation to force some due process back into both the trial and appellate levels of Garland’s dysfunctional “courts” is almost unlimited! 

But, litigation challenging Laparra and raising defective NTAs as a “claims processing rule” must be timely raised at the first opportunity. It’s a great example of “background issues” that talented NDPA litigators must “bring to the foreground” and use to save lives! It also shows the importance of great practical scholarship and meticulous preparation. Good lawyering wins!

Thanks again Geoffrey!

🇺🇸Due Process Forever!

Related posts:

  1. ⚖️👍🏼😎LAW YOU CAN USE: Professor Geoffrey Hoffman Tells Us How To Use Niz-Chavez v. Garland To Fight DHS/EOIR’s “Fake Date NTA” Travesty!
  2. 👎🏽“GOOD ENOUGH FOR GOVERNMENT WORK” IS GOOD ENOUGH FOR GARLAND! ☹️ — FUNDAMENTALLY UNFAIR HEARINGS, BOGUS IN ABSENTIA REMOVAL ORDERS, UNREASONED PSG DENIALS, FAILURE TO FOLLOW CIRCUIT & OWN PRECEDENTS — The Life-Threatening ☠️☠️⚰️⚰️🪦 Errors Continue To Flow From EOIR’s “Culture Of Denial” — What’s Missing? — Accountability, Judicial Excellence, Due Process, Fundamental Fairness!
  3. 🌬🤯MORE BLOWBACK FOR GARLAND’S “COURTS” — Problems Emerge On Credibility (1st Cir., 10th Cir.), Agfel (9th Cir.)
  4. ☹️HE BEAT THE GOVERNMENT TWICE IN COURT — But, After Three Years In Jail Without Being Charged With Any Crime, Omar Ameen Still Can’t Get A Bond From Garland’s Courts —  How Can A System Where The Prosecutor Makes The Rules & Picks The Judges, Mostly From The Ranks Of Former Prosecutors, Provide The “Fair & Impartial Judging” Required By Due Process?

😎NYLAG WINS SETTLEMENT REQUIRING BIA TO MAKE UNPUBLISHED DECISIONS PUBLIC! — NYLAG v. Board of Immigration Appeals

NDPA Superstar Liz Gibson (“The Gibson Report”) sends this item:

From: Beth Goldman <BGoldman@nylag.org>

Sent: Thursday, February 10, 2022 11:03 AM

To: NYLAG All <nylagall@nylag.org>

Subject: Victory for Immigrants and Their Advocates!

 

All,

I am proud to share that NYLAG and co-counsel Public Citizen reached a historic settlement in NYLAG v. Board of Immigration Appeals (18 Civ. 9495 (S.D.N.Y.)). Under the settlement entered last night, the Board of Immigration Appeals (BIA) will for the first time make the vast majority of its decisions available to the public by publishing them online, helping to level the playing field for immigrants.

NYLAG brought this case to challenge the BIA’s longstanding failure to make its judicial decisions publicly available, which meant that neither immigrants nor their attorneys could access these crucial documents to help them defend their cases and seek relief. This gave an unfair advantage to the government’s lawyers, who could access these same decisions to advocate for removal of NYLAG’s clients and immigrants across the country, in proceedings already stacked against them. To challenge this practice, NYLAG made a request under the Freedom of Information Act (FOIA) that BIA post all of its final orders in immigration cases in its electronic reading room– which FOIA has required since 1996 for all federal agencies.

Last February, NYLAG and co-counsel Public Citizen won a critical victory in the case, when the U.S. Court of Appeals for the Second Circuit ruled that people can sue to enforce the FOIA requirement that federal agencies post certain documents online so that they are accessible to the public.

Last night, the United States District Court for the Southern District of New York approved the settlement agreement between NYLAG and the BIA, under which the BIA has agreed to place nearly all its opinions into an online reading room. This will ensure that immigrants and immigration advocates across the country (including NYLAG’s own Immigrant Protection Unit’s staff and clients) will have access to these opinions within six months of when they are issued. The Board also must post prior decisions dating back to 2016.

This victory is a testament to NYLAG’s ability to create large-scale change. Kudos to the NYLAG attorneys involved in this case – Danielle Tarantolo, Jessica Ranucci, and Jane Stevens (before her retirement) of SLU; and Jodi Ziesemer and Melissa Chua of IPU –and our dedicated co-counsel at Public Citizen. This victory could not have been achieved without their partnership, diligence, and hard work.

Beth

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

Congrats to all concerned! As noted in Beth Goldman’s last paragraph, while Garland has been reluctant to make progressive changes and to bring much needed management and substantive reforms to EOIR, advocacy groups have been able to force some systemic improvements through litigation. 

It seems like a wise AG would “clean out the deadwood” @ EOIR and bring in dynamic experts who can solve problems and make the necessary changes to restore due process to his ridiculously broken system. But, that apparently would be an AG “other than Garland.”

🇺🇸Due Process Forever!

PWS

02-10-22

Related posts:

  1. THE GIBSON REPORT — 03-01-21 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group — FEATURING: Under The EOIR Big Top 🎪 Robed TV Carnival Barkers Hand Out Death Sentences ☠️ With Ignorance, Indolence, Indifference, & Insult To Injury!
  2. 🧑🏽‍⚖️⚖️🗽🇺🇸WHO’S JUDGE IS IT ANYWAY? — The Crisis Of Independence In Our Immigration Courts! — Coming April 7, 2021! — Sponsored By The HNBA! — Don’t Miss It!
  3. THE GIBSON REPORT — 08-30-21 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group
  4. ⚖️THE GIBSON REPORT — 02-07-22 — Compiled By Elizabeth Gibson Esquire, NY Legal Assistance Group — BONUS: “Ethics On Vacation @ DHS & DOJ”

🔥BURNED AGAIN! — Garland’s BIA Torched By 2d Cir. For Multiple Errors In Legal Standards Relating To Asylum,Withholding, & CAT! — Ojo v. Garland

 

https://www.ca2.uscourts.gov/decisions/isysquery/cc2301b5-aa22-4767-9199-a8061927397c/1/doc/19-3237_complete_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/cc2301b5-aa22-4767-9199-a8061927397c/1/hilite/

Ojo v. Garland, 2d C ir., 02-09-22, published 

PANEL: CHIN, BIANCO, AND MENASHI, Circuit Judges.

OPINION: JOSEPH F. BIANCO, Circuit Judge

DISSENTING OPINION: MENASHI, Circuit Judge

SUMMARY BY COURT:

Olukayode David Ojo, a native of Nigeria, seeks review of a September 27, 2019 decision of the Board of Immigration Appeals affirming an April 15, 2019 decision of an immigration judge, which denied asylum, withholding of removal, and relief under the Convention Against Torture. See In re Olukayode David Ojo, No. A088-444-553 (B.I.A. Sept. 27, 2019), aff’g No. A088-444-553 (Immigr. Ct. N.Y.C. Apr. 15, 2019).

We grant Ojo’s petition for review and vacate the agency’s denial of Ojo’s claims for asylum, withholding of removal, and CAT protection because those determinations were permeated with several legal and procedural errors. First, insofar as Ojo’s request for asylum was rejected as untimely, the agency applied the wrong legal standard to his claim of changed circumstances and the agency’s alternative discretionary determination failed to indicate the requisite examination of the totality of the circumstances. Second, with respect to Ojo’s application for withholding of removal, the agency erred when it incorrectly categorized his federal conviction for wire fraud and identity theft as “crimes against persons,” and concluded that they fell within the ambit of “particularly serious crimes” without evaluating the elements of the offenses as required under the agency’s own precedent. Finally, with respect to his CAT claim, the agency erred in concluding that Ojo lacked a reasonable fear of future persecution or torture in Nigeria due to his status as a criminal deportee without even addressing the declaration of his expert supporting his claim.

Accordingly, the petition for review is GRANTED, the BIA’s decision is VACATED, and the case is REMANDED to the BIA for further proceedings consistent with this opinion.

JUDGE MENASHI dissents in a separate opinion.

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

The majority opinion is 51 pages; Judge Menashi’s dissent another 35 pages. That’s 86 pages of Article III time trying to straighten out the BIA’s sloppy work and mis-application of basic legal concepts. 

It would be in everyone’s best interests if Garland jettisoned his “Miller Lite holdover BIA” and replaced them with real appellate judges — experts in human rights and asylum law with reputations for careful practical, due-process-focused scholarship — Judges like his sole BIA appointment to date, Judge Andrea Saenz.

It’s painfully obvious that the out of control problems in immigration law will NOT be solved with the BIA currently in place. They lack the expertise, temperament, and background to get “the retail level of our justice system” back on track. 

As this case, among others, illustrates, Garland’s failure to institute long overdue personnel and quality control reforms at EOIR is continuing to “bleed over” into the Article IIIs, occupying an increasing amount of their time. It also creates astounding inconsistencies among Circuits and among panels in the same Circuit. Garland’s “personal court system” is dysfunctional on multiple levels and is sowing more dysfunction throughout our justice system!

Garland and his lieutenants, including “above the fray” Solicitor General Liz Prelogar, also should take a look at the OIL “defense” in this case. It’s basically this: 

“The respondent is a bad guy. So, it doesn’t matter if the BIA applies the wrong legal standards because they have discretion to deport any bad guy for any reason or even for the wrong reason. Even if the BIA didn’t do its job, you, Court of Appeals, should do it for them because, as we said, this is one bad dude who needs deporting. Did we mention that he’s a bad guy?”

The combined abysmal performance of EOIR and OIL, enhanced by the lack of leadership and engagement from Garland and his senior managers, is eroding the foundations of the U.S. legal system at an alarmingly rapid rate!

The majority was written by Judge Joseph F. Bianco, a recent Trump appointee; the dissenter, Judge Steven Menashi, is also a Trump appointee whose rise from right-wing “campus troll” to the Federal Bench was controversial. See, e.g., https://www.vox.com/policy-and-politics/2019/9/12/20858813/steven-mensashi-ethnonationalism-trump-nominee.

I will say that at least he thought about, analyzed, and explained his views in much greater detail than the so-called “subject matter experts” at the BIA.

The answer is to replace the ongoing “EOIR Clown Show” 🤡 with real expert judges, at both the trial and appellate levels, who will consistently get these right in the first (or second) instance. That would “move” dockets (without violating rights), reduce the burdens on the Article IIIs, and promote (rather than actively undermine) consistency. It would also produce a consistent body of judicial scholarship on due process, racial justice, and best judicial practices in immigration, human rights, and fundamental Constitutional law that would help guide and solve systemic problems in the overall Federal legal system.

Why not bring in the talent and creative problem solving to turn a disgraceful, deadly, resource-wasting failure into a model judiciary? It’s a question that Garland has yet to answer!

🇺🇸Due Process Forever!

PWS

02-10-22

Related posts:

  1. 🆘🤮IS 11TH CIR. GROWING WEARY OF GARLAND’S SCOFFLAW BIA? —Two Trips To The Circuit, & The BIA Still Violates Own Regulations, Ignores Precedent, Spouts Gibberish While OIL’s Defense Of This Nonsense & Malfeasance By EOIR Raises Serious Ethical Questions! — THAMOTAR v. U.S. ATT’Y GEN. — Garland’s Dysfunctional & Systematically Unjust Courts Undermine OUR Democracy☠️ — Demand An IMMEDIATE End To The Scofflaw Nonsense🤡 🧹 At OUR Justice Department! 🏴‍☠️
  2. ⚖️🧑🏽‍⚖️JUDICIAL REVIEW — C.A. 2 — Brace Of Bad BIA Bobbles On Basics Brings “Culture Of Denial” Into Focus — Justice Will Continue To Be Illusive @ EOIR 👎🏽 Until Garland Steps Up & Replaces His Fatally Flawed BIA With Real Judges Who Are Progressive Practical Scholars In Immigration, Due Process, Human Rights, With A Firm Commitment To Bringing Racial & Gender Equity To Now-Disgraced Immigration Courts!🤮
  3. ⚖️🗽🧑🏽‍⚖️”MEDLEY OF INJUSTICE” — CIRCUITS CONTINUE TO LOWER HAMMER 🔨 ON BIA: Anti-Asylum Misogyny; Illegal & Incredibly Stupid “Policies;” “Perplexing” Lack Of Legal Knowledge Highlighted In Latest Batch Of Reversals! — “Attempted rape by a gang of men, in broad daylight on a public street, is especially terrorizing because it powerfully demonstrates the perpetrator’s domination, control over the victim and imperviousness to the law. Requiring evidence of additional harms both minimizes the gravity of the sexual assault and demeans the victim.”
  4. 😎WIN ONE, LOSE ONE☹️:  9TH CIR. ANNIHILATES MATTER OF ARMENDAREZ-MENDEZ (SUA SPONTE REOPENING), WHILE 11TH  CIR. WOODENLY ENDORSES 👎🏻 MATTER OF L-E-A- (NEXUS)!☠️⚰️

⚖️THE GIBSON REPORT — 02-07-22 — Compiled By Elizabeth Gibson Esquire, NY Legal Assistance Group — BONUS: “Ethics On Vacation @ DHS & DOJ”

 

Elizabeth Gibson
Elizabeth Gibson
Attorney, NY Legal Assistance Group
Publisher of “The Gibson Report”

PRACTICE ALERTS

 

Mandatory E-Filing with EOIR, Starting FRIDAY

 

EOIR Updates

EOIR: EOIR reminds interested stakeholders that hearings on Feb. 8, 2022, and beyond will proceed as scheduled, subject to local operational and case-specific decisions. Please monitor EOIR’s website for information about the agency’s operations nationwide.

EOIR NYC: In an effort to provide more clarity on operations at each of the NYC immigration courts from Feb. 8 onward, [EOIR] is providing additional guidance. See attached.

 

EADs Valid Longer

USCIS: In the interest of reducing the burden on both the agency and the public, USCIS has revised its guidelines to state that initial and renewal EADs generally may be issued with a maximum validity period of up to 2 years for asylees and refugees, noncitizens with withholding of deportation or removal, and VAWA self-petitioners; or up to the end of the authorized deferred action or parole period to applicants in these filing categories

 

NEWS

 

After review, U.S. maintains border policy of expelling migrants, citing Omicron

CBS: After a recent internal review, the Biden administration decided to maintain a pandemic-era order put in place under former President Donald Trump that authorizes the rapid deportation of migrants from the U.S.-Mexico border, the Centers for Disease Control and Prevention (CDC) told CBS News Thursday.

 

Bill Aims to Remove US Immigration Courts from Executive Branch

VOA: U.S. House Representative Zoe Lofgren, a Democrat from California who leads the House Subcommittee on Immigration and Citizenship, unveiled the legislation Thursday.

 

148 Groups Ask Biden To Fund $50M For Migrant Atty Access

Law360: A group of 148 organizations supporting immigrant and civil rights sent a letter to President Joe Biden and congressional leaders urging them to allocate at least $50 million to provide “immediate and dramatic” expansion of legal representation for people facing immigration proceedings.

 

83,000 Afghans Made It To The US. Now They Need Lawyers

Law360: The arrival in the United States of 83,000 displaced Afghans following the military’s withdrawal from Afghanistan over the summer has put stress on the already overburdened immigration system and created an access to justice crisis that Congress needs to address, attorneys say. See also Additional $1.2 billion in resettlement assistance authorized earlier this week by President Biden.

 

Internal documents show heated back-and-forth between DeSantis and Biden admin over care of migrant children

CNN: An ongoing feud over President Joe Biden’s immigration policies is escalating in Florida where Gov. Ron DeSantis is threatening to keep long-standing shelters from caring for migrant children, culminating in a heated back and forth unfolding in internal correspondence obtained by CNN.

 

Feds Pressed To Free Immigrant Detainees As Ill. Ban Kicks In

Law360: Immigrant rights groups urged the Biden administration on Tuesday to release people held in immigration detention in Illinois amid fears that U.S. Immigration and Customs Enforcement will send the detainees out of state as Illinois shuts down its last two detention centers.

 

Mexican authorities evict Tijuana migrant camp near border

WaPo: About a hundred members of the police, National Guard and army on Sunday evicted 381 migrants, mainly Central Americans and Mexicans, from a makeshift camp they had been staying in for almost a year in Tijuana at the U.S. border crossing.

 

Robot Dogs Take Another Step Towards Deployment at the Border

DHS: “The southern border can be an inhospitable place for man and beast, and that is exactly why a machine may excel there,” said S&T program manager, Brenda Long. “This S&T-led initiative focuses on Automated Ground Surveillance Vehicles, or what we call ‘AGSVs.’ Essentially, the AGSV program is all about…robot dogs.”

 

LITIGATION/CASELAW/RULES/MEMOS

 

BIA Reinstates Removal Proceedings After Finding §2C:35-10(a)(1) of New Jersey Statutes Annotated Is Divisible with Respect to Specific Substance Possessed

AILA: BIA found §2C:35-10(a)(1) of New Jersey Statutes Annotated is divisible and the record of conviction can be reviewed under the modified categorical approach to determine whether the specific substance possessed is a controlled substance under federal law. (Matter of Laguerre, 1/20/22)

 

BIA Dismisses Appeal After Finding §714.1 of Iowa Code Is Divisible with Regard to Type of Theft

AILA: BIA found Iowa Code §714.1 is divisible with respect to whether a violation of it involved theft by taking without consent or theft by fraud or deceit, permitting use of modified categorical approach to determine whether violation involved aggravated felony theft. (Matter of Koat, 1/27/22)

 

BIA Rules Respondent’s Conviction for Conspiracy to Commit Wire Fraud Constitutes a Particularly Serious Crime

AILA: BIA found the amount of forfeiture ordered in a criminal proceeding may be considered in determining whether a crime of fraud or deceit resulted in a loss to victim(s) exceeding $10,000, if the amount ordered is sufficiently traceable to the conduct of conviction. (Matter of F-R-A-, 2/3/22)

 

Unpub. BIA Termination Victory

LexisNexis: Helen Harnett writes: “I thought you might be interested in this BIA decision. The IJ terminated proceedings because the NTA did not contain a time or date.”

 

CA1 Holds That Irregularities in “Record of Sworn Statement” Lacked Sufficient Indicia of Reliability for Use in Assessing Credibility

AILA: In light of unexplained irregularities in the record, the court vacated the BIA’s denials of withholding of removal and relief under the Convention Against Torture (CAT) and remanded to the agency for further factfinding. (Bonilla v. Garland, 1/12/22)

 

CA1 Says Conviction in Rhode Island for Driving a Motor Vehicle Without Consent Is Not Categorically a Theft Offense

AILA: The court held that the petitioner’s conviction for driving a motor vehicle without consent of the owner or lessee under Rhode Island General Laws (RIGL) §31-9-1 did not constitute a categorical aggravated felony theft offense. (Da Graca v. Garland, 1/18/22)

 

CA1 Holds That BIA Properly Applied Heightened Matter of Jean Standard to Petitioner’s Waiver Request

AILA: The court held that the BIA adequately considered the question of extraordinary circumstances called for in Matter of Jean, and found it lacked jurisdiction to consider the relative weight the BIA gave the evidence in denying the inadmissibility waiver. (Peulic v. Garland, 1/11/22)

 

CA4 Finds That “Prosecution Witnesses” Is Not a PSG

AILA: The court agreed with the BIA that the Honduran petitioner’s proposed particular social group (PSG) of “prosecution witnesses” lacked particularity, and found no error in the BIA’s decision upholding the IJ’s adverse credibility finding as to petitioner. (Herrera-Martinez v. Garland, 1/5/22)

 

CA4 Finds BIA Abused Its Discretion in Denying Continuance to Petitioner with Pending U Visa Application

AILA: Where the petitioner had a pending U visa application, the court held that the BIA abused its discretion in denying his motion for a continuance, finding that the BIA had departed from precedential opinions in holding that he had failed to show good cause. (Garcia Cabrera v. Garland, 1/6/22)

 

4th Circ. Revives Guatemalan Asylum Case Over Family Ties

Law360: The Fourth Circuit breathed new life into a Guatemalan migrant’s asylum case, faulting an immigration judge for failing to tie death threats that the man received to his son, who was targeted for gang recruitment.

 

CA5 Finds Proposed PSG of Honduran Women Unable to Leave Domestic Relationship Was Not Cognizable

AILA: The court concluded that the BIA did not abuse its discretion in holding that the petitioner’s proposed particular social group (PSG)— “Honduran women who are unable to leave their domestic relationships”—was not legally cognizable. (Jaco v. Garland, 10/27/21, amended 1/26/22)

 

CA5 Finds Petitioner Removable Under INA §237(a)(2)(A)(ii) for Having Been Convicted of Two CIMTs After Admission

AILA: The court concluded that res judicata did not bar the removal proceedings, deadly conduct was categorically a crime involving moral turpitude (CIMT), and petitioner was admitted to the United States when he adjusted to lawful permanent resident (LPR) status. (Diaz Esparza v. Garland, 1/17/22)

 

CA5 Says Government Rebutted Presumption of Future Persecution Based on Guatemalan Petitioner’s Sexual Orientation and Identity

AILA: The court held that because petitioner, who was homosexual and identified as transgender, had said that she could probably safely relocate in Guatemala, the BIA did not err in finding that the government had rebutted the presumption of future persecution. (Santos-Zacaria v. Garland, 1/10/22)

 

CA5 Upholds Withholding of Removal Denial to Petitioner with Felony Assault Conviction

AILA: The court affirmed the BIA’s determination that petitioner’s felony assault conviction was a particularly serious crime rendering him ineligible for withholding of removal, because he had failed to show how the alleged errors compelled reversal. (Aviles-Tavera v. Garland, 1/4/22)

 

CA5 Withdraws Prior Opinion and Issues Substitute Opinion in Parada-Orellana v. Garland

AILA: The court denied the petitioner’s petition for panel rehearing, withdrew its prior panel opinion of 8/6/21, and held that the BIA did not abuse its discretion by applying an incorrect legal standard when it denied petitioner’s motion to reopen. (Parada-Orellana v. Garland, 1/3/22)

 

CA6 Finds Petitioner Forfeited Ineffective Assistance Claim Because He Failed to Comply with Third Lozada Requirement

AILA: The court held that BIA did not abuse its discretion in denying the motion to reopen based on ineffective assistance, finding that Matter of Lozada requires more than a statement that the noncitizen is “not interested” in filing a bar complaint.(Guzman-Torralva v. Garland, 1/13/22)

 

CA7 Upholds Asylum Denial to Christian Chinese Petitioner Who Acknowledged Discrepancies in Her Asylum Application

AILA: The court held that the record supported the IJ’s and BIA’s conclusion that the Chinese Christian petitioner did not meet her burden of establishing her eligibility for asylum given the discrepancies in her testimony and the lack of corroborative evidence. (Dai v. Garland, 1/24/22)

 

CA7 Says BIA Legally Erred by Considering Arguments That the Government First Raised on Appeal

AILA: The court held that the BIA legally erred by considering arguments that the government did not present to the IJ, and that the BIA engaged in impermissible factfinding on the conditions in Kosovo, rendering its decision to deny remand an abuse of discretion. (Osmani v. Garland, 1/24/22)

 

CA8 Upholds BIA’s Decision Denying Motion to Reopen Even Though Petitioner Made a Prima Facie Case for Relief

AILA: The court held that the BIA did not abuse its discretion in denying petitioner’s successive motion to reopen, and that the BIA did not deprive the petitioner of a constitutionally protected liberty interest in declining to reopen proceedings sua sponte. (Urrutia Robles v. Garland, 1/26/22)

 

CA9 Holds That BIA Sufficiently Complied with Notice Requirements Applicable to a Minor in Immigration Proceedings

AILA: The court rejected the petitioner’s contention that, because she was actually a minor when she was released on her own recognizance without notice of her hearing to a reasonable adult, the notice provided her was inadequate. (Jimenez-Sandoval v. Garland, 1/13/22)

 

CA9: Panel Nixes Deportation For Missing Court, Cites Faulty Notice

Law360:An Indian man can’t be deported for missing an immigration court date after he received a notice to appear that didn’t specify a date and time, even though that information came in a later notice, the Ninth Circuit has ruled.

 

CA9 Finds Petitioner’s Conviction for Arson in California Was Not an Aggravated Felony

AILA: The court held that arson in violation of California Penal Code (CPC) §451 was not a categorical match to its federal counterpart, and thus that the petitioner’s conviction under CPC §451(b) was not an aggravated felony that rendered him removable. (Togonon v. Garland, 1/10/22)

 

CA9 Declines to Rehear Velasquez-Gaspar v. Garland En Banc

AILA: The court issued an order denying the rehearing en banc of  Velasquez-Gaspar v. Garland, in which the court upheld the BIA’s conclusion that the Guatemalan government could have protected the petitioner had she reported her abuse. (Velasquez-Gaspar v. Garland, 1/25/22)

 

CA11 Finds Petitioner Failed to Prove That Florida’s Cocaine Statute Covers More Substances Than the Federal Statute

AILA: The court held that the petitioner, who had been convicted of cocaine possession under Florida law, had failed to show that Florida’s definition of cocaine covers more than its federal counterpart, and thus upheld the BIA’s denial of cancellation of removal. (Chamu v. Att’y Gen., 1/26/22)

 

Feds Fight Detention Probe In Migrant Counsel Access Suit

Law360: The U.S. Department of Homeland Security urged a D.C. federal court to halt immigration advocates’ efforts to inspect a large detention center accused of denying detainees access to counsel, calling a probe “particularly intrusive” amid debate over the lawsuit’s viability.

 

EOIR to Close Fishkill Immigration Court

AILA: EOIR will close the Fishkill Immigration Court due to the closure of the Downstate Correctional Facility in which the court is located. Holding hearings at the location will cease at close of business on February 17, 2022. Pending cases at time of closure will transfer to Ulster Immigration Court.

 

Form Update: Form I-864, Affidavit of Support Under Section 213A of the INA, Form I-864W, Request for Exemption for Intending Immigrant’s Affidavit of Support, Form I-864EZ, Affidavit of Support Under Section 213A of the Act

USCIS: Starting April 7, 2022, we will only accept the 12/08/21 edition.

 

Form Update: Form I-824, Application for Action on an Approved Application or Petition

USCIS: Starting April 7, 2022, we will only accept the 12/02/21 edition.

 

RESOURCES

·         AILA: Practice Alert: Escalating Problems with Virtual Hearings and Contacting the Court

·         AILA: Can They Do It? The Myth of the Tech-Challenged Client

·         AILA: Sleep Debt: A Contributing Factor for Ethics Mishaps

·         AILA: Practice Alert: Local OPLA Guidance on Prosecutorial Discretion

·         AILA: Practice Alert: In-Person Asylum Interviews Return But COVID-19 Precautions Continue

·         AILA: Practice Resource: Fraudulent Document Standard and Matter of O–M–O–

·         AILA: Taking the Measure of Lozada

·         AILA Meeting with the USCIS Refugee, Asylum & International Operations Directorate 

·         ASAP: February Updates

·         Asylos

o    The Bahamas: State protection for families of gang members who face persecution by gangs (AME2021-15)

o    Iraq: Situation of divorced, single mothers in Iraqi Kurdistan (MEN2021-19)

o    Hungary: Treatment of Roma Women and State Protection (CIS2021-09)

o    Russia: Domestic Violence (CIS2021-08)

·         CLINIC: Department of Homeland Security (DHS), I-9 and REAL ID Policies

·         CLINIC: COVID & U.S. Citizenship and Immigration Services (USCIS)

·         CLINIC: COVID & Department of State

·         CLINIC: COVID & ICE

·         CLINIC: COVID & EOIR

·         MPI: Four Years of Profound Change: Immigration Policy during the Trump Presidency

·         USCIS Statement on the International Day of Zero Tolerance for Female Genital Mutilation

·         USCIS: Overview of myUSCIS for Applicants

 

EVENTS

 

 

ImmProf

 

Monday, February 7, 2022

·         U.S. Hispanic population continued its geographic spread in the 2010s

Sunday, February 6, 2022

·         Poetry Break: Immigration by Ali Alizadeh

·         Refugee Olympic Team at 2022 Winter Olympics in Beijing?

·         After review, Biden Administration maintains Title 42 border policy of expelling migrants

Saturday, February 5, 2022

·         WaPo Debunks JD Vance Talking Points on Biden & Unlawful Migration

·         NPR Politics Podcast: Democratic Activists Say Biden Has Failed To Deliver On Immigration Promises

Friday, February 4, 2022

·         From the Bookshelves: Joan is Okay by Weike Wang

·         The Toll of MPP (Remain in Mexico Policy) on Children

·         “The Disillusionment of a Young Biden Official” by Jonathan Blitzer for The New Yorker

·         Bill Introduced in Congress to Make Immigration Courts More Independent

·         Shalini Bhargava Ray on “Shadow Sanctions for Immigration Violations” in Lawfare

Thursday, February 3, 2022

·         Border Patrol to Use Robot Dogs

·         DACA Recipients Continue to Contribute

·         Immigration Article of the Day: Restructuring Public Defense After Padilla by Ingrid Eagly, Tali Gires, Rebecca Kutlow & Eliana Navarro Gracian

Wednesday, February 2, 2022

·         New TPS Advocated for Migrants from Honduras, Guatemala, El Salvador, and Nicaragua

·         San Francisco apologizes for history of racism, discrimination against Chinese Americans

·         A Mexican American is the first Latina president of Harvard Law Review

·         From the Bookshelves: Go Back to Where You Came From: And Other Helpful Recommendations on How to Become American by Wajahat Ali

·         MPI Releases Report on Immigration Policy Changes During Trump Administration

·         Covid infections surge in immigration detention facilities

Tuesday, February 1, 2022

·         In Today’s WTF Deportation News

·         DeSantis Plays Politics with the Lives of Migrants

·         Congress, not Biden, should be held accountable for immigration reform

Monday, January 31, 2022

·         WES: Canada’s Enduring Appeal to Prospective Immigrants in the Face of COVID-19

·         Race, Sovereignty, and Immigrant Justice Conference

·         AB 1259 Extends Post-Conviction Relief to Trial Convictions in California That Lack Immigration Advisal

·         From the Bookshelves: No One is Illegal: Fighting Racism and State Violence on the U.S.-Mexico Border by Justin Akers  Chacón and Mike Davis

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Liz’s “Item 4” under “Litigation,” upholding termination for a statutorily defective NTA, inspired the following additional thoughts.

ETHICS ON VACATION @ DHS & DOJ: Apparently a Frivolous DHS Appeal Asking BIA To Publish Intentional Misconstruction of 7th Circuit Law is SOP For Mayorkas, Garland, & Underlings! 

By Paul Wickham Schmidt

Courtside Exclusive

Feb. 9, 2022

So, DHS argues on appeal that the BIA should violate, and intentionally and dishonestly, “misconstrue” 7th Circuit precedent. And, for a good measure, publish the result to insure that no IJ in the 7th Circuit gets it right in the future. 

BIA Chairman Wetmore, a former OILer who, whatever his shortcomings might be, does recognize the importance of not “overtly dissing” the Article IIIs, correctly says “No.” Perhaps, as suggested by my colleague Hon. “Sir Jeffrey” Chase, Wetmore had in mind that the 7th Circuit previously threatened to hold the Board in contempt for willfully ignoring its orders. See   https://immigrationcourtside.com/2020/01/25/contempt-for-courts-7th-cir-blasts-bia-for-misconduct-we-have-never-before-encountered-defiance-of-a-remand-order-and-we-hope-never-to-see-it-again-members-of-the-board-must-count-themse/

Why aren’t there ethical problems with this outrageous, unprofessional DHS appellate argument? Why isn’t this a precedent, as it provides helpful guidance and can be used to prevent future frivolous litigation by DHS? Why is there no accountability for this frivolous appeal, request to publish, and the blatant effort by DHS counsel to “pull the wool over the eyes” of the IJ and the BIA?

The pattern of taking a frivolous appeal, making unethical arguments, and asking the BIA to publish as a precedent shows the arrogant view of ICE that they “have EOIR in their pocket” (certainly consistent with the Sessions/Barr rhetoric) and that there will be neither accountability nor consequences for frivolous and unethical conduct by DHS attorneys! By not publishing the result as a precedent, the BIA leaves it open for other IJs and single Appellate Judge BIA “panels” to get it wrong in the future. It also sends a signal that taking a whack at making misleading arguments for illegal and unethical results has no downside at Mayorkas’s DHS or Garland’s BIA.

Wonder why there are gross inconsistencies and endless backlogs at EOIR?  A totally undisciplined, unprofessional system where “anything goes” and “almost anything” will be defended in pursuit of removal orders certainly has something to do with it! It’s simply been building, under Administrations of both parties, since 2001!

The one-sided BIA precedent process — publishing mainly cases favorable to DHS — is no accident either. Pro-DHS rulings can be used by OIL (correctly or incorrectly) to argue for so-called “Chevron deference” or its evil cousin “Brand X” disenfranchisement of Article III Judges.

By contrast, precedents favorable to individuals merely promote due process, fundamental fairness, best practices, consistency, and efficiency. They might also be used to curb misbehavior by IJs and DHS counsel. Nothing very important in the eyes of EOIR’s DOJ political overlords.

GOP AGs, from Ashcroft through Sessions and Barr, have made it clear that precedents favorable to DHS Enforcement are far less likely to be “career threatening” or “career limiting” for their “captive judges.” On the other hand, precedents  standing for due process, vindicating migrants’ rights, or curbing “outlier” behavior by IJs and DHS attorneys can be risky. And, perhaps surprisingly, Dem AGs in the 21st Century also have been “A-OK” with that, as Garland demonstrates on a daily basis.

Where are Ur Mendoza Jaddou (yes, she’s at USCIS, not ICE,  but she’s “upper management,” knows the issues, and has access to Mayorkas) and Kerry Doyle at DHS? Whatever happened to Lisa Monaco, Vanita Gupta, and Lucas Guttentag at DOJ? 

These are the types of “real time” problems that leadership can and should be solving by setting a “no nonsense due process first” tone and bringing in and empowering expert Appellate Judges (“real judges”) and DHS Chief Counsel who will put due process, fundamental fairness, and ethics foremost! But, apparently it’s “below the radar screen” of Biden Administration leadership at DHS and DOJ.

The case for an independent Article I Court has never been stronger! Garland’s lack of leadership and furthering of injustice adds to Chairperson Lofgren’s case for fundamental change and removal of EOIR from DOJ, every day!

 Due Process Forever!

PWS

02-09-22

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