⚖️ WINOGRAD WHOMPS 🥊 GARLAND’S EOIR AGAIN, THIS TIME ON “PARTICULARLY SERIOUS CRIME” (“PSC”)! — Annor v. Garland — Following Precedents, Analyzing Correct Statute Proves Elusive For Garland’s Dysfunctional Courts! 🏴‍☠️ — “Because the BIA analyzed the wrong statute 🤯 at the first step of its analysis, and omitted the most important factor 🤯🤯 at the second, we vacate the BIA’s decision and remand to the BIA for further proceedings consistent with this opinion.”

CAIR Coalition
IMAGE: CAIR Coalitiin

From the CAIR Coalition on Linkedin:

Today, we’re celebrating the Fourth Circuit’s decision in Annor v. Garland. The court ruled that immigration judges must follow proper analytical steps in determining whether noncitizens have been convicted of a particularly serious crime (PSC).

 

This is an important decision because anyone convicted of a PSC is ineligible for asylum and withholding of removal, so PSC determinations have life-or-death consequences for immigrants facing persecution if they are deported to their home countries.

 

“Today, the Fourth Circuit spoke clearly: the immigration court system must treat PSC determinations with the care they deserve,” stated Immigration Impact Lab Senior Attorney Peter Alfredson, who worked on the amicus brief alongside Lab Deputy Program Director Samantha Hsieh.

 

CAIR Coalition submitted an amicus brief, also signed by RAICES, in support of Mr. Annor, who was represented by Ben Winograd of the Immigrant & Refugee Appellate Center, LLC.

Here’s the decision (PANEL: HEYTENS and BENJAMIN, Circuit Judges, and MOTZ, Senior Circuit Judge): https://www.ca4.uscourts.gov/opinions/231281.P.pdf

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

Come on, man! How is this a competent adjudication by the BIA? It isn’t! So, why is it happening time and again under Garland?

[T]he immigration court system must treat PSC determinations with the care they deserve!” Absolutely! But, it’s not happening in Garland’s “any reason to deny/defend garbage” DOJ! At least it’s not happening systemically under Garland! 

Rather than correcting IJ errors and insisting that the legal rights of migrants be respected and protected, the BIA too often has been a big part of the problem! Sloppiness, lack of expertise, “any reason to deny,” “reject don’t protect” have all become hallmarks of Garland’s dysfunctional system!

Alfred E. Neumann
Has Alfred E. Neumann been “reborn” as Judge Merrick Garland? “Not my friends or relatives whose lives as being destroyed by my ‘Kangaroo Courts.’ Just ‘the others’ and their immigration lawyers, so who cares, why worry about professionalism, ethics, and due process in Immigration Court?”
PHOTO: Wikipedia Commons

Contrary to GOP White Nationalist restrictionist blather, accepted by many spineless Dem politicos and the media, and enabled by Garland, this system should be identifying, screening, facilitating representation, expediting protection (not rejection), and arranging reception and resettlement, NOT engaging in more mindless “deterrence” and “uber enforcement.” 

Garland’s abject failure to insist on due process and stand up for the legal and human rights of asylum seekers and other migrants has undermined our democracy! There is a huge “over-denial“ problem in our asylum adjudication system that skews the entire “debate!”

Our nation, our politicos, and our media are simply too gutless and morally vapid to admit that there are many, many more individuals arriving at our borders who should qualify for some sort of legal protection under a fair and legitimate screening and adjudication system! 

Best comment, from Dan Kowalski @ LexisNexis: “Something is seriously wrong at DOJ when a seasoned IJ and BIA member make these kinds of mistakes, and when OIL attorneys defend such errors in court.  Crimmigration should not be so hard that it takes a team of litigation superstars to achieve a just result!”

Dan Kowalski
Dan Kowalski
Online Editor of the LexisNexis Immigration Law Community (ILC) — “He ‘gets’ it! So why don’t Garland and Dem leaders? Is Dan THAT much smarter than they are?  Sure looks like it!”

You betcha, Dan! “Something is seriously wrong at DOJ” is an understatement! Dan, Hon. “Sir Jeffrey” Chase, and I are among the many who have been saying that since the Obama Administration. It’s painfully obvious that Garland isn’t the answer (nor is Mayorkas), and that NDPA superstars like Ben and others should be in charge of the human rights legal and adjudication bureaucracies at DOJ and DHS in a Dem Administration! 

🇺🇸 Due Process Forever!

PWS

03-18-24

🏴‍☠️ GARLAND BIA’S MANTRA: “WHEN IN DOUBT, THROW ‘EM OUT!” 🤮 — I Dissent From The Wrong Decision In Matter of AZRAG, 28 I&N Dec. 784 (BIA 2024)!

Star Chamber Justice
The Garland BIA’s tortured pro-DHS logic is a constant trauma for immigration practitioners!

Matter of AZRAG, 28 I&N Dec. 784 (BIA 2024)

https://www.justice.gov/d9/2024-02/4073.pdf

BIA HEADNOTE:

Where a State court order granting a respondent’s motion to vacate a conviction does not indicate the reason for the vacatur, and there is no other basis in the record to independently establish the reason, the respondent has not satisfied his burden to show that the court vacated his conviction because of a substantive or procedural defect in his criminal proceedings.

FOR THE RESPONDENT: William M. Sharma-Crawford, Esquire, Kansas City,

Missouri

BEFORE: Board Panel: HUNSUCKER, PETTY, and CLARK, Appellate Immigration

Judges.

PETTY, Appellate Immigration Judge: [Opinion]

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

SCHMIDT, Judge of the Round Table, dissenting:

I dissent.

This respondent moves to reopen and terminate proceedings. His motion is biased on a valid order of a Kansas State Judge vacating the conviction that was the basis for his removal. I would grant the motion and terminate proceedings.

Contrary to the panel’s claim, the basis for the respondent’s motion to vacate the conviction in state court is clear on this record: the respondent was ineffectively advised by counsel during his criminal proceedings where he pled guilty. Notably, the U.S. Supreme Court has found that failing to properly advise a defendant of the immigration consequences of his conviction is ineffective assistance under the sixth amendment to the Constitution. Padilla v. Kentucky, 559 U.S. 356 (2010).

According to the record, the prosecuting attorney agreed with the respondent’s assertion. On the basis of that agreement and his review of the record, the state judge granted the motion. Thus the record shows that the reason for the action was a violation of the respondent’s sixth amendment rights during his criminal proceedings. There is no evidence that the state court acted “solely for immigration purposes” as the BIA found in Matter of Pickering, 23 I&N Dec. 621, 625 (BIA 2003), rev’d on other grounds, Pickering v Gonzales, 465 F.3d 263 (6th Cir. 2006).  Therefore, the panel’s reliance on Pickering is wrong.

Because there is no conviction supporting the DHS’s charge of removability, they have failed to meet their burden of proof. Consequently, these proceedings must be terminated.

Even if there were ambiguity in the state judge’s order, I would reach the same result. The INA places the burden of establishing removability on DHS by a very high “clear and convincing evidence” standard. INA section 240(c)(3)(A). Consequently, any ambiguities in the DHS’s proof must be construed against them. Therefore, even if I found some ambiguity as to the reason for the state judge’s order, the DHS would still fail to sustain their burden and proceedings should be terminated.

There is no evidence in this record that the state judge acted solely to eliminate immigration bars or for other rehabilitative purposes as was the case in Pickering. Therefore Pickering does not control. To get around this defect, the panel essentially invents a “presumption of immigration rehabilitative purposes” to fill the gap in their reasoning and save the DHS’s case. This attempt to overrule the statutory burden placed on DHS is clearly inappropriate.

For the foregoing reasons the DHS has not established the respondent’s removability by clear and convincing evidence. Therefore, I would grant the respondent’s motion to reopen and terminate proceedings. Consequently, I dissent from the panel’s unjustified denial of the motion.

🇺🇸 Due Process Forever

PWS

02-26-24

⚖️ FINALITY: BIA says “an appeal accepted under section 460.30 of the New York Criminal Procedure Law is classified as a direct appeal,” NOT a basis for removal! Matter of Brathwaite, 28 I & N Dec. 751 (BIA 2023) — Congrats to John Peng, Esquire!

 

https://www.justice.gov/d9/2023-10/4067.pdf

BIA HEADNOTE:

Because an appeal accepted under section 460.30 of the New York Criminal Procedure Law is classified as a direct appeal, a respondent with a pending appeal under this section does not have a final conviction for immigration purposes. Brathwaite v. Garland, 3 F.4th 542 (2d Cir. 2021), followed.

PANEL: GREER and SAENZ, Appellate Immigration Judges; PEPPER, Temporary Appellate Immigration Judge.

OPINION: Judge Anne J. Greer

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

While a welcome victory for the respondent, notably, this precedent only happened because the Second Circuit had reversed and remanded the BIA’s incorrect application of the finality standards! Brathwaite v. Garland, 3 F.4th 542 (2d Cir. 2021). Without great pro bono lawyering on his side, this respondent would have joined the many others wrongfully removed by EOIR’s sloppy approach to the law and justice for persons who happen to be migrants.

In other words, the “good enough for government” approach, despite some improvements in judicial hiring, still infects EOIR under Garland. Rather than pouring more money into walls, prisons, false “deterrents,” and trying to strip rights from migrants, Congress and the Administration should be focused on solving these glaring due process and quality control issues in the current system!

As I say over and over, unlike some aspects of human migration, this is a solvable problem! It’s not rocket science! 🚀 It’s just good government, dynamic, courageous leadership, and common sense! Better judges 👩🏽‍⚖️ for a better America!🇺🇸

Many congrats to NDPA star attorney John Peng of Prisoners’ Legal Services of New York!

John Peng Esquire
John Peng Esquire
Staff Attorney
Prisoners’ Legal Services of NY
PHOTO: PLSNY

John is a terrific example of the importance of immigration clinical education and the Immigrant Justice Corps! Here’s his bio:

John Peng,  Federal Litigation & Appellate Staff Attorney

John joined the Immigration Unit in August 2019 as an Immigrant Justice Corps Fellow. He received his J.D. from the University of Pennsylvania Law School. There, John was an active participant in the Transnational Legal Clinic and focused his coursework on immigration and international human rights law. John was admitted to practice law by the New York State Bar in January 2020.

Approximately four years out of law school, John is establishing legal precedents, saving lives, and leading the way for others! This type of “impact leadership by example” is exactly the vision that led to the establishment of the Immigrant Justice Corps! It’s also why aspiring lawyers who “want to make a difference” right off the bat should consider careers in immigration, human rights, and social justice!

🇺🇸 Due Process Forever!

PWS

10-24-23

🎬 NEW FROM COURTSIDE VIDEO: Ashley WARMELING & Paul Wickham SCHMIDT  — Together for The First Time! — Starring 🌟 in the Compelling Legal Thriller ⚖️ “CONFIDENCE WITH CRESPO” — A VIRGINIA DEFENDERS 🛡Production — Directed by Alison Powers & Katie Borton

Ashley I. Warmeling ESQUIRE
Ashley Warmeling ESQUIRE
Immigration Resource Attorney
Virginia Defenders
PHOTO: Linledin
Me
Paul Wickham Schmidt, Retired U.S. Immigration Judge

https://drive.google.com/file/d/11VCif9_I8fEiEDG7Y9n0dGNxRqHMs0ry/view?usp=sharing

Here’s what audiences are saying:

“Must see if you love your Virginia law license!”

____  Dean D’Ethico, Richmond

“Warmeling and Schmidt are awesome, we want more!”

____  Nola Contendre, Alexandria

“Best hour I ever spent!”

____ Sheila Savumall, Norfolk

“I feel like a better lawyer already!”

____ Pedro Pleademout, Fairfax

“Can’t wait for the sequel!”

____  Ginny Khort, Roanoke 

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

Here’s my “Crespo Shortlist”

PWS ON “DON’T’S OF CRESPO” – VA Defenders Training – 09-28-23 

  • Don’t plead guilty or nolo
  • Don’t admit or stipulate anything
  • Don’t go to trial
  • Don’t “chitchat” with judge or prosecutor on record (Pickering).

PWS ON CRESPO

🇺🇸 Due Process Forever!

PWS

10-05-23

⚖️🗽👩🏽‍⚖️👨🏽‍⚖️ ROUND TABLE 🛡⚔️ WEIGHS IN ON BURDEN OF PROOF FOR VACATED CONVICTION IN 9TH CIR.  — Jovel v.Garland 

Hon. Ilyce Shugall
Hon. Ilyce Shugall
U.S. Immigraton Judge (Retired)
Member Round Table of Former Immigration Judges

SUMMARY OF ARGUMENT

A criminal conviction vacated due to a substantive or procedural defect does not qualify as a “conviction” establishing a noncitizen’s removability under the Immigration and Nationality Act (INA). By the statute’s plain language, vacatur under section 1473.7(a)(1) conclusively establishes that the underlying conviction rested on a substantive or procedural defect: It allows people no longer in criminal custody to seek vacatur of convictions that were “legally invalid due to prejudicial error damaging the moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence.”

Even though a California court vacated the conviction of petitioner Jose Adalberto Arias Jovel under section 1473.7(a)(1), the BIA declined to sua sponte

2 Further statutory references are to the California Penal Code unless otherwise indicated.

-2-

RESTRICTED Case: 21-631, 07/05/2022, DktEntry: 35.1, Page 12 of 34

reopen Mr. Arias’ removal proceedings because it held that, as a noncitizen,

Mr. Arias had the burden to show that his conviction under section 1473.7(a)(1) was vacated on the merits, and Mr. Arias failed to meet that burden. If affirmed, the BIA’s holding creates several problems.

First, the holding requires IJs to second-guess a state court’s determination under section 1473.7(a)(1), despite the statute allowing vacatur only for prejudicial defects. The plain language of section 1473.7(a)(1) requires “prejudicial error” that renders the conviction “legally invalid,” and IJs should accept that the state court must have vacated the conviction due to a substantive or procedural error of law. Precedent requires IJs to apply the INA to a section 1473.7(a)(1) vacatur without second-guessing the state court’s ruling.

Second, even if a section 1473.7(a)(1) vacatur doesn’t conclusively establish a substantive or procedural defect, the burden is not on noncitizens like Mr. Arias to demonstrate their convictions were vacated on the merits. IJs are bound by Ninth Circuit precedent, which holds that the government bears the burden of proving whether a vacated conviction can still form the basis for removal. To shift the burden of proof to noncitizens (who do not have a constitutional right to counsel, may be detained, and often have limited English proficiency) is contrary to the law and will inevitably increase the likelihood of due process violations.

-3-

RESTRICTED Case: 21-631, 07/05/2022, DktEntry: 35.1, Page 13 of 34

Third, the government’s interpretation of section 1473.7(a)(1) will exacerbate the growing backlog of immigration cases and the enormous pressure that IJs face to eliminate the backlog. Given the severe time and resource constraints applied to the immigration court, deviating from the established law governing vacated convictions will greatly hinder the fair and efficient administration of immigration proceedings.

Here’s the full amicus brief:

2022-07-05 (Dkt. 35.1) IJ’s Amici Curiae Brief

Many thanks to NDPA Superstar 🌟 Judge Ilyce Shugall for taking the lead on this!

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

Here’s a nice “thank you” from respondent’s counsel Tomo Takaki at Covington & Burling, LA Office:

Dear former IJs and BIA members and GMSR Counsel,

Apologies for the delayed email, but thank you all again for your excellent and powerful brief.  It was truly invaluable to get the perspective of former IJs and BIA members on this important issue, especially regarding the unworkability of the BIA’s decision here.  It was particularly helpful to get GMSR’s appellate expertise on board here with such well-written advocacy.  Our client, and many like him, I’m sure deeply appreciate your efforts on their behalf.

 

Best,

Tomo Takaki

Covington & Burling LLP

And, of course many, many thanks to our all-star 🌟 pro bono counsel Stefan C. Love and Tina Kuang of  GREINES, MARTIN, STEIN & RICHLAND LLP in Los Angeles. Couldn’t do it without you guys and your excellence in appellate advocacy!

Garland’s DOJ inexplicably defends a bad BIA decision, unworkable and slanted against immigrants! Why don’t we deserve better from the Biden Administration? 

Why are scarce pro bono resources being tied up on wasteful litigation when Garland could appoint a “better BIA” dedicated to due process, fundamental fairness, practical scholarship, and best practices? Why not get these cases right at the Immigration Court level? Why not free up pro bono resources to represent more respondents at Immigration Court hearings? What’s the excuse for Garland’s poor leadership and lack of vision on immigration, human rights, and racial justice?

Sure, there have been a few modest improvements at EOIR. But, it’s going to take much, much more than “tinkering around the edges” to reform a broken system that routinely treats individuals seeking justice unfairly, turns out bad law that creates larger problems for our legal system, and builds wasteful and uncontrolled backlogs. 

Accountability and bold progressive reforms don’t seem to be politically “in” these days.  But, they should be! Responsibility for the ongoing mess at EOIR and the corrosive effects on our justice system rests squarely on Garland and the Biden Administration.

🇺🇸 Due Process Forever!

PWS

07-09-22

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

⚖️BIA BLOWS OFF SUPREMES, AGAIN! — This Time On “Crime Of Child Abuse” — Judge Aaron Petty With Rare Dissent — Matter of AGULAR-BARAJAS, 28 I&N Dec. 354 (BIA 2021)

 

https://www.justice.gov/eoir/page/file/1419101/download

Matter of Jose AGUILAR-BARAJAS, Respondent

Decided July 30, 2021

U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals

(1) The offense of aggravated statutory rape under section 39-13-506(c) of the Tennessee Code Annotated is categorically a “crime of child abuse” within the meaning of section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2018).

(2) The Supreme Court’s holding that a statutory rape offense does not qualify as “sexual abuse of a minor” based solely on the age of the participants, unless it involves a victim under 16, does not affect our definition of a “crime of child abuse” in Matter of Velazquez-Herrera, 24 I&N Dec. 503 (BIA 2008), nor does it control whether the respondent’s statutory rape offense falls within this definition. Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017), distinguished.

FOR RESPONDENT: Sean Lewis, Esquire, Nashville, Tennessee

FOR THE DEPARTMENT OF HOMELAND SECURITY: Peter Gannon, Associate Legal Advisor

BEFORE: Board Panel: HUNSUCKER, Appellate Immigration Judge; NOFERI, Temporary Appellate Immigration Judge. Concurring and Dissenting Opinion: PETTY, Appellate Immigration Judge.

HUNSUCKER, Appellate Immigration Judge [Majority Opinion]

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

Key Quote From Judge Petty’s Dissent:

The Supreme Court has held that the generic age of consent is 16. Esquivel-Quintana v. Sessions, 137 S. Ct. 1562, 1572 (2017). Accordingly, absent aggravating circumstances, consensual sexual activity between an adult and a minor over 16 is not categorically “abusive.” If a statutory rape statute sweeps more broadly than the generic definition (in other words, if it sets the age of consent above 16) it cannot form the predicate offense for removability under section 237(a)(2)(E)(i) of the Act for having been convicted of a crime of child abuse. There can be no categorical “child abuse” where the criminalized conduct is not categorically abusive. Here, the respondent was convicted of violating a statute that sets the age of consent at 18. Because the Supreme Court has left us no other option, I would dismiss the DHS’s appeal and terminate the respondent’s removal proceedings.

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

In the Pereira fiasco, the BIA’s unwillingness to follow the Supremes’ lead when it conflicted with their “mission” of helping out DHS enforcement (a stated objective of Jeff “Gonzo Apocalypto” Sessions) created big time practical problems that could and should have been avoided. 

🇺🇸Due Process Forever!

PWS

08-01-21

GARLAND’S BIA, OIL “TAKE IT ON THE NOSE” AGAIN:  2d Cir. “Slam Dunks” Matter of J.M. Acosta, 27 I&N Dec. 420 (BIA 2018) (finality of conviction):  “The BIA’s burden-shifting scheme and its accompanying evidentiary requirement amounts to an unreasonable and arbitrary interpretation of the IIRIRA.” 

Casey Stengel
“Hey Judge Garland! Why not put some REAL judges who can ‘play this game’ into your lineup? What’s with the ‘minor league roster’ left over from the guys who couldn’t shoot straight?”
PHOTO: Rudi Reit
Creative Commons

 

Here’s the full decision in Brathwaite v. Garland:

https://www.ca2.uscourts.gov/decisions/isysquery/1284dac9-6e02-4262-ae63-657649702452/1/doc/20-27_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/1284dac9-6e02-4262-ae63-657649702452/1/hilite/

Court summary:

Petitioner Aldwin Junior Brathwaite petitions for review of an order of removability, entered by the Honorable Joy A. Merriman, U.S. Immigration Judge (“IJ”), on June 11, 2019, and approved by the Board of Immigration Appeals (“BIA”) on December 11, 2019. Because the BIA’s decision is premised on an unreasonable construction of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), we GRANT the petition for review and REMAND the matter to the BIA for further proceedings consistent with this opinion.

PANEL: CALABRESI, RAGGI, AND CHIN, Circuit Judges.

OPINON BY: Judge Calabresi

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

Man, even with all the ridiculous “built in tilt” favoring Executive interpretations in Chevron, the BIA still blew it! Normally, in their attempt not to burden their comfortable lives with difficult questions of law, the Article III’s will find that any minimally rational interpretation of an ambiguous provision is “good enough for Government work” under Chevron.  But, the BIA couldn’t even clear that “low hurdle!” Simply amazing!

Particularly so when you think that one of the (bogus) justifications often given for “Chevron task avoidance” by the Article IIIs is the “superior expertise” of the Executive adjudicators, clearly  a mirage in the case of the BIA and EOIR! At least over the past four years, the primary “expertise” for being selected for an EOIR judgeship has been past government experience, preferably in prosecution, a willingness to check the “deny box,” and ability to crank out the required minimum number of final orders of removal without thinking too much, rocking the boat, or, heaven forbid, actually vindicating the rights of migrants over the wishes of “The Partners” at DHS Enforcement! What a total sham that Garland is now presiding over!

Two years of litigation to “get back to ground zero!” And, you wonder why Garland’s Immigration Courts continue to careen out of control and generate backlog faster than they do positive legal guidance and best practices?

At core, courts are about problem solving, and judges are supposed to be “expert practical problem solvers.” Try to unearth those essential qualities in the disgracefully flawed “judicial” hiring practices at EOIR since 2000!

I note that no “outside expert” has been appointed to the BIA since before the 2000 election. Those few who were there in 2000 were rapidly “purged” by Ashcroft, sending the strong message that “expertise and independent voting” will be “career limiting and threatening” at the BIA.

That was followed by thoroughly rotten “jurisprudence” from the BIA that actually provoked widespread outrage among the Article IIIs at the time. The outcry became so loud, that finally even the Bush II Administration had to “tone down” the anti-immigrant rhetoric and abusive treatement of migrants and their attorneys in Immigration Court that Ashcroft’s “purge” engendered and encouraged. Of course, in doing so, DOJ officials disingenuously blamed the Immigration Judges rather than the “perps” in their own ranks who had declared “open season” on migrants’ rights and human dignity.

Not surprisingly, bad, biased hiring practices, which have intentionally excluded and grossly undervalued the most promising  expert problem solvers from outside government bureaucracy, have produced a dysfunctional morass at EOIR. The lack of that basic recognition, even from a recently retired Federal Appellate Judge who should know better, is destroying the foundations of our justice system! Enough already! We need, American Justice needs, progressive reforms at EOIR! NOW, not sometime off in the indefinite future!

Yup, there might be problems with an appellate board that almost always tries to skew things against individual applicants. Rushing to crank out those final orders of removal and pushing already overwhelmed IJ’s to “just pedal faster” might not be a very good “strategy.” And, the lack of professional training, competent judicial administration, expert guidance from the BIA, and unwillingness to implement best practices further deteriorates the Immigration Courts every single day.

While fundamental improvements in personnel and administration at EOIR are well within Garland’s reach, he seems relatively uninterested in taking the bold, courageous actions necessary to restore due process. So, litigating his ludicrously broken, unfair, and dysfunctional system to a standstill, while supporting legislation to get an independent court, appear to be progressive advocates’ only viable options at this point. 

This issue is likely to end up in the Supremes. In the meantime, however, there should be lots of backlog-building remands in the Second Circuit. And, who knows whether the BIA will get it right this time around. Even after court remands, their record isn’t particularly encouraging.

The BIA probably will have to wait for OIL, their political handlers at DOJ, and DHS enforcement to “signal” what the “preferred result for litigating purposes” is before venturing forth on another precedent. Does this sound like “fair and impartial adjudication” under Matthews v. Eldridge? No way! So  why is EOIR continuing to operate as a “Constitution free zone” under Garland?

It’s past time for Garland to pull the plug and give progressive experts a chance to rescue his dysfunctional court system and save many of the individuals caught up in this never-ending due process nightmare! When will they ever learn, when will they ever learn? 

Amateur Night
Much to the shock, consternation, frustration, puzzlement, and horror of progressive advocates who helped him replace Billy Barr as AG, it’s been three continuous months of “Amateur Night @ EOIR” under Judge Garland! Predictably, many Article IIIs haven‘t been enthralled with this performance! How many cases will be remanded from the Article IIIs and how much more backlog will be unnecessarily generated before Garland wakes up and pays attention?
PHOTO: Thomas Hawk
Creative Commons
Amateur Night

🇺🇸Due Process Forever!

PWS

06-25-21

⚖️SUPREME UNANIMITY: Immigrant Loses On Collateral Challenge To Legally Incorrect Removal Order! — U.S. v. Palomar-Santiago

U.S. v. Palomar-Santiago, Sup Ct., 05-24-21

https://www.supremecourt.gov/opinions/20pdf/20-437_bqmc.pdf

Syllabus by Court Staff:

Syllabus

UNITED STATES v. PALOMAR-SANTIAGO CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

No. 20–437. Argued April 27, 2021—Decided May 24, 2021

Respondent Palomar-Santiago, a Mexican national living in the United States, was convicted in California state court of felony DUI in 1988. At the time, lower courts understood that conviction to be an “aggravated felony” subjecting a noncitizen to removal from the United States. 8 U. S. C. §1227(a)(2)(A)(iii). Palomar-Santiago was removed following a hearing before an immigration judge and a waiver of his right to appeal. In 2017, Palomar-Santiago was found in the United States and indicted on one count of unlawful reentry after removal. See §1326(a). The statute criminalizing unlawful reentry provides that a collateral challenge to the underlying deportation order may proceed only if the noncitizen first demonstrates that (1) “any administrative remedies that may have been available” were exhausted, (2) “the opportunity for judicial review” was lacking, and (3) “the entry of the order was fundamentally unfair.” §1326(d). Palomar-Santiago moved to dismiss the indictment on the ground that his prior removal order was invalid in light of the 2004 holding in Leocal v. Ashcroft, 543 U. S. 1, that felony DUI is not an aggravated felony. Following Ninth Circuit precedent, the District Court and Court of Appeals held that Palomar-Santiago was excused from proving the first two requirements of §1326(d) because his felony DUI conviction had not made him removable. The District Court granted the motion to dismiss, and the Ninth Circuit affirmed.

Held: Each of the statutory requirements of §1326(d) is mandatory. Pp. 5–8.

(a) The Ninth Circuit’s interpretation is incompatible with the text of §1326(d), which provides that defendants charged with unlawful reentry “may not” challenge their underlying removal orders “unless” they “demonstrat[e]” each of three conditions. Section 1326(d)’s first

2

UNITED STATES v. PALOMAR-SANTIAGO Syllabus

two requirements are not satisfied just because a noncitizen was re- moved for an offense that should not have rendered him removable. The substantive validity of a removal order is quite distinct from whether the noncitizen exhausted administrative remedies or was deprived of the opportunity for judicial review. P. 5.

(b) Palomar-Santiago’s counterarguments are unpersuasive. First, he contends that further administrative review of a removal order is not “available” for purposes of §1326(a) when a noncitizen will not recognize a substantive basis to challenge an immigration judge’s conclusion that a prior conviction renders the noncitizen removable. The immigration judge’s error on the merits does not excuse the noncitizen’s failure to comply with a mandatory exhaustion requirement if further administrative review, and then judicial review if necessary, could fix that very error. Ross, 578 U. S. 632, distinguished.

Second, Palomar-Santiago contends that §1326(d)’s prerequisites do not apply when a defendant argues that a removal order was substantively invalid. There can be no “challenge” to or “collateral attack” on the validity of substantively flawed orders, he reasons, because such orders are invalid when entered. This position ignores the plain mean- ing of both “challenge” and “collateral attack.”

Lastly, Palomar-Santiago invokes the canon of constitutional avoidance. But this canon “has no application in the absence of statutory ambiguity.” United States v. Oakland Cannabis Buyers’ Cooperative, 532 U. S. 483, 494. Here, the text of §1326(d) unambiguously fore- closes Palomar-Santiago’s interpretation. Pp. 5–7.

813 Fed. Appx. 282, reversed and remanded.

SOTOMAYOR, J., delivered the opinion for a unanimous Court.

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

The lesson here for advocates: Exhaust those administrative appeals and judicial review even when your case seems hopeless. Otherwise, your client will be barred from taking advantage of later changes in the case law. After the fact, a “mere showing of fundamental unfairness” is not sufficient! And, you could be charged with malpractice by recommending that appeals and judicial review be waived.

This ought to generate more clogging of the Federal Courts, particularly the way the BIA is deciding cases these days. But, it’s what the Supremes unanimously asked for, so we have to take them at their word!

Due Process Forever!

PWS

05-24-21

☠️AMERICAN INJUSTICE: BIA “Double Doinks” Again — Normally “Gov. Friendly” 11th Cir. Finds “ICE-Owned & Operated” Jurists Violated Plain Statutory Language & Supremes’ Precedent In Failed Effort To Deport Former U.S. Citizen! — Another Bad Day For Deadly “Falls Church Clown Show” 🤡🦹🏿‍♂️!  

Star Chamber Justice
“Justice”
Star Chamber
Style

How horrible is today’s BIA? Well, there are endless examples documented in Courtside and the Jeffrey S.Chase Blog from my friend and Round Table colleague. But, here’s a particularly striking recent travesty from our friend Dan Kowalski over at LexisNexis Immigration Community:

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca11-on-plain-meaning-hylton-v-atty-gen

The case is Hylton v. Att’y Gen. Here, the 11th Circuit Court of Appeals, hardly a hotbed of judicial liberalism or anti-Government sentiment, reamed the “Star Chamber BIA” for 1) misreading the plain statutory language, and 2) ignoring controlling Supreme Court precedent to reach an anti-migrant result. 

This is merely the latest in a long line of screw-ups resulting from a powerful appellate body that lacks independence, expertise, and the institutional courage to uphold individual rights against the constant overreach of DHS Enforcement (characterized as “partners” by Sessions & Barr — how would you like to be tried by a “court” where the prosecutors and the judges are “in partnership” to extinguish your legal rights and humanity?)

Two major legal errors by supposed “expert judges” in the same case? Oh, and get this! This case misreading the “plain language” of the statute and dissing binding precedent from the Supremes, just to produce an (illegal) order of removal, was deemed so “routine” at the “Falls Church denial factory,” that it was handled by a single appellate “judge” — didn’t even merit consideration by a three-member panel! 

That’s what the DOJ’s politically-motivated “deny and deport culture” produces. And, it’s not like this is an aberration; the BIA cranks out this sloppy garbage on a daily basis. Most of it doesn’t get caught by the U.S. Courts of Appeals, who all too often are on their own type of “autopilot” when it comes to the legal rights of migrants — many of them people of color!

For Judge Garland to be credible on any racial justice issue, and for EOIR to provide due process, we need radical, not incremental, change!

🇺🇸⚖️🗽Due Process Forever! 

PWS

04-07-21

🛡⚔️ROUND TABLE SUPERHERO 👨🏻‍⚖️JUDGE (RET) JOHN GOSSART SPEAKS OUT FOR JUSTICE IN BALTIMORE SUN OP-ED!

 

Judge John F. Gossart, Jr.
Retired Judge John F. Gossart, Jr.
Member, Round Table of Former Immigration Judges
Photo Source: YouTube.com

https://www.baltimoresun.com/opinion/op-ed/bs-ed-op-0207-pbj-deportation-20210205-4td5rmdayraobpp4fejuvdxfo4-story.html

A finding of ‘probation before judgment’ should never lead to deportation | COMMENTARY

By JOHN F. GOSSART JR.

FOR THE BALTIMORE SUN |

FEB 05, 2021 AT 5:31 AM

“May God forgive you, because I cannot.”

These words were written to me in a letter while I was a United States immigration judge at the Baltimore Immigration Court, where I presided for 31 years. The letter was written by the wife of a man I had ordered deported. In so doing, I had permanently separated a father and husband from his wife and children. These words will stay with me for the rest of my life.

Michelle Jones’ husband, Daryl, was charged with a minor offense in Maryland. Like many first-time offenders and individuals charged with minor violations, he was given probation before judgment (PBJ). This meant that Daryl, a lawful permanent resident of the United States was not convicted under Maryland state law. For United States citizens, a Maryland PBJ poses no further consequences unless they violate the terms of their probation. But for non-citizens like Daryl, the legal consequences can be far more dire.

Although a PBJ is not considered a conviction under state law, it is considered a conviction under federal law and therefore triggers immigration consequences, such as detention and deportation. I have witnessed countless non-citizens be ordered deported as a result of a PBJ and the devastation to their families that follows. I myself have ordered the deportation of hundreds of Maryland residents like Daryl because of a PBJ. It didn’t matter that these individuals had been deemed worthy of a second chance and not convicted under Maryland law. Their PBJs condemned them to the gravest punishment — deportation under federal immigration law — leaving me with no judicial discretion. My hands were tied by the law.

The Maryland General Assembly has the opportunity, and the responsibility, to correct this unjust system by amending the PBJ statute. That is why I am asking the Maryland General Assembly to pass legislation (House Bill 354/Senate Bill 527) that would make probation before judgment accessible to all Maryland residents, regardless of citizenship status. The amendment would merely change the process by which a PBJ is entered; the impact of a PBJ would remain unchanged.

This bill ensures that the consequences of PBJs are the same for citizens and non-citizens alike, narrowing the disparities in our criminal justice and immigration systems, which disproportionately affect people of color. And for someone like Daryl, it would have been the difference between deportation and staying in the country to be with his family and watch his kids grow up.

. . . .

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

Read the full op-ed at the link.

All of us who have served on the immigration bench have had cases like Daryl’s where the result is unjust and there is no sensible explanation for what we were forced to do.

The time for rationalizing and humanizing our immigration laws is here. As my long-time friend and colleague (we were “present at the beginning” of EOIR) John says, we must seize and act on every opportunity to make due process and equal justice under law a reality for all persons in America!

Thanks, my friend and colleague!

Historical trivia:  I made one of my rare Immigration Court appearances before Judge Gossart in a pro bono case when I was at Frogomen DC. It was an asylum case, and we won at the preheating conference! I do remember that Judge Gossart was pretty peeved at me because I refused to concede removability, asserting my client’s right to be in and remain in the U.S. as a refugee/asylee. He “ripped me” on that issue, but we won on everything else. The INS Attorney didn’t contest it, as I remember.

One of my other pro bono appearances was before my friend and Round Table colleague Judge Joan Churchill in Arlington. Won that one too — recollect it was a withholding of removal case, also resolved through pretrial agreement with the INS Attorney at the suggestion of Judge Churchill.

Didn’t get to show off my “litigation skills” in either case. Probably just as well. A “W” is a “W,” and a life saved is a life saved!

⚖️🗽🇺🇸Due Process Forever!

PWS

02-05-21

🏴‍☠️☠️👎🏻BILLY’S BIA BLOWS ANOTHER — After Two Trips to The 8th Cir. Over 5 Years, The BIA Is Batting .000 — Ortiz v. Barr — CIMT

Dan Kowalski
Dan Kowalski
Online Editor of the LexisNexis Immigration Law Community (ILC)

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/ca8-on-cimt-ortiz-ii-obstruction

Dan Kowalski reports for LexisNexis Immigration Community:

CA8 on CIMT: Ortiz II (Obstruction)

Ortiz v. Barr

“[In Ortiz I, this] Court determined that a conviction under Minn. Stat. Ann. § 609.50, subdiv. 2(2) [obstruction of legal process, arrest, or firefighting] is not categorically a crime of violence—and, thus, not an aggravated felony—because the minimum amount of force required to sustain a conviction under that statute is less than the level of force required to constitute a crime of violence under Johnson v. United States, 559 U.S. 133, 140 (2010). Ortiz v. Lynch, 796 F.3d 932, 935-36 (8th Cir. 2015). Accordingly, we granted Ortiz’s petition for review, vacated the order of removal, and remanded to the BIA to decide whether Ortiz’s prior conviction nonetheless subjected him to removal under 8 U.S.C. § 1227(a)(2)(A)(i) as a crime involving moral turpitude.

… Pursuant to the parties’ joint motion, the BIA remanded the case to the IJ to decide the issue. Ortiz again moved to terminate removal proceedings, arguing that a conviction for obstruction of legal process under Minn. Stat. Ann. § 609.50, subdiv. 2(2) is not a crime involving moral turpitude. The IJ denied the motion, finding that Ortiz’s prior conviction was categorically a crime involving moral turpitude because (1) the statute requires intentional conduct, and (2) using or threatening force or violence to obstruct legal process entails conduct that is inherently base, vile, or depraved and contrary to accepted rules of morality. Accordingly, the IJ sustained the charge of removability under 8 U.S.C. § 1227(a)(2)(A)(i) and ordered Ortiz’s removal from the United States to Mexico on that basis. The BIA affirmed the IJ’s decision, adding that the minimum conduct punishable by the statute falls within the definition of “moral turpitude” because it involves some aggravating level of force or violence in the context of interference with important and legitimate government functions. Ortiz again filed a timely petition for review.

…  [W]e conclude that the BIA erred in finding that a conviction under Minn. Stat. Ann. § 609.50, subdiv. 2(2) is categorically a crime involving moral turpitude. For the foregoing reasons, we hold a conviction under Minn. Stat. Ann. § 609.50, subdiv. 2(2) is not categorically a crime involving moral turpitude under 8 U.S.C. § 1227(a)(2)(A)(i). We, therefore, grant Ortiz’s petition for review and vacate the order of removal.”

[Attorney David L. Wilson writes: “This statement is particularly helpful and could go unnoticed. The court wrote, “Further, because subdivision 2(2) is a penalty provision, rather than a “statutory element[] that criminalize[s] otherwise innocent conduct,” the presumption in favor of a scienter requirement does not apply. United States v. X-Citement Video, Inc., 513 U.S. 64, 72 (1994).” The government has been trying to invoke this argument for some time, and the Eighth just shut it down.  A round of applause to Anne Carlson for the first round of the fight, and Brittany Bakken for bearing with me for the second round.”]

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

Bottom line: For more than five years over two Administrations on a number of charges, EOIR has been attempting to wrongfully deport this individual. This falls below the “minimum level of competence” that should be expected of an “expert tribunal” that is nothing other than a deportation factory with a fancy title. And, let’s remember that the 8th Circuit, out in the middle of “America’s Heartland,” is hardly the 9th Circuit, the 7th Circuit, or even the 4th Circuit, all of which have been much more openly critical of the BIA’s lousy performance.

The cost of “deportation at any cost” is too high for America! Whatever happened to due process, fundamental fairness, and impartial judging? Gone by the wayside! No wonder this unfair and dysfunctional system is running a largely self-inflicted backlog of more than 1.4 million known cases and “who knows how many” that are lost or otherwise “off-docket” in the EOIR morass of biased judging and gross mismanagement.

When will it end? How many will be wrongfully deported or die because one of American’s largest “court” systems (that isn’t’ a “court” at all) is allowed to continue to operate far below minimum levels of constitutionality and competence?

Due Process Forever!

PWS

06-29-30

1ST CIR. THWARTS BIA’S ATTEMPT TO USE “SUA SPONTE” AUTHORITY TO COVER UP ARBITRARINESS, BIAS, & CLEAR LEGAL ERROR! — Thompson v. Barr

Dan Kowalski
Dan Kowalski
Online Editor of the LexisNexis Immigration Law Community (ILC)

 

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/ca1-on-pardons-thompson-v-barr

Dan Kowalski reports on LexisNexis Immigration Community:

pastedGraphic.png

Daniel M. Kowalski

22 May 2020

CA1 on Pardons: Thompson v. Barr

Thompson v. Barr

“Petitioner Richard Marvin Thompson (“Thompson”) appeals the Board of Immigration Appeals’ (“BIA”) denial of his motion to reopen sua sponte his immigration proceedings, alleging that the BIA committed a clear legal error. Thompson asks this Court to exercise jurisdiction to review whether the BIA clearly erred when it determined that he was not entitled to relief from deportation under section 237(a)(2)(A)(vi) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1227(a)(2) (A)(vi) (the “Pardon Waiver Clause”), because a pardon issued by the Connecticut Board of Pardons and Paroles is “not effective for purposes of establishing entitlement to” a waiver of deportation. Because we find that this Court has jurisdiction to review this colorable legal question and because, here, the BIA departed from its settled course of adjudication, we vacate the decision of the BIA and remand for further proceedings consistent with this opinion.”

[Hats off to Gregory Romanovsky, William M. Tong, Attorney General of Connecticut, Jane Rosenberg, Assistant Attorney General, Clare Kindall, Solicitor General, amicus curiae for the State of Connecticut, Trina Realmuto, Kristin Macleod-Ball and Emma Winger!]

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

So, let’s take a little closer look. Thompson immigrated legally to the U.S. in 1997, at age 14. Nearly two decades ago, Thompson was convicted of second degree assault in Connecticut and given a suspended sentence and 3-years probation. In other words, no jail time. 

He successfully completed probation, got a GED, and worked as a commercial operator for 10 years. Essentially, Thompson successfully rehabilitated and became a productive member of society. 

In 2012, the Obama Administration DHS, in its wisdom, instituted removal proceedings against Thompson based on his 2001 Connecticut assault conviction. After being found removable and losing on appeal, Thompson received a full and complete pardon from the Connecticut State Board of Pardons, the highest pardoning authority in the state. Although established by the legislature, the Board of Pardons’ action was deliberative and based on an assessment of the factors in Thompson’s individual case. It was not an “automatic expungement” pursuant to legislation.

Since the time for filing a motion to reopen had expired, Thompson asked the BIA to reopen his case “sua sponte” — on its own motion — to recognize that the pardon had eradicated the legal basis for removal.

Following its previous rulings, as well as sound policy and common sense, the BIA should promptly have granted Thompson’s motion and terminated proceedings in a two or three sentence order. Instead, the BIA, now operating under the “Trump removal regime in 2018,” denied the motion based on specious reasons that deviated without rational explanation from their prior treatment of substantially identical motions. 

The BIA’s action touched off approximately 20 months of furious litigation involving a small army of lawyers on both sides, including the Connecticut Attorney General and the Connecticut Solicitor General, as well as the American Immigration Council, filing briefs in support of Thompson.

Following this 34-page opus by the First Circuit, Thompson’s case is by no means over. It’s been “orbited” back to the “Weird World of EOIR” where Thompson might, or might not, receive justice at some undetermined point in the future. To make matters even worse, Thompson remains detained at the Etowah County Detention Center in Gadsden, Alabama. Alabama is one of the current “hot spots” for COVID-19.

Is it any wonder that a “weaponized,” overtly anti-immigrant “court system” that looks for “reasons to deny” meritorious cases, rather than promoting prompt and efficient due process in deserving cases is running a backlog of approximately 1.4 million “on and off calendar” cases?

The longer the reviewing Circuit Courts keep up the fiction of treating EOIR as a legitimate adjudicative organization rather than the biased, “non-expert,” unconstitutional extension of DHS Enforcement that it has become, the bigger the mess will get and the more injustice that will be done to individuals like Thompson.  

Meanwhile, legions of lawyers and judges at all levels, who could and should be devoting their talents to operating a constitutional immigration justice system that provides “due process and fundamental fairness with efficiency and humanity for all concerned” will instead continue to flail as a result of this “designed and operated to fail” system run by a kakistocracy to produce injustice and to squander judicial time and legal resources on a massive scale. When will it ever end?

Due Process Forever!

PWS

05-24-20

LET’S HEAR IT FOR AMERICA’S “TRUE LEGAL HEROES” – “MD Carey School of Law and CLINIC: ‘Keeping Families Together’”

 

https://www.law.umaryland.edu/News-and-Events/News-Item/Keeping-Families-Together.php?fbclid=IwAR34KEpIXMTmWiT_xaKHHgMVk0qvfG22T3GuuEulLU54nu_A3ov4WH-XCcA

Keeping Families Together

Professor Maureen Sweeney (l) with student attorney Tonya Foley ’21.
Professor Maureen Sweeney (l) with student attorney Tonya Foley ’21.

Tonya Foley ’21 knew she was meant for a career in immigration law well before applying to law school. Living in Naples, Italy, during the 2015 refugee crisis, the mom of two was deeply impacted by her interactions with people who had risked their lives in rubber boats to find a safe harbor.

So, when picking a law school, one of the most important factors for Foley was a robust immigration clinic. That’s why she chose the University of Maryland Francis King Carey School of Law.

“I feel strongly about using the privilege of this education to help people,” said Foley. “The immigration system is so complicated that legal representation can make all the difference.”

Foley and her colleagues at the Maryland Carey Law Immigration Clinic, led by Professor Maureen Sweeney, proved that last fall when they won permanent residency for the mother in a family with two teenagers who had never known another home than the United States.

The student attorneys, including Foley, Alba Sanchez Fabelo ’20, and Miles Light ’21, “did an amazing job,” said Sweeney, “gaining the trust of the family, documenting the hardship that would accompany deportation, and convincing the judge to grant residence.”

The case was referred to the Immigration Clinic by Maryland Carey Law alumna Michelle Mendez ’08, director of the Defending Vulnerable Populations program at the Catholic Legal Immigration Network, Inc. (CLINIC), a national non-profit.

Through three job changes, Mendez had been working the case pro bono since her days as an Equal Justice Works fellow in 2009. That’s when her client was taken away in handcuffs in front of her two young children for a minor traffic violation (later dismissed) in the parking lot of a church where her husband was teaching youth group bible study, and turned directly over to Immigration and Customs Enforcement (ICE).

Years passed as Mendez fought through multiple denials and appeals to keep her client in the country, finally getting the case reopened in light of new evidence that the mother’s daughter was exhibiting emotional issues—including a crippling fear of police officers—and learning disabilities at school. Arguments before Baltimore Immigration Court were set for November 2019.

“Knowing I could not give this family the time and attention they needed and deserved,” said Mendez, whose current position is travel intensive, “with a heavy heart, I asked Professor Maureen Sweeney if the University of Maryland Carey School of Law Immigration Clinic would take over the case. They were one of the only groups I would trust with it.”

Sweeney agreed and, at the start of the fall semester, the students got to work—meeting weekly with the family, tracking down expert witnesses, gathering evidence, preparing affidavits, and, finally, making their case in court just before Thanksgiving. The students’ preparation and presentation were so thorough and effective that the judge ruled for permanent residency stipulating exceptional hardship for the children if their mother were deported to a region in Central America with insufficient resources to meet the daughter’s special needs.

Foley, who will join Sweeney helping asylum seekers in Tijuana for this year’s Alternative Spring Break, said that working on the case was an incredible experience for her first time in immigration court. “I was honored to be able to help the client and give her family long-term peace and security,” she said. “It’s what I’m here to do.”

Equally thrilled by the result, Mendez is grateful for the clinic’s hard work. “It took more than a decade,” she said, “but we won the greatest prize—we kept a family together.”

All full-time day students at the University of Maryland Francis King Carey School of Law are guaranteed practical lawyering experience in the school’s many clinics and legal theory and practice classes. Each year, students in the Clinical Law Program provide 75,000 hours of free legal service to poor and other underrepresented populations and communities.

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Thanks so much Michelle, my good friend and colleague in the New Due Process Army, for sharing this inspiring and uplifting story. With so much “negative leadership” out there today and all too many “poor role models” among judges and lawyers who “should know better,” it’s refreshing to know that folks like Professor Maureen Sweeney, Tanya Foley ‘21, Alba Sanchez Fabelo ’20, Miles Light ’21, and you are out there as members of the “New Due Process Army” fighting for all of our legal rights in a system that all too often appears to have abandoned the basics of the rule of law, professional ethics, and human decency.

 

Saving Lives Makes A Difference; Due Process Forever!

 

PWS

 

02-16-20

ROUND TABLE SPEAKS OUT AGAINST EXPANDED ASYLUM BARS!

Hon. Ilyce Shugall
Hon. Ilyce Shugall
U.S. Immigraton Judge (Retired)
Director, Immigrant Legal Defense Program, Justice & Diversity Center of the Bar Assn. of San Francisco.

ROUND TABLE SPEAKS OUT AGAINST EXPANDED ASYLUM

 

                                       January 19, 2020

 

VIA E-RULEMAKING PORTAL: www.regulations.gov

 

Lauren Alder Reid, Assistant Director

Office of Policy, Executive Office for Immigration Review

5107 Leesburg Pike, Suite 2616

Falls Church, VA 22041

 

Maureen Dunn, Chief

Division of Humanitarian Affairs, Office of Policy and Strategy

U.S. Citizenship and Immigration Services

Department of Homeland Security

20 Massachusetts Ave. NW

Washington, DC 20529-2140

 

Re:      EOIR Docket No. 18– 0002

 

 

Dear Ms. Alder Reid and Ms. Dunn,

 

We are writing as members of the Round Table of Former Immigration Judges to express our strong opposition to the Department of Justice and Department of Homeland Security Joint Notice of Proposed Rulemaking (“proposed rule”) on “Procedures for Asylum and Bars to Asylum Eligibility”.

 

The Round Table of Former Immigration Judges is a group of former Immigration Judges and Board of Immigration Appeals (BIA) Members who united to file amicus briefs and engage in other advocacy work.  The group formed in 2017.  In just over two years, the group has grown to more than 40 members, dedicated to the principle of due process for all. Its members have served as amici 37 times in cases before the Supreme Court, various circuit courts, the Attorney General, and the BIA.  The Round Table of Former Immigration Judges has also submitted written testimony to Congress and has released numerous press statements and a letter to EOIR’s director. Its individual members regularly participate in teaching, training, and press events.

 

The Round Table opposes the proposed rule which violates the Immigration and Nationality Act, the United States Constitution, and the country’s international treaty obligations.  Each member of the Round Table has adjudicated applications for asylum and is intimately familiar with the asylum adjudication process.  Accordingly, the Round Table has the following concerns about the additional asylum bars and limits to immigration judges’, appellate immigration judges’, and asylum officers’ ability to exercise discretion in asylum cases.

 

The Round Table asserts that immigration judges and asylum officers who have been tasked with adjudicating asylum cases, are in the best position to assess the impact of criminal conduct and convictions on asylum applications.  The task of analyzing and reviewing criminal conduct and convictions should not be taken away from the judges and asylum officers through regulation.  Asylum seekers are the most vulnerable members of society who are seeking refuge in the United States.  Trained judges and asylum officers should have the authority to consider their cases, even where the applicants have criminal convictions.  Such authority is designated to the judges and asylum officers by statute.[1]

 

The agencies justify the expansive limitations on asylum by citing the authority designated to the Attorney General in the statute: “Congress further provided the Attorney General with the authority to establish by regulation ‘any other conditions or limitations on the consideration of an application for asylum,’ so long as those limitations are ‘not inconsistent with this chapter.’ INA 208(d)(5)(B), 8 U.S.C. 1158(d)(5)(B); see also INA 208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C).”  The new bars and limits on discretionary relief set forth in the proposed regulation are not consistent with the statute and are contrary to Congressional intent.  They also interfere with the role of immigration judges and asylum officers.  We therefore oppose the proposed additional bars to eligibility, the clarification of the effect of criminal convictions, and the removal of regulations regarding reconsideration of discretionary denials of asylum.

 

Additional Limitations on Eligibility for Asylum

 

The proposed rule intends to bar asylum to individuals convicted of nearly any criminal offense in the United States:

 

Those bars would apply to aliens who are convicted of (1) a felony under federal or state law; (2) an offense under 8 U.S.C. 1324(a)(1)(A) or 1324(a)(1)(2) (Alien Smuggling or Harboring); (3) an offense under 8 U.S.C. 1326 (Illegal Reentry); (4) a federal, state, tribal, or local crime involving criminal street gang activity; (5) certain federal, state, tribal, or local offenses concerning the operation of a motor vehicle while under the influence of an intoxicant; (6) a federal, state, tribal, or local domestic violence offense, or who are found by an adjudicator to have engaged in acts of battery or extreme cruelty in a domestic context, even if no conviction resulted; and (7) certain misdemeanors under federal or state law for offenses related to false identification; the unlawful receipt of public benefits from a federal, state, tribal, or local entity; or the possession or trafficking of a controlled substance or controlled-substance paraphernalia.[2]

 

In the domestic violence context, a conviction would not be required.[3]

 

The agencies rely on the language in 8 U.S.C. § 1158(b)(2)(B)(ii) to assert that the Attorney General and Secretary of the Department of Homeland Security (DHS) have the authority to classify all felony offenses as particularly serious crimes.[4]  However, such a blanket rule is not consistent with 8 U.S.C. § 1158(b)(2)(B)(ii), which states that the Attorney General may designate “offenses that will be considered to be a crime described in clause (ii) or (iii) of subparagraph (A).”  8 U.S.C. §1158(b)(2)(A)(ii) specifies the bar to asylum is for a particularly serious crime wherein the non-citizen is a danger to the community.  Designating all felony convictions under all jurisdictions as bars to asylum is beyond what Congress intended and improperly removes all discretion and legal analysis from immigration judges and asylum officers.  Had Congress intended to bar all felony convictions, it would have specified that in the statute.

 

The agencies suggest that it has become too time intensive, difficult, and inefficient for immigration judges to make determinations about particularly serious crimes and aggravated felonies using the categorical approach required by the United States Supreme Court.[5]  However, it is the job of an immigration judge to employ his or her legal skills and analyze cases.  Moreover, the statute purposely does not limit the particularly serious crime bar to aggravated felonies.  Immigration Judges are in the best position to analyze whether a conviction, if not an aggravated felony, is nevertheless a particularly serious crime that should bar an individual from asylum.  Regulating away the immigration judge corps’ ability to exercise discretion does not render the process more efficient,[6] rather, it turns immigration judges into mindless adjudicators.  Moreover, the agencies cannot regulate out of existence Supreme Court precedent and international treaty obligations in order to promote efficiency.  The Supreme Court has held immigration judges to the categorical and modified categorical analysis when analyzing criminal convictions, as that is what the statute requires.[7]

 

Furthermore a conviction for a crime does not, without more, make one a present or future danger—which is why the Refugee Convention’s particularly serious crime bar, made part of United States law through 8 U.S.C. § 1158, should only properly apply if both (1) a migrant is convicted of a particularly serious crime and (2) a separate assessment shows that she is a present or future danger.[8]  By acceding to the 1967 Protocol Relating to the Status of Refugees,[9] which binds parties to the United Nations Convention Relating to the Status of Refugees,[10]the United States obligated itself to develop and interpret United States refugee law in a manner that complies with the Protocol’s principle of non-refoulement (the commitment not to return refugees to a country where they will face persecution on protected grounds), even where potential refugees have allegedly committed criminal offenses. As noted above, immigration judges and asylum officers already have over-broad authority to deny asylum based on allegations of criminal activity, which vastly exceeds the categories for exclusion and expulsion set out in the Convention. Instead of working towards greater congruence with the terms of the Convention, the Proposed Rules carve out categorical bars from protection that violate the language and spirit of the treaty.

 

Moreover, the Supreme Court in INS v. Cardoza-Fonseca found, “[i]f one thing is clear from the legislative history of the new definition of “refugee,” and indeed the entire 1980 Act, it is that one of Congress’ primary purposes was to bring United States refugee law into conformance with the 1967 United Nations Protocol Relating to the Status of Refugees.”[11]  The proposed regulations do the exact opposite.

 

The suggestion that the extensive bar is intended to increase efficiencies is belied by the agencies’ instructions that judges and asylum officers use a “reason to believe” standard to determine whether an offense is in furtherance of a criminal street gang and to “assess all reliable evidence in order to determine whether [a] conviction amounts to a domestic violence offense.”[12]  Further, in the domestic violence context, the proposed regulation would require the judges and asylum officers to consider whether non-adjudicated conduct “amounts to a covered act of battery or extreme cruelty.”[13]

 

The proposed regulations bar asylum to those convicted of a crime involving a criminal street gang, regardless of whether the conviction is a felony or misdemeanor.[14]  Moreover, this proposed bar does not even require that the statute of conviction include involvement in a street gang as an element.  Rather, the proposal is that the judges and asylum officers use a “reason to believe” standard to make the determination.[15] Federal courts have set forth the way in which to perform the categorical approach, whereas, the “reason to believe” standard is arbitrary.  Such an approach in the street gang context will lead to the unpredictable results the agencies suggest they are trying to avoid in other sections of the proposed regulations.

 

Further, the agencies propose to bar asylum under 8 U.S.C. § 1158(b)(2)(C) to “aliens who engaged in acts of battery and extreme cruelty in a domestic context in the United States, regardless of whether such conduct resulted in a criminal conviction.”[16]  As discussed above, these sweeping bars to asylum eliminate the discretionary authority given to immigration judges and asylum officers.   They also require an immigration judge to hold the equivalent of a criminal trial to determine if such activity has been “engaged in.”

 

Requiring immigration judges to make complex determinations regarding the nature and scope of a particular conviction or, in the case of the domestic violence bar, conduct, will lead to massive judicial inefficiencies and “mini-trials” within the asylum adjudication process. The scope of the “reliable evidence” available to immigration judges in asylum cases is potentially limitless; advocates on both sides would be obligated to present endless documents and testimony to prove their cases.  This would put an unsustainable burden on respondents, their counsel, and attorneys for DHS.  Asylum merits hearings, which tend to be three hours at most under current case completion requirements[17], would provide insufficient time for either side to fully present their cases and would make it impossible for immigration judges to complete cases under the current time constraints.

 

As the immigration courts contend with backlogs that now exceed one million cases, tasking judges and asylum officers with a highly nuanced, resource-intensive assessment of the connection of a conviction to gang activity and/or the domestic nature of alleged criminal conduct will prolong asylum cases and lead to disparate results that will give rise to an increase in appeals. The proposed regulations repeatedly cite increased efficiency as justification for many of the proposed changes. Yet requiring immigration judges to engage in mini trials to determine the applicability of categorical criminal bars, rather than relying on adjudications obtained through the criminal legal system, will dramatically decrease efficiency in the asylum adjudication process.

 

As discussed above, the Supreme Court has “long deemed undesirable” exactly the type of “post hoc investigation into the facts of predicate offenses” proposed by the agencies here.[18] Instead, the federal courts have repeatedly embraced the “categorical approach” to determine the immigration consequence(s) of a criminal offense, wherein the immigration judge relies on the statute of conviction as adjudicated by the criminal court system, without relitigating the nature or circumstances of the offense in immigration court[19]. As the Supreme Court has explained, this approach “promotes judicial and administrative efficiency by precluding the relitigation of past convictions in minitrials conducted long after the fact.”[20]

 

Furthermore, the Departments asks for comments on: (1) what should be considered a sufficient link between an asylum seeker’s underlying conviction and the gang related activity in order to trigger the application of the proposed bar, and (2) any other regulatory approaches to defining the type of gang-related activities that should render individuals ineligible for asylum. The premise of these questions is wrong: a vague “gang related” bar should not be introduced at all. The Immigration and Nationality Act and existing regulations already provide overly broad bars to asylum where criminal behavior by an asylum seeker causes concern by an immigration judge or asylum officer. Adding this additional, superfluous layer of complication risks erroneously excluding bona fide asylum seekers from protection without adding any useful adjudicatory tool to the process.      

 

Suggesting that the proposed regulations are aiming at efficiency while also requiring immigration judges to engage in excessive litigation is contradictory and makes it clear that the agencies are simply trying to eliminate asylum rather than increase efficiencies in adjudication.  This does not comport with the statute, constitution, or the United States’ international treaty obligations.  Finally, efficiencies will not result, as immigration judges will nevertheless be required to analyze the particularly serious crime bar for the withholding of removal analysis.[21]

 

In addition to creating new bars to asylum both by designating most crimes as “particularly serious crimes” pursuant to 8 U.S.C. § 1158(b)(2)(B)(ii), the agencies also render most crimes categorically exempt from a positive discretionary adjudication of asylum pursuant to 8 U.S.C. § 1158(b)(2)(C). This effort is unlawful. The agencies’ reliance on 8 U.S.C. § 1158(b)(2)(C) to render all felony convictions a bar to asylum takes away the discretionary authority granted to immigration judges and asylum officers when it comes to assessing the impact of a conviction on asylum eligibility.  Immigration judges and asylum officers have the opportunity to review all evidence, including the circumstances of the conviction during asylum interviews and hearings.  Such discretionary determinations are consistent with the statute and the intent of asylum, which is to protect the most vulnerable individuals in society from persecution.  “The Secretary of Homeland Security or the Attorney General may grant asylum to an alien who has applied for asylum in accordance with the requirements and procedures established by the Secretary of Homeland Security or the Attorney General under this section if the Secretary of Homeland Security or the Attorney General determines that such alien is a refugee within the meaning of section 1101(a)(42)(A) of this title.”[22]

 

Setting arbitrary large-scale blanket bars to a discretionary determination is inconsistent with the statute and the United States’ international treaty obligations.  The statute provides specific language about criminal bars, persecutor bars, and particularly serious crimes.[23]  Had Congress intended to remove the discretionary authority to grant relief to nearly all applicants with criminal convictions, it would have made that clear in the above referenced sections.  However, Congress clearly delineated bars to asylum and while it also provided the Attorney General the authority to clarify such bars, it in no way suggested the Attorney General could regulate away legal analysis of the bars or an immigration judge’s or asylum officer’s discretion.[24]  The proposed rules add sweeping categories of offenses that automatically remove an applicant from the consideration of discretion—a regulatory proposal that is ultra vires to the plain text of the statute.

 

The agencies also propose to bar under 8 U.S.C. 1158(b)(2)(B)(ii) and (b)(2)(C) anyone convicted of alien harboring under 8 U.S.C. § 1324(a)(1)(A), (2),[25] illegal reentry under 8 U.S.C. 1326,[26] any convicted of a second or subsequent offense for driving while intoxicated, impaired (DUI), or under the influence or a single such offense that resulted in death or serious bodily injury.[27] The agencies further propose to bar asylum under 8 U.S.C. § 1158(b)(2)(B)(ii) to all individuals convicted for domestic violence and child abuse, regardless of whether the conviction is a misdemeanor or felony.[28]  The proposed regulations do not render the adjudication process more efficient, as the language in the domestic violence and DUI bar is vague and requires a case by case assessment of the facts of the case.  The proposed regulations serve to eliminate discretion while increasing demands on immigration judges and asylum officers as well as the length and complexity of hearings and interviews.

 

Moreover, the proposed bar to asylum for multiple offenses for driving under the influence is problematic, particularly for individuals with offenses from states like New Jersey.  Unlike the majority of states, New Jersey does not criminalize the offense of driving while intoxicated (DWI).  In NJ, DWI is only a traffic offense.[29]  Individuals who have been arrested for a DWI have access to certain constitutional protections, such as being entitled to a public defender, and having the burden of proof of beyond a reasonable doubt.[30]  However, other constitutional protections are not available, namely the right to trial by jury.  This is true regardless of whether the DWI is a first, second, or third offense, and regardless of whether actual jail time may be imposed.[31]

 

As a practical matter. NJ DWI adjudications are conducted in municipal courts, in which judges, the prosecutors, and the public defenders are all part-time, township-appointed officials.  The dockets are often enormous, and, in many cases, defendants do not even seek time to obtain an attorney. They line up to meet with the prosecutor and enter into plea agreements that limit their amount of jail time and/or loss of license.  The defendants, with their attorneys if they have one, then appear before the judge and allocute to a brief set of facts and plead guilty; then pay their fines and leave.  The prosecutor does not normally even appear in court.

 

Thus, under the INA, a DWI offense under NJ law does not constitute a crime. In order to be found guilty of a crime, more is needed than just a formal judgment of guilt under a “reasonable doubt” standard, and some punishment was imposed.[32]  However, under the proposed regulations, such an offense could nevertheless bar an individual from asylum.

 

 

The agencies further propose to bar asylum under 8 U.S.C. § 1158(b)(2)(C) to individuals convicted of an expansive list of misdemeanor convictions, including simple possession of a controlled substance.[33] Including such minor offenses in the list of convictions that lead to a bar to asylum further demonstrate that the agencies are working to eliminate discretion from the adjudicatory process.  Furthermore, although Congress assigned to the Attorney General the authority to promulgate regulations further defining the particularly serious crime bar and other limits on asylum, had Congress intended to bar from asylum all applicants with criminal convictions, it would have provided such direction in the statute.[34]  The language of the statute shows that Congress intended to distinguish particularly serious crimes and aggravated felonies from other crimes, as it set forth specific language barring applicants with such offenses from asylum.[35] Congress easily could have indicated that all felonies or all criminal convictions constitute particularly serious crimes, but it did not.  Accordingly, the bar is in conflict with the statute.

 

Clarification on the Effect of Criminal Conviction

 

The agencies further propose to increase the burden on asylum applicants to prove that orders vacating convictions or modifying sentences were not entered to avoid immigration consequences or for rehabilitative purposes.[36]  They also create a rebuttable presumption against the validity of an order if such order was entered after the initiation of a removal proceeding or if the applicant moved for the order more than one year after the original order of sentencing.[37]  Furthermore, “the rule would provide that the alien must establish that the court issuing an order vacating or expunging a conviction or modifying a sentence had jurisdiction and authority to do so.”[38]  These new rules would increase, rather than decrease burdens on immigration judges and asylum officers.  It would require judges and asylum officers to look beyond a court order.  It would also require judges and asylum officers to make jurisdictional findings about state court orders on facially valid orders.  It is a long-standing legal principle that courts have jurisdiction to determine their own jurisdiction.[39]  If a state court has determined it had jurisdiction to issue an order, it is not the role of the immigration court or any other court to question that finding.

 

Removal of Regulations Regarding Reconsideration of Discretionary Denials of Asylum

 

“The proposed rule would remove the automatic review of a discretionary denial of an alien’s asylum application by removing and reserving paragraph (e) in 8 C.F.R. 208.16 and 1208.16.”[40]  The current regulatory section is consistent with the purpose of asylum—to protect the most vulnerable members of society, including family members of those fleeing persecution.  To remove it is inconsistent with the purpose of asylum and therefore inconsistent with the statute.  The agencies acknowledge that the purpose of the existing regulation is to promote family unity and reunification with spouses and children in third countries.[41]  However, the agencies suggest that the automatic reconsideration is unnecessary, as family unity is a discretionary factor that should be considered in the original adjudication.[42]  8 C.F.R. § 208.16(e) and 1208.16(e) provide additional procedural protections to vulnerable refuges who have been found eligible for withholding of removal.  While the existing regulations require reconsideration and a weighing of factors, including family reunification, they in no way require the immigration judge or asylum officer to grant asylum upon reconsideration.  The proposed regulation provides an extra layer of protection for vulnerable family members and should not be removed.

 

The agencies again suggest that efficiency is the reason behind eliminating this regulatory section.  However, as discussed above, there are multiple sections of this proposed regulation that render adjudications less, not more efficient.  The purpose of this proposed section is to further limit discretion and reduce access to asylum.

 

Conclusion

 

These proposed rules erode access to asylum in violation of Congressional intent, the United States Constitution, and international treaty violations.   The Round Table of Immigration Judges therefore urges the Department of Justice and DHS to withdraw, not implement this rule.

 

Very truly yours,

 

/s/

Stephen Abrams

Sarah Burr

Teofilo Chapa

Jeffrey Chase

George Chew

Bruce J. Einhorn

Noel Ferris

John Gossart

Paul Grussendorf

Miriam Hayward

Rebecca Jamil
Bill Joyce

Carol King
Elizabeth A. Lamb

Donn Livingston
Peggy McManus

Laura Ramirez

John Richardson

Lory Rosenberg

Susan Roy

Paul Schmidt

Ilyce Shugall

Denise Slavin

Andrea Sloan

Polly Webber

 

The Round Table of Former Immigration Judges

 

[1] 8 U.S.C. §§ 1158(b)(1)(A); 1229a

[2] 84 Fed. Reg. 69645 (December 19, 2019).

[3] Id.

[4] 84 Fed. Reg. 69645.

[5] Id. citing Taylor v. United States, 495 U.S. 575 (1990); Mathis v. United States, 136 S. Ct. 2243 (2016); Descamps v. United States, 133 S. Ct. 2276 (2013).

[6] 84 Fed. Reg 69646

[7] Taylor v. United States, 495 U.S. 575 (1990); Moncrieffe v. Holder, 569 U.S. 184, 186 (2013); Mathis v. United States, 136 S. Ct. 2243 (2016); Descamps v. United States, 133 S. Ct. 2276 (2013)

[8] See U.N. High Commissioner for Refugees, Criminal Justice and Immigration Bill: Briefing for the House of Commons at Second Reading ¶ 11 (July 2007), http://www.unhcr.org/en-us/576d237f7.pdf (the Refugee Convention’s particularly serious crime bar only applies if (1) a migrant is convicted of a particularly serious crime and (2) a separate assessment shows she is a “present or future danger.”).

[9] United Nations Protocol Relating to the Status of Refugees, Jan. 31, 1967, [1968] 19 U.S.T. 6223, T.I.A.S. No. 6577, 606 U.N.T.S. 268.

[10] Convention Relating to the Statute of Refugees, July 28, 1951, 140 U.N.T.S. 1954 (hereinafter

“Refugee Convention”).

[11] INS v. Cardoza-Fonseca, 480 U. S. 421, 437 (1987)

[12] 84 Fed. Reg. 69649, 69652

[13] 84 Fed. Reg 6952.

[14] Id.

[15] Id.

[16] Id.

[17] Memorandum, James R. McHenry III, Case Priorities and Immigration Court Performance Measures, January 17, 2018; see alsohttps://www.npr.org/2018/04/03/599158232/justice-department-rolls-out-quotas-for-immigration-judges (discussing memorandum requiring that Immigration Judges complete 700 cases per year).

[18] Moncrieffe v. Holder, 569 U.S. 184, 186 (2013).

 

[19] See Moncrieffe, 569 U.S. at 191 (“This categorical approach has a long pedigree in our Nation’s immigration law.”).

[20] Moncrieffe, 569 U.S. at 200-201.

[21] 8 U.S.C. § 1231(b)(3)(B)(ii)

[22] 8 U.S.C. §1158(b)(1)(A) (emphasis added)

[23] 8 U.S.C. § 1158(b)(2)(A), (B)

[24] 8 U.S.C. § 1158(b)(2)(C) (“The Attorney General may by regulation establish additional limitations and conditions, consistent with this section…”) (emphasis added)

[25] 84 Fed. Reg. 69647

[26] 84 Fed. Reg. 69648

[27] 84 Fed. Reg. 69650

[28] 84 Fed. Reg. 69651

[29] See NJSA § 39:4-50; see generally NJSA §§2C:1-98 (NJ criminal code, in which DWI does not appear)

[30] See, e.g. State v. Ebert, 871 A.2d 664 (App. Div. 2005)

[31] State v. Hamm, 121 N.J. 109, 577 A 2.d 1259 (1990)

[32] Castillo v. Att’y Gen., 729 F.3d 296 (3d Cir. 2013)

[33] 84 Fed. Reg. 69653

[34] 8 U.S.C. § 1158(b)(2)(B)(ii) (“The Attorney General may designate by regulation offenses that will be considered to be a crime described in clause (ii) or (iii) of subparagraph (A).”)

[35] 8 U.S.C. § 1158(b)(2)(A)(ii), (B)(i)

[36] 84 Fed. Reg. 69654

[37] 84 Fed. Reg. 69655

[38] 84 Fed. Reg. 69656

[39] United States v. United Mine Workers of America, 330 U.S. 258, 289 (1947)

[40] 84 Fed. Reg. 69656

[41] 84 Fed. Reg. 69656

[42] 84 Fed. Reg. 69657

 

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Many, many thanks to our wonderful Round Table colleague Judge Ilyce Shugall, who organized and coordinated our response!

 

PWS

01-21-20