🤯 IMMIGRATION BUNGLES CONTINUE FOR GARLAND’S DOJ! 

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?” Failure doesn’t seem to bother Garland. Maybe it should!  
PHOTO: Wikipedia Commons

Dan Kowalski reports from LexisNexis Immigration community on the latest screwups from the Article IIIs:

1) Burden of proof  (9th Cir.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2023/08/08/20-71977.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca9-on-burden-of-proof-fonseca-fonseca-v-garland

“Mario Fonseca-Fonseca, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) denial of his motion to reopen. Fonseca-Fonseca sought to reopen his immigration proceedings to apply for cancellation of removal. The BIA found that he failed to establish prima facie eligibility for cancellation of removal because he did not submit new evidence that would likely change the result in his case. The parties disagree on a threshold issue—whether the BIA applied the correct burden of proof. … Today, we clarify that prima facie eligibility for relief requires only a threshold showing of eligibility—a reasonable likelihood that the petitioner would prevail on the merits if the motion to reopen were granted. As the BIA previously explained, a noncitizen “demonstrates prima facie eligibility for relief where the evidence reveals a reasonable likelihood that the statutory requirements for relief have been satisfied.” In re S-V-, 22 I. & N. Dec. 1306, 1308 (B.I.A. 2000) (en banc). Because the BIA applied the wrong standard in denying Fonseca-Fonseca’s motion to reopen, we remand to the agency to adjudicate his motions under the proper standard.”

[Hats off to Andrew J. S. Newcomb and Elias Mendoza!]

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2) CIMT (11th Cir.)

https://media.ca11.uscourts.gov/opinions/pub/files/202112709.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca11-on-gmc-cimt-categorical-approach-usa-v-lopez

“This appeal requires us to decide how to apply the categorical approach to a conspiracy crime—a question of first impression in our Circuit. The United States seeks to revoke Lisette Lopez’s naturalization on the ground that she committed a crime of moral turpitude within five years of applying for citizenship and willfully concealed or misrepresented during the application process the fact that she had committed a crime. The district court granted judgment on the pleadings in favor of the government on the ground that Lopez had committed a crime of moral turpitude during the statutory period. Because the crime to which Lopez pleaded guilty—conspiring to launder money—did not categorically involve moral turpitude, we reverse and remand for further proceedings consistent with this decision.”

[Hats way off to the indefatigable Matthew Hoppock!  An audio recording of the oral argument is here.]

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3) Sue sponte reopening (5th Cir)

https://www.ca5.uscourts.gov/opinions/unpub/22/22-60336.0.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca1-on-bia-sua-sponte-reopening-authority-mancia-v-garland

“Mancia would like to have her removal proceedings reopened so that her request for suspension of deportation can be adjudicated according to the still-extant substantive NACARA standards. … She contends that nothing in NACARA limits the Board’s general discretionary power to reopen sua sponte a case in which it has rendered a decision. Indeed, that inherent discretion is codified. See 8 C.F.R. § 1003.2(a). So, she reasons, even though the special and more petitioner-friendly reopening avenue of section 203(c) closed to her in 1998, there is no reason why she cannot ask the Board to grant reopening under its discretionary authority, subject to all the limits that otherwise apply to that authority. … We agree with Mancia. The Board’s reliance on 8 C.F.R. § 1003.43(h) — requiring filing of section 203(c) reopening requests with the Immigration Court — is misplaced because that requirement only applies to “any motion to reopen filed pursuant to the special rules of section 309(g) of IIRIRA, as amended by section 203(c) of NACARA.” See 8 C.F.R. § 1003.43(h)(1). Mancia’s motion to reopen is no such motion. And nothing in NACARA requires those seeking relief under its provisions to do so by filing a section 203(c) motion. The government points to no statute, rule, or precedent to the contrary. And we see no reason why NACARA should be read as implicitly divesting the Board of its discretion to sua sponte reopen a proceeding. … For the foregoing reasons, we grant Mancia’s petition by vacating the Board’s rejection of her motion to reopen her removal proceedings pursuant to the Board’s sua sponte authority and remanding for further consideration of that motion consistent with this opinion.”

[Hats off to Margaret “Meg” Moran!]

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Unnecessary mistakes such as this, including ones like USA v. Lopez, above, which carry over into naturalization and other areas, could largely be avoided if Garland heeded expert advice and appointed a BIA of all expert judges. That would be those with universally respected comprehensive knowledge of immigration and human rights, an unswerving commitment to due process, and a demonstrated focus on fair results — NOT the current “any reason to deny, let’s just go with the DHS flow” attitude that infects all too much of the BIA’s decision-making these days.

There is also some irresponsible performance going on at OIL where they are defending flawed results that expert advocates would or should know are unjust and in many cases just flat out wrong or misguided! 

The above things are supposed to be “easy fixes” for Dem Administrations. Instead, the EOIR/DOJ continues to a large extent as it did under Trump — with serious adverse human, legal, and future consequences for American democracy.

If you can’t or won’t fix that which you control, what good are you? That’s the question that Dems should be asking about Garland’s indifferent performance on human rights, racial justice, and immigration — all inextricably related whether he and his lieutenants want to admit it or not!

🇺🇸 Due Process Forever!

PWS

08-09-23

🤯🤬 IT’S NOT “JUST THE 9TH CIRCUIT!” — A PANEL OF AMERICA’S MOST CONSERVATIVE CIRCUIT JUDGES (ALL GOP APPOINTEES) BLASTS GARLAND BIA’S SLOPPY, DEFECTIVE LEGAL WORK!🤮

Kangaroos
“Good enough for government work” might be the mantra for Garland’s EOIR — but, it doesn’t ‘cut it’ with Article III Courts, even the conservative, non-immigrant-friendly 5th Circuit!”
https://www.flickr.com/photos/rasputin243/
Creative Commons License

Dan Kowalski reports for LexisNexis Immigration Community:

CA5 CIMT Remand: Zamaro-Silverio v. Garland

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca5-cimt-remand-zamaro-silverio-v-garland#

https://www.ca5.uscourts.gov/opinions/pub/21/21-60324-CV0.pdf

“Francis Zamaro-Silverio petitions for review of the denial by the Board of Immigration Appeals (“BIA”) of cancellation of removal and voluntary departure. The BIA held that Zamaro-Silverio had been convicted of a crime involving moral turpitude (“CIMT”) and thus found her ineligible for those forms of discretionary relief. Because the BIA did not perform the proper analysis, we grant review, vacate, and remand for determination of whether Zamaro-Silverio’s conviction was for a CIMT. … The BIA found that Garcia-Maldonado controlled the outcome for Zamaro-Silverio. But in the wake of Mathis, that analysis is incorrect. The proper focus is now on the minimum conduct prohibited by the statute, not on Zamaro-Silverio’s particular actions. The minimum conduct that can trigger liability under ZamaroSilverio’s statute of conviction is the failure to remain at the scene of the accident and provide one’s name and other information. See Tex. Transp. Code § 550.021(a)(4). Thus, Zamaro-Silverio’s deportability hinges on whether failure to share information is a CIMT. Villegas-Sarabia, 874 F.3d at 877. Garcia-Maldonado does not reach this question, and, similarly, the BIA did not answer it. Given that “our ordinary rule is to remand to ‘giv[e] the BIA the opportunity to address the matter in the first instance in light of its own expertise,’” we go no further. Negusie, 555 U.S. at 517 (quoting Orlando Ventura, 537 U.S. at 17) (alteration in original). Therefore, the petition for review is GRANTED. We VACATE and REMAND to the BIA with instruction to determine whether the failure to share information under § 550.021(a)(4) is a CIMT.”

[Hats off to Stephen O’Connor!]

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

Congrats, Stephen!🌟

The Fifth Circuit precedent that the BIA failed to apply here, Villegas-Sarabia v. Sessions, 874 F.3d 871, 877 (5th Cir. 2017), was issued in 2017, before this respondent was even convicted. Yet, the BIA erroneously applied the pre-2017 version of Circuit law to deny her application. How is this competent adjudication from what is supposed to be a “specialized court” of expert adjudicators?

Remarkably, the BIA was even given a chance to correct its obvious error through a motion to reconsider filed while this petition for review was pending with the Circuit. Astoundingly, the BIA denied the motion to reconsider and “stuck with” a decision that violated Circuit precedent. What a way to (not) “run the railroad.”🚂

The Fifth Circuit panel in this case, Judge Jerry E. Smith (Reagan) (opinion), Judge Edith Brown Clement (Bush II), and Judge Cory T. Wilson (Trump) are all GOP appointees, among the most conservative Federal Judges in America — right out of “The Federalist Society Hall of Fame!” 

Even the most far-right GOP Federal Judges have a “bottom line” that the BIA can’t manage to remain above.

Somewhat ironically, Dem Attorney General Merrick Garland, once nominated for the Supremes by President Barack Obama, appears to have no such bottom line for the BIA’s sloppy, unprofessional “any reason to say no and deny” judging! Unfortunately, it’s symptomatic for a Dem Administration that just doesn’t care very much when it comes to due process, fundamental fairness, and justice for migrants! Garland’s tolerance for bad judging is also clogging the Circuit Courts with unnecessary litigation generated by the BIA’s substandard performance!

Alfred E. Neumann
Although he famously has reassigned most of the “high profile” work of the DOJ to various “Special Counsel,” curiously, Dem AG Merrick Garland, a former Article III Judge, doesn’t seem to have the time or the skills to fix the festering due process, bias, quality control, and professionalism problems in “his” wholly-owned “court” system — EOIR! So, the systemic injustice and chaos continue, unabated!
PHOTO: Wikipedia Commons

When Judge Jerry E. Smith and his colleagues have the integrity to stand up for the legal rights of a respondent, even one who has committed a crime, but a Democratic AG doesn’t have the courage to bring fair and professional judging and quality control to EOIR (after two years on the job), progressives and advocates ought to be asking what the heck they voted for in 2020? I doubt that it was this awful, entirely preventable, mess!

🇺🇸 Due Process Forever!

PWS

03-01-23

🇺🇸⚖️🗽👩🏻‍⚖️ ROUND TABLE WEIGHS IN @ SUPREMES ON UNCONSTITUTIONAL VAGUENESS OF “CRIME INVOLVING MORAL TURPITUDE!” — With Lots of Help From Our Friends @ Georgetown Law Appellate Courts Immersion Clinic! — Daye v. Garland

Knightess
Knightess of the Round Table — “Primed and ready to keep fighting dysfunction @ EOIR until due process, fundamental fairness, best practices, and equal justice for all prevail!”

Introduction and Summary of Argument

This brief presents amici’s practical perspective on why the Immigration and Nationality Act’s provision for removal based on a conviction for a “crime involving moral turpitude” is void for vagueness. Section 1227(a)(2)(A) combines the imprecision of the phrase “moral turpitude” with the indeterminacy of applying that phrase to a hypothetical set of facts

1 Counsel of record for all parties received notice of amici’s intent to file this brief at least ten days before its due date. The parties have consented to this filing. No counsel for a party authored this brief in whole or in part, and no person other than amici or their counsel made a monetary contribution to the preparation or submission of this brief.

 

2

under the categorical approach. The result is a provision so vague that adjudicators cannot agree on how to conduct the inquiry and frequently reach inconsistent results.

The Act charges immigration judges with determining which crimes involve “moral turpitude.” Though the statute provides no definition, in 1951, this Court held that the “language conveys sufficiently definite warning as to the proscribed conduct.” Jordan v. De George, 341 U.S. 223, 231-32 (1951). But time has disproved that understanding. The usual “consistency [that] can be expected to emerge with the accretion of case law,” S.E.R.L. v. Att’y Gen., 894 F.3d 535, 550 (3d Cir. 2018), has not materialized. Indeed, the typical sources of clarity—the Board of Immigration Appeals and the courts of appeals—have produced more questions than answers. Whose morals matter? How should judges discern what those morals are? What course should judges follow when moral views conflict? How do they account for changes in views over time? Immigration judges have no way to know. And the uncertainty that the statute’s vague words create left amici with no guide except their own moral intuitions.

To this ambiguity, add that, under the categorical approach, immigration judges do not evaluate the actual conduct engaged in by the noncitizen before them. Instead, they must assess the moral implications of a theoretical set of facts—the “least culpable” means of committing the crime in question. The hypothetical nature of this mode of analysis exacerbates the underlying vagueness of the statutory phrase “crime involving moral turpitude.”

3

Recently, this Court has struck down statutory provisions that suffered from analogous uncertainty, holding each unconstitutionally vague. See Johnson v. United States, 576 U.S. 591 (2015); Sessions v. Dimaya, 138 S. Ct. 1204 (2018); United States v. Davis, 139 S. Ct. 2319 (2019). Section 1227(a)(2)(A) should suffer the same fate.

The real-world effects of Section 1227(a)(2)(A)’s vagueness confirm this conclusion. Attempts to curtail the provision’s arbitrariness by articulating standards have failed. The Board and the courts of appeals have repeatedly but unsuccessfully tried to craft a workable set of rules for identifying which crimes involve moral turpitude. Their efforts have instead produced a series of non-dispositive, ad hoc tests that generate inconsistent and arbitrary results. Confusion abounds in immigration courts and in Article III courts alike, with widespread disagreement over whether a given crime involves moral turpitude. Among other unexplainable outcomes, the courts of appeals part ways on whether crimes such as making a terroristic threat or deceptively using a social security number involve moral turpitude. Amici were required to sort through this morass, unsure of which of the growing list of ad hoc tests applied or how to deal with the conflicting results. Their experiences confirm that the phrase “moral turpitude” is too vague to govern the “particularly severe ‘penalty’” of removal. Padilla v. Kentucky, 559 U.S. 356, 365 (2010) (quoting Fong Yue Ting v. United States, 149 U.S. 698, 740 (1893)).

For these reasons, this Court should grant review and reverse.

Read the complete brief here:

Daye Amicus Brief To File 11.14.22

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

For over 70 years, Federal Judges from the Supremes on down have turned a “blind eye” to our Constitution and substituted their subjective views on morality and immigrants for the rule of law. Our Round Table says it’s high time to stop! ⚔️🛡

Madeline Meth
Madeline Meth ESQUIRE
Deputy Director and Staff Attorney – Georgetown Law Appellate Courts Immersion Clinic
PHOTO: Linkedin — “She’s training tomorrow’s lawyers to fix today’s failing courts!“

Thanks again to the superstars Esthena L. Barlow, Brian Wolfman, Counsel of Record Madeline Meth, and the rest of the “Youth Brigade of the NDPA” over @ Georgetown Law!

🇺🇸 Due Process Forever!

PWS

11-16-22

🤯 “HOW TO SUCCEED IN BUILDING BACKLOG” — Latest BIA Miscue On Retroactivity in 7th Cir. Sure To Generate Re-openings, Remands, & Other Forms Of Backlog Enhancing, Due Process Denying “Aimless Docket Reshuffling!” — Garland’s Inexcusable Mis-Management Of EOIR Is Boiling Over Among Dem Base!

 

From Dan Kowalski @ LexisNexis Immigration Community:

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Daniel M. Kowalski

8 Nov 2022

CA7 on CIMT, Retroactivity: Zaragoza v. Garland

Zaragoza v. Garland

“Dulce Zaragoza, a native and citizen of Mexico and a lawful permanent resident of the United States, pleaded guilty to the Indiana offense of criminal neglect of a dependent after locking her six-year-old son in a closet for six hours. She was sentenced to one year in jail suspended to time served plus 30 days, with the remainder of the sentence to be served on probation. After completing her sentence, she traveled abroad and presented herself for admission when she returned. The Department of Homeland Security (“DHS”) found her inadmissible based on the neglect conviction, which the agency classified as a “crime involving moral turpitude.” 8 U.S.C. § 1182(a)(2)(A)(i)(I). She was placed in removal proceedings. Zaragoza fought removal on several grounds, with her arguments expanding as the proceedings progressed. Before the immigration judge, she argued that the Indiana neglect offense does not qualify as a crime involving moral turpitude. The judge disagreed and entered a removal order, and Zaragoza appealed to the Board of Immigration Appeals (“BIA” or “the Board”). In the meantime, she petitioned the state court to modify her sentence. Her purpose was to bring herself within the so-called “petty offense” exception to inadmissibility, which is available to first-time offenders sentenced to six months or less. Id. § 1182(a)(2)(A)(ii)(II). The state court obliged and reduced her one-year sentence to 179 days. With that order in hand, Zaragoza argued before the BIA that Indiana’s neglect offense is not a crime involving moral turpitude, and regardless, the petty-offense exception applies. The BIA rejected both arguments, agreeing with the immigration judge that the Indiana offense is categorically a crime involving moral turpitude, and further holding that the sentence-modification order was not effective to establish Zaragoza’s eligibility for the petty-offense exception. For the latter conclusion, the Board relied on a recent decision of the Attorney General declaring that state-court sentence modification orders are effective for immigration purposes only if based on a legal defect in the underlying criminal proceeding. Matter of Thomas & Thompson (“Thomas”), 27 I. & N. Dec. 674, 690 (Att’y Gen. 2019). Zaragoza sought reconsideration, this time adding two more arguments: (1) the phrase “crime involving moral turpitude” is unconstitutionally vague; and (2) the Attorney General’s decision in Thomas is impermissibly retroactive as applied to her. The BIA disagreed on both counts. Zaragoza petitioned for review in this court, reprising the entire array of arguments she presented to the Board. We agree with the BIA’s resolution of all issues but one: applying Thomas in Zaragoza’s case is an impermissibly retroactive application of a new rule. We therefore remand to the BIA for further proceedings consistent with this opinion.”

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Commentary from Kevin A. Gregg, ESQ:

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Kevin A. Gregg

• 1st

Partner at Kurzban Kurzban Tetzeli & Pratt P.A. & Host of Immigration Review Podcast

2d • Edited •

2 days ago

Crimmigration attorneys, get your motions ready.

At least in Chicago! Matter of Thomas and Thompson CANNOT be applied retroactively in the Seventh Circuit!

Sentence modifications/clarifications/European vacations obtained pre-T&T and that comply with Matter of Cota Vargas/Song/Estrada must be recognized for immigration purposes!

Also, when will A.G. Garland weigh in on Matter of Thomas and Thompson? The time is now.

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

When the BIA starts not with the correct legal concept that retroactivity is disfavored in the law, but rather with “how can we best help DHS Enforcement and/or curry favor and job security from our political ‘handlers’ at DOJ,” “bad things are going to happen.” And, they do, over and over!

There are plenty of well-qualified “practical scholars” out here who understand retroactivity in the immigration context and would get these basic questions right in the first instance without bothering the Courts of Appeals or generating disorder, inconsistency, and unnecessary backlog! Why hasn’t Garland recruited them to be the “New and Improved BIA” that would actually be driven by legal expertise, practical scholarship, due process, and fundamental fairness? The latter are qualities that EOIR and DOJ claims it seeks in Immigration Judges. But, it’s not the reality that practitioners too often actually face in todays dysfunctional, inefficient, and hopelessly backlogged EOIR. 

The public and those subject to substandard judging and often dehumanizing treatment by EOIR are suffering — amazingly, now more than ever! When will Garland do his job and reform his courts to conform to due process, fundamental fairness, best interpretations of law, and best practices? 

The latter desirable qualities, actually necessary for any legitimate judiciary, are certainly NOT descriptive of today’s broken EOIR! Garland and his lieutenants might consider themselves “above the fray!” 

But, my already over-stuffed e-mailbox is “lighting up” with EOIR horror stories from experienced, long-time practitioners who are questioning whether they can continue practicing in the hostile, lawless, “no due process,” “no customer service,” “no common sense,” “blame the victim” environment that Garland has allowed to mushroom, and sometimes even encouraged, at EOIR. 

I mentioned the term “Dedicated Docket” at an Executive Session of a major NGO recently. The anger and disgust that it provoked from those actually “doing the job” of fighting for justice in Garland’s broken system was palpable! 

Why is a Democratic Administration that is, despite beating expectations in the midterms, still hanging on by a thread, inflicting this type of disrespect, pain, and suffering on its own loyal supporters? How will this self-created legal, Constitutional, human rights disaster play out moving toward 2024!

“The EOIR HQ Tower” needs a complete shake-up and replacement of  those who have demonstrated their inability to get the job done with those who can! The latter are out here. But, the worse Garland lets his system get, the harder and most costly (dollars and lives) it will be to fix it!

🇺🇸 Due Process Forever!

PWS

11-11-22

🤯 GARLAND’S BIA & OIL SCREW UP 🔩 YET ANOTHER CIMT CASE, IN 3RD CIR! — Biden Administration’s Human Rights/Racial Justice Hypocrisy Continues To Take A Toll!

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

 

Dan Kowalski reports from LexisNexis Immigration community:

https://www2.ca3.uscourts.gov/opinarch/213100np.pdf

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/unpub-ca3-cimt-victory-king-v-atty-gen#

“King, a native and citizen of Jamaica, arrived in the United States in August 2016 pursuant to a visa, which later expired. He pleaded guilty in January 2020 to third-degree felony fleeing or eluding a police officer in violation of 75 Pa. Cons. Stat. § 3733(a). The Government initiated removal proceedings and charged King as removable for having overstayed his visa and for having been convicted of a crime involving moral turpitude (“CIMT”) within five years of entering the United States. See 8 U.S.C. §§ 1227(a)(1)(B), (a)(2)(A)(i). King later married a United States citizen and has applied to adjust to the status of lawful permanent resident. … The BIA … conclud[ed] that a Pennsylvania felony fleeing conviction is categorically a CIMT because it involves a culpable mental state of willfulness and applies to reprehensible conduct. … The plain language of the statute, coupled with the reasoning of Mahn and Ramirez-Contreras, persuades us that the Pennsylvania felony fleeing statute does not qualify as turpitudinous. While the failing to stop for a police officer while crossing a state line is conduct that may put another in danger, it does not necessarily do so. The agency therefore erred in its conclusion that King was convicted of a CIMT. For the foregoing reasons, we will grant the petition for review.”

[Hats off to William C. Menard!  And personally, I think this case should be published, because it highlights errors made by the IJ, the BIA and OIL.]

William C. Menard
William C. Menard, Esquire
Member
Norris McLaughlin
PHOTO: Firm

 

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

cell/text/Signal (512) 826-0323

@dkbib on Twitter

dan@cenizo.com

Free Daily Blog: www.bibdaily.com

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

It’s always helpful to have superstars 🌟 like William C. Menard of Norris McLaughlin on the side of the NDPA. Too bad they and other top flight lawyers “out here” who know and understand the plight of migrants and its inextricable ties to racial justice in America aren’t “running the show” at the DOJ like they should be! The American legal system would function much better if due process and best practices for migrants were a part of it (that is, “institutionalized”), rather than something that has to be achieved case-by-case at a great cost in resources and inconsistent justice!

I concur with my friend Dan that this case should be published as yet another public reminder and “citable” permanent record of the seemingly unending stream of errors, misguided arguments, and “worst practices” streaming out of Garland’s dysfunctional EOIR and OIL!

A Dem Administration inexplicably continues to subject migrants and their representatives to “4th class justice” from Garland’s broken EOIR. Ironically, at the same time, the Administration is begging advocates and NGOs to “empty their pockets and pound the streets” in behalf of their candidates. Talk about “being taken for granted!”

Go figure!

🇺🇸 Due Process Forever!

PWS

10-18-22

 

THE GIBSON REPORT:  05-09-22 — Compiled By Elizabeth Gibson, Esquire, Managing Attorney, National Immigrant Justice Center — HEADLINERS: 2d Cir. Reverses BIA On CIMT; Texas AG Targets Legal Assistance To Migrants; EOIR “Friend of Court” Memo; Lack Of Immigrants Hurting U.S. Economy — PLUS BONUS COVERAGE:  New Legal Aid Alliance Aims to Build a Model for Universal Representation for Detained Immigrants!

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

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Weekly Briefing

 

This briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The contents of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.

 

CONTENTS (jump to section)

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

 

PRACTICE ALERTS

New EOIR Friend of the Court Memo

EAD Automatic Extension Time Period—Temporary Increase to up to 540 Days

USCIS Changing Communication of Case Processing Data

 

NEWS

 

Mexico will take back more Cubans and Nicaraguans expelled by U.S.

WaPo: The deal is potentially significant because the Mexican government has more latitude to carry out deportation flights to Cuba and Nicaragua, nations whose frosty relations with Washington severely limit the United States’ ability to return their citizens.

 

New Legal Aid Alliance for Detained Immigrants Facing Deportation in the Chicago Immigration Court

MIDA: The Midwest Immigrant Defenders Alliance (MIDA) is a partnership between three nonprofit organizations — the National Immigrant Justice Center, The Resurrection Project, and The Immigration Project — and the Law Office of the Cook County Public Defender. The groups will lay the groundwork toward ensuring anyone who is detained by ICE and facing removal proceedings before the Chicago Immigration Court has access to legal representation. The program will reach immigrants detained in Wisconsin, Indiana, and Kentucky. While ICE no longer detains people in Illinois as the result of a state law enacted earlier this year, the groups will be representing Illinois residents who are being detained in other states.

 

Texas governor says the state may contest a Supreme Court ruling on migrant education

NPR: Abbott first made his remarks about the landmark education decision on Wednesday, in the aftermath of a leaked Supreme Court draft opinion that would overturn Roe v. Wade. Abbott said the court’s 1982 ruling had imposed an unfair burden on his state. “I think we will resurrect that case and challenge this issue again, because the expenses are extraordinary and the times are different” from when the decision came down, Abbott said in an interview with conservative radio host Joe Pagliarulo.

 

Texas AG Opens Probe Into State Bar’s Immigration Funding

Texas Attorney General Ken Paxton announced Friday that his office had launched an investigation into the charitable arm of the State Bar of Texas over allegations that the organization is providing funding to “entities that encourage, participate in and fund illegal immigration.”

 

DeSantis scrutinizes health care costs for the undocumented

Politico: The DeSantis administration on Thursday asked state hospitals to tally up the cost of providing medical care to undocumented immigrants. It’s part of an executive order Gov. Ron DeSantis signed in September, but just had his Agency for Health Care Administration start implementing.

 

For Second Straight Year, California Sees a Population Decline

NYT: California lost 117,552 residents last year, driven largely by the Covid death toll and a sharp drop in foreign immigration. This followed a slightly bigger decline in 2020, when the state lost 182,083 residents — the first time in more than a century that California got smaller.

 

The Things They Carried: Is the Border Patrol discarding asylum seekers’ documents?

Border Chron: In Arizona and Texas, border residents are noticing more and more personal belongings left behind, including confidential documents, along the U.S. side of the border wall.

 

Biden administration scrambles to deal with Russians trying to reach America

Politico: A senior administration official told POLITICO that the United States is exploring ways to increase Russians’ access to the U.S. refugee program, but the official declined to give details. At the same time, U.S. diplomats are effectively being warned to be extra careful in issuing tourist visas to Russians because they are more likely to overstay them due to the war, according to the April 26 cable obtained by POLITICO.

 

Massachusetts Senate OKs immigrant driver’s license bill

AP: The bill was approved 32-8 in the Democratic-controlled chamber. That’s enough to override a possible veto from Republican Gov. Charlie Baker, who has expressed opposition to similar efforts in the past.

 

Less immigrant labor in US contributing to price hikes

AP: The U.S. has, by some estimates, 2 million fewer immigrants than it would have if the pace had stayed the same, helping power a desperate scramble for workers in many sectors, from meatpacking to homebuilding, that is also contributing to supply shortages and price increases.

 

U.S. Homelessness Haunts Migrant Families Separated by Trump, Reunited by Biden

Reuters: Of the 200 families the task force has so far reunited, including Hernandez and her daughters, around three-quarters have struggled with housing insecurity, according to previously unreported data collected by two groups that aid them, Together & Free and Seneca Family of Agencies.

 

U.S. labor agency moves to thwart intimidation of immigrant workers

Reuters: The top lawyer at the agency that enforces U.S. labor laws on Monday directed staff to assure foreign workers that they will not face immigration-related consequences for filing complaints against employers or acting as witnesses in cases.

 

LITIGATION & AGENCY UPDATES

 

Court orders additional briefing in dispute over “remain in Mexico” policy

Howe: In a short order, the justices asked both sides in the dispute to weigh in on technical – but potentially dispositive – issues relating to the court’s power to hear the case.

 

Matter of German Santos, 28 I&N Dec. 552 (BIA 2022)

BIA: Any  fact  that  establishes  or  increases  the  permissible  range  of  punishment  for  a criminal offense is an “element” for purposes of the categorical approach, even if the term “element” is defined differently under State law… Title 35, section 780-113(a)(30) of the Pennsylvania Consolidated Statutes, which punishes possession with intent to deliver a controlled substance, is divisible with respect to the identity of the controlled substance possessed.

 

BIA Remand Relating To Matter Of A-B-

LexisNexis (quoting Geoffrey Hoffman):  This is a great decision as it affirms that A-B- (III) changed the law back to A-R-C-G- and warrants a remand back to the IJ for new proceedings. Importantly the Board notes that the remand is in light of the current case law of the BIA and the Fifth Circuit. Importantly, the Fifth Circuit’s Jaco v. Garland decision was not cited or relied on as impeding remand.

 

CA1 on Somalia, CAT: Ali v. Garland

LexisNexis: The critical question is whether this record compels the conclusion that Ali could not make the requisite showing with regard to the nature of the abuse to which he will be subjected, notwithstanding the IJ’s failure to have addressed evidence bearing on it. …  [W]e conclude that the prudent course is to vacate and remand for the BIA to address the aspects of the record that have not been given their proper consideration.

 

CA2 On CIMT: Jang V. Garland

LexisNexis: The agency found Jang ineligible for cancellation because of her state conviction for attempted second-degree money laundering, see N.Y. Penal L. § 470.15(1)(b)(ii)(A), which it deemed a “crime involving moral turpitude” (“CIMT”) under the Immigration and Nationality Act, see 8 U.S.C. § 1182(a)(2). We agree with Jang that, because her crime of conviction lacks the requisite scienter, it is not a CIMT.

 

4th Circ. Says Tardiness Isn’t A Failure To Appear

Law360: The Fourth Circuit has rebuked the Board of Immigration Appeals for rubber-stamping an asylum-seeker’s in absentia deportation order without addressing claims that a medical issue made him late to his immigration hearing, saying tardiness isn’t the same as not showing up.

 

Defective NTA Remand at CA5: Urbina-Urbina v. Garland

LexisNexis: Accordingly, we VACATE the three BIA decisions and REMAND the three cases for reconsideration in light of Rodriguez v. Garland, 15 F.4th 351 (5th Cir. 2021).

6th Circ. Affirms Cuban Man’s Meth Possession Guilty Plea

Law360: The Sixth Circuit affirmed Monday the guilty plea of a Cuban man who was arrested for possessing methamphetamine with intent to distribute and sentenced to 16 years in prison, rejecting his argument that the district court made a crucial mistake by failing to warn him that the plea made him deportable.

 

9th Circ. Says BIA Must Rethink Gay Nigerian’s Torture Claim

Law360: The Board of Immigration Appeals must reconsider its denial of a Nigerian man’s request for protection against torture after the Ninth Circuit ruled that the man had presented enough evidence to show he faced persecution for being gay.

 

Military Can Help On Immigration Enforcement, 9th Circ. Says

Law360: The Ninth Circuit said on Wednesday that the U.S. military can assist Border Patrol agents in capturing those suspected of entering the country illegally, rejecting an appeal by a Mexican national who was apprehended with the help of a Marine Corps surveillance unit.

 

Indian Citizen Sues After Losing Work Due To USCIS Delays

Law360: An Indian citizen has asked a D.C. federal court to compel the U.S. Citizenship and Immigration Services to resolve her employment authorization renewal application, saying its unlawful delay caused her to lose her job where she was working on a multimillion-dollar project.

 

County Called ICE On Immigrant For Traffic Issue, Suit Says

Law360: A Salvadoran immigrant has brought a $5 million lawsuit against a Maryland county, saying it illegally detained and transferred him to federal immigration enforcement over a minor traffic violation, exposing him to federal surveillance and the threat of deportation.

 

Judge Won’t Ax Florida Challenge To Biden Border Policy

Law360: A federal judge refused to toss Florida’s legal attack on the Biden administration’s border detention policies, saying Wednesday the courts could “unquestionably” review the federal government’s detention policies in a harsh rebuke to the administration’s claims of discretionary immigration authority.

 

USCIS Temporary Final Rule Increasing Automatic Extension Period for EADs

AILA: USCIS temporary final rule providing that the automatic extension period applicable to expiring EADs for certain renewal applicants who have filed Form I-765 will be increased from up to 180 days to up to 540 days from the expiration date stated on their EADs. (87 FR 26614, 5/4/22)

 

HHS Supplementary Request for Comment on Forms Related to Release of Unaccompanied Children

AILA: Department of Health and Human Services (HHS) supplementary request for public comment on revised versions of several forms related to the release of unaccompanied children from the custody of the Office of Refugee Resettlement (ORR). Comments are due 6/6/22. (87 FR 27159, 5/6/22)

 

RESOURCES

NIJC Resources

General Resources

 

EVENTS

NIJC EVENTS

 

GENERAL EVENTS

 

To sign up for additional NIJC newsletters, visit:  https://immigrantjustice.org/subscribe.

 

You now can change your email settings or search the archives using the Google Group. If you are receiving this briefing from a third party, you can visit the Google Group and request to be added.

 

Elizabeth Gibson (Pronouns: she/her/ella)

Managing Attorney for Capacity Building and Mentorship

National Immigrant Justice Center

A HEARTLAND ALLIANCE Program

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

www.immigrantjustice.org | Facebook | Twitter

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

Elizabeth writes:

Hi Judge Schmidt,

 

I just wanted to share the exciting news of the official launch of the Midwest Immigrant Defenders Alliance (MIDA)! With the end of Immigration detention in Illinois, ICE is sending Illinois residents to remote detention centers where there is little access to counsel. MIDA will ensure these immigrants are not left behind. MIDA is a partnership between three nonprofit organizations — the National Immigrant Justice Center, The Resurrection Project, and The Immigration Project — and the Law Office of the Cook County Public Defender, one of the largest public defender’s offices in the country.

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FOR IMMEDIATE RELEASE

Contacts:
Tara Tidwell Cullen, NIJC, (312) 833-2967, ttidwellcullen@heartlandalliance.org

 

New Legal Aid Alliance Aims to Build a Model for Universal Representation for Detained Immigrants Facing Deportation in the Chicago Immigration Court

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CHICAGO (May 9, 2022) — A group of Illinois immigration legal aid organizations today announced a new collaboration to expand access to legal representation for people in deportation proceedings who are detained by Immigration and Customs Enforcement (ICE).

The Midwest Immigrant Defenders Alliance (MIDA) is a partnership between three nonprofit organizations — the National Immigrant Justice Center, The Resurrection Project, and The Immigration Project — and the Law Office of the Cook County Public Defender. Through a one-year pilot project, the groups will lay the groundwork toward ensuring anyone who is detained by ICE and facing removal proceedings before the Chicago Immigration Court has access to legal representation. The program will reach immigrants detained in Wisconsin, Indiana, and Kentucky. While ICE no longer detains people in Illinois as the result of a state law enacted earlier this year, the groups will be representing Illinois residents who are being detained in other states.

“The National Immigrant Justice Center has represented detained people facing deportation for more than 30 years and we are thrilled for this opportunity to collaborate with organizations who have been longtime partners in defending justice to build a model that will ensure our community members have access to legal counsel when in the throes of the punitive immigration system,” said Ruben Loyo, associate director, Detention Project, at the National Immigrant Justice Center. “We see this as the natural next step in our state to support immigrant families, and an opportunity for Illinois to join the ranks of other states like New York and California whose universal representation programs have demonstrated how ensuring access to affordable legal counsel both upholds justice and helps keep families and communities strong and intact.”

“Too often immigrants from rural and urban communities in central and southern Illinois feel isolated and marginalized while they are facing the highest possible stakes — separation from their families and, often, possible persecution in a country they may have not seen in decades,” said Charlotte Alvarez, executive director of The Immigration Project. “MIDA is a natural expansion of our current advocacy and legal representation work and will allow us to ensure that individuals who were ripped from our downstate communities are able to obtain legal counsel to pursue every possible avenue available to them under the law in order to return to their family.”

During the pilot, one day each week, any detained and unrepresented individual who has an initial hearing before the Chicago Immigration Court and cannot afford private counsel will have the opportunity to consult with one of the collaborating organizations and receive free legal representation while they are detained — and potentially longer if they reside in Illinois. The collaborative also will provide training and mentorship programs to welcome new legal practitioners into the immigration field, an effort to increase capacity for nonprofit organizations to provide affordable immigration defense services in the Midwest. Vera Institute of Justice, a nongovernmental research group, will track the case outcomes from the pilot project to evaluate its impact on ensuring justice for people facing removal proceedings in Chicago.

“Everyone has the right to due process, including immigrants, and immigrants should also have the right to an attorney if they can’t afford one — especially those in detention that face many more barriers to a successful case outcome,” said Eréndira Rendón, vice president of immigrant justice at The Resurrection Project (TRP). “MIDA will increase capacity of community-based legal service providers like TRP to ensure detained immigrants have free, high-quality, and accessible legal services. The more organizations trained and available to support with these complex cases, the closer we are to securing universal representation for all.”

“The launch of MIDA proves that the national movement for universal representation is only getting stronger as people across the country continue to demand that no one should face deportation without a lawyer,” said Annie Chen, director of the Advancing Universal Representation initiative at the Vera Institute of Justice. “People facing deportation are our neighbors, friends, and loved ones. They deserve to fight their cases freely in their communities and with a lawyer by their side. As Illinois becomes the latest state to support a right to counsel for all, we are honored to work with MIDA to help them evaluate their program’s impact and are confident it can serve as a model for the state’s anticipated task force.”

Removal proceedings can have dire consequences for many immigrants, including permanent separation from U.S. citizen children, spouses, and parents, as well as the loss of integral community members. In some cases, deportation may result in someone being sent to a country where they face persecution or death. Yet individuals in these proceedings do not have access to government-appointed legal counsel like defendants in other parts of the U.S. legal system. A 2016 study found that detained immigrants are twice as likely to obtain relief than detained immigrants without counsel. In recent years, approximately 60 percent of detained individuals have been unrepresented in the Chicago court.

The partnership between nonprofit legal aid organizations and the Immigration Unit Pilot of the Cook County Public Defender, one of the largest public defender’s offices in the country, is in part intended to chip away at racial disparities that permeate the U.S. immigration system. Black, Indigenous, and other immigrants of color are disproportionately targeted for criminal arrest, which significantly affects an immigrant’s ability to remain in the United States. Working together, public defenders and immigration counsel have the best chance of ensuring immigrants’ rights are upheld throughout the course of their legal proceedings. Advocates also believe that universal representation models advance racial equity by mitigating biases during the initial triage of cases, when service providers usually must decide who is most deserving of services.

MIDA’s launch comes just weeks after the Illinois General Assembly passed the Right to Counsel in Immigration Proceedings Act (SB 3144), which will create a task force to provide recommendations for how the state can move toward providing legal representation for all Illinoisans facing deportation. The legislation was the latest in a series of state laws championed by Illinois communities and supported by the General Assembly and Governor J.B. Pritzker in recent years to defend immigrant Illinoisans against unjust deportation. After years of advocacy to close immigrant detention centers in Illinois, in January the Illinois Way Forward Act took effect to prevent ICE from detaining immigrants within the state. MIDA seeks to ensure Illinois residents continue to have access to counsel even as ICE increasingly detains immigrants in remote detention centers that often lack local legal resources.

###

Heartland Alliance’s National Immigrant Justice Center (NIJC) ensures human rights protections for low-income immigrants, refugees, and asylum seekers, with the goal of promoting access to justice, family integrity, and community safety. With offices in Chicago, Indiana, Washington, D.C., and San Diego, NIJC provides direct legal services to and advocates for these populations through impact litigation, public education, and policy reform. NIJC’s immigration legal services are organized into distinct projects, including a Detention Project that for years has served detained immigrants in the Midwest. Visit immigrantjustice.org and follow @NIJC on Twitter.

The Immigration Project (TIP) has secured access to justice alongside immigrant communities in downstate Illinois for over 25 years. With offices in the Bloomington-Normal and Champaign-Urbana areas, TIP maintains an extensive network of staff, partner organizations,  and specially trained community member volunteers to provide legal and social services to immigrant families residing in the 86 counties that comprise its service area. TIP works with and for immigrant communities in mutuality and interdependence to build a more just future for all. Visit www.immigrationproject.org.

The Resurrection Project (TRP) builds relationships and challenges individuals to act on their faith, values, and ideals to create healthier communities. Since its founding in 1990, TRP has increased the availability of services and expanded opportunities for Chicago’s low- and moderate-income Latinos. TRP is a trusted provider of culturally and linguistically inclusive services and helps enable families to fully participate and become invested in their communities. TRP serves families from all over the Chicago metropolitan region, though it has a deeply rooted presence in the predominantly Latino and immigrant communities of Pilsen, Little Village, and Back of the Yards.

Through the work of the Law Office of the Cook County Public Defender (CCPD) Immigration Unit Pilot, Cook County is the largest county in the nation to provide public defenders to serve the immigrant communities that do not have access to attorneys. In early 2022, Governor JB Pritzker signed Public Act 102-0410 into law and the Cook County Board of Commissioners passed a resolution in support of this initiative. This authorized the defender’s office to begin representing noncitizens in removal proceedings.

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Congrats to all the fantastic NDPA members involved in the MIDA! 

As readers of “Courtside” know and see illustrated here every week, the difference between life-saving and legally correct grants of asylum and other relief in Immigration Court and “arbitrary, capricious, railroaded” denials that are all too common at EOIR is often in the expert representation.

Despite “throwing an occasional bone” to the pro bono and “low bono” bars, it’s disturbingly clear that, like its predecessors, the Biden Administration has chosen to fashion, operate, and staff the Immigration Court system on the assumption that the majority of individuals can be rotely “moved” through the system and rejected without effectively asserting their full rights to due process and fundamental fairness. 

Effective representation does make a difference! An Administration and a Congress actually concerned about making the immigration justice system work would concentrate on moving toward universal representation rather than the plethora of money and time wasting “enforcement only/deterrence” gimmicks that have failed over the years and continue to do so every day! 

🇺🇸Due Process Forever!

PWS

05-11-22

 

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

 

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

Weekly Briefing

 

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

 

CONTENTS (click to jump to section)

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

 

PRACTICE ALERTS

 

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

 

TOP NEWS

 

Secretary Mayorkas Designates Ukraine for Temporary Protected Status for 18 Months

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

 

USCIS to Offer Deferred Action for Special Immigrant Juveniles

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

 

Courts give dueling orders on asylum limits at border

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

 

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

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

 

Delays Are Taking a Costly Toll on Frustrated Workers

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

 

Texas Border Op Expected To Grow Unless Feds Intervene

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

 

LITIGATION & AGENCY UPDATES

 

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

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

 

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

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

 

CA4 on Changed Country Conditions: Hernandez V. Garland

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

 

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

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

 

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

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

 

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

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

 

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

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

 

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

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

 

EOIR to Open Hyattsville and Laredo Immigration Courts

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

 

DHS Designates Sudan and Extends and Redesignates South Sudan for TPS

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

 

Lockbox Filing Location Updates

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

 

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

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

 

RESOURCES

 

 

EVENTS

 

 

Elizabeth Gibson (Pronouns: she/her/ella)

Managing Attorney for Capacity Building and Mentorship

National Immigrant Justice Center

A HEARTLAND ALLIANCE Program

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

www.immigrantjustice.org | Facebook | Twitter

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

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

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

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

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

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

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

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

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

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

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

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

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

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

🇺🇸 Due Process Forever!

PWS

03-08-22

 

 

 

 

 

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

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

Here’s the DC Circuit Decision:

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

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

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

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

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

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

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

. . . .

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

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

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

That order is weak because:

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

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

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

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

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

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

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

🇺🇸Due Process Forever!

PWS

03-05-22

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

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

 

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

Dan Kowalski reports for LexisNexis:

CA11 CIMT Remand: Hernandez Zarate v. Garland

Hernandez Zarate v. Garland

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

[Hats way off to Arnedo Silvano Valera!]

pastedGraphic.png

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

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

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

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

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

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

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

🇺🇸Due Process Forever!

PWS

02-19-22

⚖️4TH CIR. — CHIEF CIRCUIT JUDGE ROGER GREGORY (DISSENTING) CASTIGATES COLLEAGUES ON GRANTNG “CHEVRON DEFERENCE” TO BIA!

Chief Judge Roger Gregory
Chief Judge Roger Gregory
U.S. Court of Appeals
Fourth Circuit

Pugin v. Garland, 4th Cir., 12-01-21, published, 2-1 (Chief Judge Gregory, dissenting)

https://www.ca4.uscourts.gov/opinions/201363.P.pdf

GREGORY, Chief Judge, dissenting:

The majority concludes that because the phrase “in relation to obstruction of justice”

in § 1101(a)(43)(S) is ambiguous, the Board of Immigration Appeals’ (“BIA”) renewed interpretation of this provision is due Chevron deference. The majority also concludes that the BIA’s interpretation of “reasonably foreseeable”—in the context of before an investigation or proceeding—is reasonable. Because, in my view, the phrase is not ambiguous, the BIA is not due Chevron deference. However, even if § 1101(a)(43)(S) is ambiguous, the BIA’s conclusion that a formal nexus to an ongoing investigation is not required—based solely on the express exception in § 1512 and the catchall provision that it wrongly interpreted—is unreasonable. Thus, I disagree that Petitioner’s conviction of “Accessory After the Fact to a Felony,” under § 18.2–19 of the Virginia Code, is a categorical match with the generic offense of § 1101(a)(43)(S). For these reasons, I respectfully dissent.

. . . .

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

Of interest:

  • The “previous interpretation” discussed here, that the BIA subsequently “ditched” in favor of a more pro-DHS one, is Matter of Espinoza- Gonzalez, 22 I. & N. 889 (B.I.A. 1999), a “Schmidt Era” en banc decision written by Judge Ed Grant in which I joined.
  • 64 pages of arcane discussion and citations from three Circuit Court of Appeals’ Judges who cannot agree on the result shows the continuing disingenuous absurdity of a system that claims that “unrepresented” immigrants receive due process — many of these cases require not only lawyers, but great lawyers with expertise in immigration, criminal law, and statutory interpretation to achieve fair resolution;
  • Both the majority and the dissent “talk around” a major problem in the misapplication of “Chevron deference” to the BIA: In recent years, the BIA invariably adopts “any interpretation” offered by the DHS over better interpretations offered by respondents and their lawyers — this is a “rigged system” if there ever was one. For Article III Courts to “legitimize” the bogus application of Chevron by a non-expert tribunal that views itself as an extension of DHS Enforcement is a disgraceful dereliction of judicial duty!

🇺🇸Due Process Forever!

PWS

12-02-21

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

9th Circuit on Jim Route v. Merrick Garland– Elaborating on the term “Date of Admission” Regarding Removability Due to Crimes of Moral Turpitude

By: Sophia Barba

On May 6, 2021 the Ninth Circuit Court of Appeals denied a petition to review the BIA’s decision in Jim Route v. Merrick Garland. The case had been argued and submitted on April 13, 2021.

The 9th Circuit Court affirmed the decision by the Board of Immigration Appeals, which had concluded that Jim Route, the petitioner, had been:

“removable for having been convicted of a crime of moral turpitude (CIMT) within five years after the date of admission, 8 U.S.C. § 1227(a)(2)(A)(i)”

At issue was the interpretation of Route’s “date of admission.” Namely, if a noncitizen has multiple dates of admission, which one shall apply for purposes of deciding the date of admission when analyzing removability for committing a CIMT? The BIA had relied on its prior decision under Matter of Alyazji, 25 I. & N. Dec. 397 (BIA 2011) which stated that “date of admission,” in the context of § 1227(a)(2)(A)(i), refers to the “date of the admission by virtue of which the alien was present in the United States when he committed his crime.”

The Circuit Court had concluded that the Route case was eligible for
deference under Chevron, and had determined that under a Chevron analysis, that the BIA’s interpretation through Alyazji was a reasonable interpretation of the statute.

The petitioner’s argument rested primarily on the fact that the BIA’s reliance of the Alyazji interpretation ignored the Compact of Free Association governing the relationship between the United States and the Federated States of Micronesia (FSM). The panel rejected Route’s contention, explaining that the text of the Compact clearly subjects Micronesian citizens to the removability grounds of
§ 1227(a).

Jim Route, the petitioner, is a citizen of the Federated States of Micronesia. Route entered the United States in November 2005 as a nonimmigrant. He lived and worked in Hawai‘i. In 2015, Route returned to Micronesia for a vacation with his children; they stayed for less than two months. In June 2015, Route returned to the United States and was again admitted as a nonimmigrant. In June 2018, Route was convicted of unlawful imprisonment in the first degree, a class C felony in Hawai’i. Route was sentenced to 68 days’ imprisonment and four years’ probation.

For cultural context, the noncitizens from Micronesia make up a significant portion of the labor force in Hawai’i.  According to local advocates in Hawai’i, “There are an estimated 15,000 to 20,000 Micronesians in Hawaii, who began migrating here in bigger numbers in the 1990s in search of economic and educational opportunities.” (Crux)

Part of the Petitioner’s argument rested on the unique international agreement called the Compact of Free Association, which “allows citizens from the Federated States of Micronesia, the Republic of the Marshall Islands and the Republic of Palau to live and work freely in the United States in exchange for allowing the U.S. military to control strategic land and water areas in the region.” (Crux)

According to many people living in Hawai’i, Micronesians often face hardship being treated as outsiders and targeted by locals as being unwanted laborers who allegedly take away economic opportunities from them. Some Micronesians in Hawai’i have even expressed that they experience high incidences of violence and are more targeted by police. Two days after the Ninth Circuit published its opinion declining to review the BIA’s opinion, a 16-year old Micronesian boy was shot by police in Hawai’i after allegedly committing a spree of crimes in Honolulu. Hawai’ian social media was flooded with comments that touted anti-Micronesian sentiment, illuminated a microcosm of xenophobia that is similar to sentiments carried by many on the mainland. (KCTV Channel 5)

The anti-Micronesian sentiment in Hawai’i can be compared to the treatment of Latin-American noncitizens in the contiguous territories of the United States, or even the sentiments many Europeans carry against African or Middle-Eastern migrants. The sentiment that noncitizens who arrive for economic opportunity contribute to blight, crime, and siphon opportunity from others is an oft-told narrative no matter the region. 

You can find the full opinion and summary that was published by the 9th Circuit here

ROTTEN TOMATO 🍅🤮 THURSDAY:  9th, 5th, 8th Circuits Reject BIA’s Flawed Analyses!

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

Courtesy of Dan Kowalski @ LexisNexis Immigration Community:

  1. 9th Cir. Says BIA Screwed Up PSG Analysis 

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca9-on-asylum-el-salvador-social-group-acevedo-granados-v-garland

CA9 on Asylum, El Salvador, Social Group: Acevedo Granados v. Garland

Acevedo Granados v. Garland

“Petitioner Wilber Agustin Acevedo Granados (“Acevedo”), a native of El Salvador, petitions for review of the decision by the Board of Immigration Appeals (“BIA”) affirming an order of removal and the denial by the Immigration Judge (“IJ”) of Acevedo’s application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). Acevedo’s petition is based on his fear that, if returned to El Salvador, he would face persecution or torture on account of his membership in a particular social group, defined based on his intellectual disability. The BIA rejected Acevedo’s claims on the ground that the proposed group definition was not cognizable. The BIA held that Acevedo’s proposed social group was not sufficiently particular, finding that the terms “intellectual disability” and “erratic behavior” rendered the proposed group “amorphous, overbroad, diffuse,[and]subjective.” The BIA further determined that the group was not a “meaningful social unit, distinct from the larger population of mentally ill individuals” in El Salvador. We conclude that the agency misunderstood Acevedo’s proposed social group, and thus grant the petition for review with respect to the claims for asylum and withholding of removal. The BIA and IJ treated the term “intellectual disability” as if it were applied by a layperson. Instead, that term as used in Acevedo’s application referred to an explicit medical diagnosis with several specific characteristics. Recognized that way, the clinical term “intellectual disability” may satisfy the “particularity” and “social distinction” requirements necessary to qualify for asylum and withholding of removal. However, because the IJ did not recognize the proposed social group before her, we remand to the agency for fact-finding on an open record to determine if the group is cognizable.”

[Hats off to Prof. Evangeline Abriel and her Certified Law Students Keuren A. Parra Moreno (argued) and Jared Renteria (argued)!]

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2) 8th Cir. — BIA Goofs On “Aggravated Felony” Analysis

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca8-on-aggravated-felony-lopez-chavez-v-garland

CA8 on Aggravated Felony: h

Lopez-Chavez v. Garland

“In May 2017, an Immigration Judge (IJ) determined that Lopez-Chavez is ineligible for cancellation of removal because his 2006 federal conviction for illegal reentry in violation of 8 U.S.C. § 1326 qualifies as an aggravated felony. The Board of Immigration Appeals (BIA) affirmed the IJ’s ruling and dismissed Lopez-Chavez’s administrative appeal the following year. The question now before the court is whether Lopez-Chavez’s 2006 conviction qualifies as an aggravated felony under the INA, thus making Lopez-Chavez statutorily ineligible for cancellation of removal. We hold that it does not. … Because Lopez-Chavez’s 2003 Missouri marijuana conviction is not a categorical match for the corresponding federal offense in 8 U.S.C. § 1101(a)(43)(B), the 2006 conviction for illegal reentry under § 1326 does not qualify as an aggravated felony under § 1101(a)(43)(O). Accordingly, Lopez-Chavez is not statutorily ineligible for cancellation of removal. See 8 U.S.C. § 1229b. We grant the petition for review, vacate the BIA’s order, and remand for proceedings consistent with this opinion.”

[Hats off to Andrew K. Nietor!]

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3) 5th Cir. — BIA Blew “Categorical Approach”

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca5-on-categorical-approach-alejos-perez-v-garland

CA5 on Categorical Approach: Alejos-Perez v. Garland

Alejos-Perez v. Garland

“[T]o decide whether his 2018 conviction renders him removable, we need to determine whether we can parse MMB-Fubinaca from those other drugs; we decide that by determining whether Penalty Group 2-A is divisible. The government says it’s divisible, Alejos-Perez says not. … Because the government has not shown that the modified categorical approach is called for, we apply the categorical approach. … Because Penalty Group 2-A is not a categorical match, we must identify the appropriate result. … Once it’s clear that Penalty Group 2-A is not a categorical match to its federal counterpart, AlejosPerez “must also show a realistic probability . . . that the State would apply its statute to conduct that falls outside the generic definition of the crime” under federal law.  We are unable to resolve that issue, because the BIA didn’t address it, and we can “only affirm the BIA on the basis of its stated rationale for ordering an alien removed from the United States.” … We thus remand for consideration of whether Alejos-Perez has shown a realistic probability that Texas would prosecute conduct that falls outside the relevant federal statute.”

[Hats off to Manoj Govindaiah and Maria Osornio of Raices Texas!]

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Significantly, the 5th Circuit’s rejection of the BIA’s analysis was written by very conservative Circuit Judge Jerry Smith, a Reagan appointee. Judge Smith wrote the majority opinion upholding the legally questionable injunction against President Obama’s “DAPA Program” — something many scholars believe to have been a entirely legitimate exercise of prosecutorial discretion. (The case later was lamely affirmed w/o opinion by an evenly divided Supremes.)

Even conservative Federal Judges not known for sympathy to immigrants and their legal rights appear to have grown weary of the BIA’s consistently sloppy attempts to rule against foreign nationals, regardless of the merits. This is the second rejection by the normally reliably pro-Government 5th Circuit in the last several weeks!

Ironically, one (former) Federal Judge who appears not bothered by the BIA’s defective jurisprudence is the current Attorney General, Judge Garland. He’d better get himself a “tomato resistant”🍅 raincoat to wear at work. This is just the beginning. His reputation and credibility will diminish every day that he fails to replace the BIA with competent jurists who will give migrants the fair and impartial treatment that our Constitution demands, but the DOJ’s “captive court” constantly fails to deliver! 

And, leaving aside the legal ineptitude, there can be no excuse for the stunning level of dysfunction and incompetence in how one of the nation’s largest so-called “court” systems is administered by EOIR under DOJ. No tribunal in America issues more potential “death sentences” with less due process! Not exactly what Mies Van Der Rohe had in mind when he famously said “the less is more.” 

EYORE
“Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”

Poor “Belly-Up Eyore.” He was forlornly, and apparently vainly, hoping to be “put out to pasture” after Judge Garland took over the helm at DOJ. Such high expectations!

But, he is already exhausted again by all the continuing “calls to duty on Courtside” after just 22 days of Judge Garland’s “where’s Falls Church” approach to the ongoing EOIR disaster/travesty! Judge, here’s the key; just think like it were your children or grandchildren, actual human beings, being orbited into the abyss without much attention to the law, our Constitution, common sense, or human decency! Maybe starting each day with a briefing on each Article III case that was wrongly decided in your name by the BIA and a live reading of each outrageous media story about disorder in your Immigration Courts would help raise your consciousness? Maybe you should speak with a few of the “customers” of your “courts” that put public service last. Men, women, children, and their lawyers are being abused out there every day by EOIR and you are legally and morally responsible.

You can’t lead the fight for racial justice in America while running a bogus court system that denies and mocks it on a daily basis!

Judge Merrick Garland
Hon. Merrick B. Garland
Attorney General of The United States & Eyore’s Boss, Official White House Photo
Public Realm

🇺🇸👍🏼🗽Due Process Forever!

PWS

03-24-21

⚖️🗽NDPA CORNER: LAW YOU CAN USE: CLINIC PRESENTS THE UPDATED VERSION OF “BIA & CIRCUIT COURT CASE LAW CHART: ASSAULT RELATED CIMTs”— By Tanika Vigil

 

Tanika Vigil
Tanika Vigil, Esquire
Defending Vulnerable Populations Consulting Attorney
CLINIC
PHOTO:thebuenavistaproject.com

https://cliniclegal.org/file-download/download/public/6539

 

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Thanks Tanika and CLINIC. This should be a great resource for practitioners, litigators, and students.

My apologies for the formatting of the quote!

🇺🇸🗽⚖️Due Process Forever!

PWS

03-22-21