🤯 WRONG AGAIN! — BIA Flubs Divisibility In 3rd Cir. — Pesikan v. Atty. Gen.

Dan Kowalski reports for LexisNexis Immigration Community:

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca3-on-divisibility-pesikan-v-atty-gen

https://www2.ca3.uscourts.gov/opinarch/203307p.pdf

“Petitioner Srecko Pesikan argues that the Board of Immigration Appeals (“BIA”) erred in concluding that his 2018 Pennsylvania conviction for driving under the influence (“DUI”) of marijuana constituted an offense involving a “controlled substance,” as defined in the federal Controlled Substances Act (“CSA”), thereby rendering him removable under the Immigration and Nationality Act of 1952, 8 U.S.C. § 1227(a) (“INA”). We agree and will grant his petition for review. … In sum, because the identity of the specific controlled substance is not an element of the Pennsylvania DUI statute, the state statute of conviction is indivisible and cannot serve as the basis for Pesikan’s removal under the INA. … For the foregoing reasons, we will grant Pesikan’s Petition for Review in case number 21-1262 and will reverse the order for removal.”

[Hats way off to appointed pro bono counsel Bruce MerensteinArleigh Helfer and Stephen Fogdall (argued)!  Here is a link to the audio of the oral argument.]

Stephen A. Fogdall, Esquire
Stephen A. Fogdall, Esquire

– Stephen A. Fogdall

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

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

These are important cases with high stakes! They deserve expert analysis from expert judges. 

Eliminating unnecessary Circuit reversals and remands like this would also help address the backlog-building, due-process-denying phenomenon of “Aimless Docket Reshuffling” at EOIR. Avoidable mistakes at the “retail level” are systemically costly to our justice system in more ways than one!

And, remember, that for every EOIR mistake that gets “caught” by the Article IIIs, dozens of these injustices probably go uncorrected! Circuit review is a luxury that isn’t available to most individuals who lose at the BIA level. Even here, Mr. Pesikan would have had no chance at the Circuit except for court-appointed pro bono counsel Stephen A. Fogdall and his team at Dillworth & Paxon, LLP, another luxury unavailable to litigants at the EOIR level.

Moreover, even when Circuit review does take place, the inappropriately deferential standards established by Congress allow (or even require) some Circuit panels to merely sweep glaring injustices under the rug without grappling with the overall constitutional implications of this shoddy, due–process-denying  system. Why on earth would “deference” be given or review restricted over the “gang that can’t shoot straight” at EOIR?”

Gang that couldn't shoot straight
Would you give “deference” to these guys?
Theatrical poster from Wikipedia

Congress and the Article III Courts appear unlikely to face up to the need for constitutionally-required reforms at EOIR in the near future. Therefore, as I pointed out yesterday, it’s critical that NDPA experts apply for judicial positions at EOIR to change the system for the better and save lives from “within.” https://immigrationcourtside.com/2023/09/27/🇺🇸⚖%EF%B8%8F🗽🧑⚖%EF%B8%8F👨🏾⚖%EF%B8%8F-attention-ndpa-better-courts-mean-a-better-america-fr/.

🇺🇸 Due Process Forever!

PWS

09-25-23

⚖️🛡⚔️ROUND TABLE AMICUS BRIEF IN SUPREMES’ SANTOS-ZACARIA V. GARLAND (EXHAUSTION BEFORE EOIR) GETS “PLAY” ON “STRICT SCRUTINY PODCAST” WITH PROFESSORS LEAH LITMAN (MICHIGAN LAW) & KATE SHAW (CARDOZO LAW)!

Professor Kate ShawCardozo Law PHOTO: Cardozo Law Website
Professor Kate Shaw
Cardozo Law
PHOTO: Cardozo Law Website
Professor Leah Litman
Professor Leah Litman
University of Michigan Law
PHOTO: Michigan Law Website

Kate and Leah were live from the University of Pennsylvania in Strict Scrutiny’s first live show of 2023! Penn Law Professor Jasmine E. Harris joined the hosts to recap arguments in a case that could impact disability rights. Kate and Leah recap two other arguments, in a case about immigration law and another about the ability to criminally prosecute corporations owned by foreign states. Plus, a major update about the Supreme Court’s “investigation” into who leaked the draft opinion of Dobbs last spring. And Temple University Law School Dean Rachel Rebouche joined the hosts to talk about some concerning updates in abortion access– an unfortunately commemoration of the 50th  anniversary of Roe v. Wade.
• Here’s the report summarizing the Supreme Court’s investigation into who leaked the Dobbs opinion. (TLDR: they still don’t know who did it, but they tried their best? Former United States Secretary of Homeland Security Michael Chertoff said so.)

To hear the comments on our amicus brief “tune in” at 14:00 (lots of other “interesting commentary” on other cases if you listen to the entire program):

https://podcasts.apple.com/us/podcast/strict-scrutiny/id1469168641?i=1000596018641

Here’s a copy of our amicus brief drafted by our pro bono heroes at Perkins Coie LLC:

Round Table Amicus Santos Zacaria v. Garland

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

“With the highest possible human stakes,” amen, Kate! I get that, you get that, those stuck in the “purgatory of EOIR” get that! But, sadly, Biden, Harris, Garland, Mayorkas, their too often bumbling bureaucrats, and a whole bunch of Federal Judges at all levels DON’T “get” the dire human consequences and the practical impact of many of their decisions. That’s particularly true of those that give EOIR a “pass” on bad interpretations, opaque procedures, and a “super-user-unfriendly” forum that all too often defies logic and common sense!  If they did “get it,” EOIR wouldn’t be the dystopian, likely unconstitutional, and life-threatening mess that it is today!

All you have to do is imagine yourself to be an unrepresented individual, who doesn’t speak English, on trial for your life in this messed up and unaccountable “court” system that holds millions of lives in its fumbling hands! Seems like a “modest ask” for those who have risen to the Federal Bench. But, for many, it’s a “bridge too far!” Let’s just hope that the Court does the “right thing” here!

Thanks to Round Table Maven Judge “Sir Jeffrey” Chase for spotting this!

🇺🇸 Due Process Forever!

PWS

01-26-22

THE GIBSON REPORT — 10-10-22 — Compiled By Elizabeth Gibson, Managing Attorney, NIJC — AMONG HEADLINERS: Ignoring Kids At Risk; Biden’s Marihuana Pardon Unlikely To Help Many Migrants; Garland’s DOJ On Wrong Side Of IJ “Muzzling” Suit!

 

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

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)

  • NEWS
  • LITIGATION & AGENCY UPDATES
  • RESOURCES
  • EVENTS

NEWS

 

Appeals Court Says DACA Is Illegal but Keeps Program Alive for Now

NYT: The decision from the three-judge panel on the U.S. Court of Appeals for the Fifth Circuit — one of the country’s most conservative federal appellate courts — affirmed a 2021 lower court decision. The Biden administration will need to continue its legal fight to enroll new applicants in the program, called the Deferred Action for Childhood Arrivals, or DACA.

 

Biden’s marijuana pardon not likely to help many immigrants with deportation cases

SD Union-Trib: Simple marijuana possession is usually charged at the state rather than federal level, so if governors follow Biden’s lead, there could be a wider impact on immigration court cases…Biden’s Thursday proclamation also explicitly says that undocumented noncitizens are not eligible for the pardon.

 

New York Faces Record Homelessness as Mayor Declares Migrant Emergency

NYT: Mayor Eric Adams stepped up calls for state and federal aid as the number of people in city shelters topped 61,000. See also Democrat-led Texas city steps up migrant busing to New York, outpacing Republican effort; Documents: Florida migrant transport planning began in July.

 

“A Failure on All Our Parts.” Thousands of Immigrant Children Wait in Government Shelters.

ProPublica: The public has largely stopped paying attention to what’s happening inside shelters and other facilities that house immigrant children since President Donald Trump left office, and particularly since the end of his administration’s zero tolerance policy, which separated families at the southern border.

 

Migrants from three countries are driving the spike in encounters at the southern border, swamping a backlogged immigration system

CNN: Migrants from just three countries – Venezuela, Nicaragua and Cuba – made up about 56,000 of those encounters, or about 28 percent, federal data shows. See also US immigration: Why Indians are fleeing halfway around the world.

 

Blinken Announces Aid for Migrants, Refugees

VOA: Shortly before attending OAS ministerial talks on the perplexing question of migration in the western hemisphere, Blinken told reporters of “new humanitarian and bilateral and regional assistance” to the tune of $240 million. See also United States fell far short of refugee goal last fiscal year

 

Critic of Biden border policy in line to oversee DHS budget

Roll Call: With Cuellar in line to be the top Democrat in the next Congress on the House Homeland Security Appropriations Subcommittee, which oversees the Immigration and Customs Enforcement and Customs and Border Protection budgets, some Democrats and advocacy groups are growing concerned.

 

Border agents fired fatal shots after migrant grabbed weapon, FBI says

WaPo: A Mexican man who was shot fatally inside a Border Patrol station in Texas this week had grabbed an “edged weapon” off a desk inside the facility and continued to approach U.S. agents after they attempted to stop him with a Taser, the FBI said in a statement late Wednesday.

 

2 Russians Seek Asylum in US After Reaching Remote Alaska Island

VOA: Two Russians who said they fled the country to avoid military service have requested asylum in the U.S. after landing in a small boat on a remote Alaska island in the Bering Sea, U.S. Sen. Lisa Murkowski’s office said Thursday.

 

Undaunted by DeSantis, immigrant workers are heading to Florida to help with hurricane cleanup

CNN: Word that immigrants are now coming to help clean up some of his state’s most storm-ravaged communities hasn’t softened the governor’s stance.

 

LITIGATION & AGENCY UPDATES

 

High Court Won’t Review ‘Unfair’ Deadline For Deported Man

Law360: The U.S. Supreme Court on Monday turned away a deported Salvadoran man’s bid to look into an allegedly “unfairly” crafted deadline for filing deportation order reconsideration requests, ending his decades-long hope of returning to the U.S.

 

5th Circ. Affirms Toss Of DACA, Asks For Review Of Final Rule

Law360: The Fifth Circuit on Wednesday affirmed a Texas judge’s ruling that vacated the Obama administration’s Deferred Action for Childhood Arrivals program, which has protected some young immigrants from deportation, and barred new applicants, but asked the lower court to review the Biden administration’s recent final rule on the DACA program.

 

CA5 On Evidence, CAT, Cameroon: Ndifon V. Garland

LexisNexis: Ndifon claims the BIA failed to consider country conditions evidence when separately analyzing his CAT claim. We agree.

 

CA9 on Consular Reviewability: Muñoz v. Dept. of State

LexisNexis: Because we conclude that the government failed to provide the constitutionally required notice within a reasonable time period following the denial of Asencio-Cordero’s visa application, the government was not entitled to summary judgment based on the doctrine of consular nonreviewability.

 

Matter Of Bador, 28 I&N Dec. 638 (BIA 2022)

LexisNexis: A fraud waiver under section 237(a)(1)(H) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1227(a)(1)(H) (2018), does not waive a respondent’s removability under section 237(a)(1)(D)(i) of the INA, 8 U.S.C. § 1227(a)(1)(D)(i), where conditional permanent residence was terminated for failure to file a joint petition

 

Minn. Judge Ends Migrant Detention Suit, After $80K Deal

Law360: A Minnesota federal judge ended an American Civil Liberties Union-backed suit alleging that U.S. Customs and Border Protection assaulted and degraded two teenagers in its custody, after the agency agreed to pay the girls $80,000 to resolve the claims.

 

Fla. Seeks Trial Over Alleged US Policy Not To Detain Migrants

Law360: Florida pushed for a trial to resolve its contention that the Biden administration has a policy of releasing immigrants subject to detention, but asked a federal judge to first declare that the state has standing to challenge the alleged policy.

 

Feds Want Immigration Judges’ ‘Muzzled’ Speech Suit Axed

Law360: The head of a U.S. Department of Justice office on Friday asked a Virginia federal judge to nix a suit filed by an immigration judges association claiming they are “muzzled” by a policy that they say bars them from discussing their personal views on immigration, contending that a new policy encourages speech and simply requires supervisory approval.

 

USCIS 30-Day Notice and Request for Comment on USCIS Online Account Access

AILA: USCIS 30-day notice and request for comment on USCIS’s Online Account Access system, formerly called Identity and Credential Access Management (ICAM). Comments are due 11/7/22.

 

CBP Announces CDC Screening of Individuals with Travel Nexus to Republic of Uganda

AILA: Following an outbreak of Ebola in the Republic of Uganda, the CDC announced enhanced public health screening for flights departing after 11:59 pm (ET) on 10/10/22, for flights carrying travelers with nexus to Uganda. Said flights will be funneled through JFK, EWR, IAD, ATL, and ORD.

 

RESOURCES

 

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. If you receive an error, make sure you click request access.

 

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

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

Given the disgraceful mess @ EOIR, it’s understandable that Garland & Co. fear IJ’s speaking out in public. It’s just not a justifiable position, particularly for a Democratic Administration.

🇺🇸Due Process Forever!

PWS

10-11-22

🎭 HON. JEFFREY S. CHASE ASKS: CAN LIFE IMITATE ART IMITATING LIFE?  — Lessons From The Play/Movie “The Courtroom!”

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/2022/8/16/can-keathley-be-applied-more-broadly

JEFFREY S. CHASE | OPINIONS/ANALYSIS ON IMMIGRATION LAW

Blog Archive Press and Interviews Calendar Contact

Can Keathley Be Applied More Broadly?

The Off-Broadway play The Courtroom is now a film; it recently screened as part of the Tribeca Film Festival.  I think it is excellent, and would highly recommend that all those interested in immigration law see it.  As you might know, the film depicts the actual immigration court case that culminated on appeal in the Seventh Circuit’s 2012 precedent decision in Keathley v. Holder.1

While there is so much artistic talent to applaud among the film’s cast (especially the excellent Kristin Villanueva as the respondent, Elizabeth Keathley), director Lee Sunday Evans, and Arian Moayed (who created the script from actual court transcripts), as a lawyer and former judge, I was particularly impressed with the legal theory employed in the case by the real-life attorney Richard Hanus.

To summarize the facts of the case, Ms. Keathley went to the Illinois Department of Motor Vehicles to obtain a state identification card while in non-immigrant status, having been admitted to the U.S. on a fiancee visa.  In processing her application, the DMV official asked (as he was required to do) whether she wanted to be an organ donor, and more consequentially, whether she wanted to register to vote.  Having just shown the DMV official her non-U.S. passport and non-immigrant visa, Ms. Keathley took the question to mean that she was eligible to vote.  And an Illinois law designed to deter discrimination in voter registration precluded the DMV official from offering her further guidance to dispel that belief.  When at her adjustment of status interview with DHS, Ms. Keathley answered honestly that she had voted in the 2006 midterm election, she soon found herself in removal proceedings before an immigration judge.

Furthermore, her situation appeared hopeless.  Section 237(a)(6)(A) of the Immigration & Nationality Act requires only a finding that a noncitizen voted in violation of any Federal, State, or local statute in order to make the individual deportable; it does not require a criminal conviction for having done so.  Ms. Keathley readily admitted that she had voted.  And of course, a federal statute, namely, 18 U.S.C. section 611, prohibits non-citizens from doing so.

But Ms. Keathley’s attorney argued that she was not in fact deportable, because there was a legal defense for her action, called “entrapment by estoppel.”  As Judge Frank Easterbrook, writing the Seventh Circuit’s decision in the case, explained, criminal defenses are relevant in removal proceedings.  He provided the example of a noncitizen who kills another in self-defense, raising the question of whether that person would then be deportable for having committed the crime of murder.  While Judge Easterbrook explained that the statute might define murder as the intentional killing of a human being, a person who kills in self defense is not guilty of murder, and would thus not be deportable.2  The same logic applies to voting.

Judge Easterbrook further explained that while its name is confusing, the defense of entrapment by estoppel can be better described as “official authorization.”  In his oral argument, Hanus offered the analogy of a police officer waving a driver through a red light; because the officer authorized the action, the driver could not be ticketed for their action.

Judge Easterbrook provided another example: if a Secret Service agent authorizes someone to distribute counterfeit currency as part of a criminal investigation, the person doing so cannot then be criminally charged for such action.

But the judge also emphasized an important requirement for the defense: the person authorizing the action must have the authority to do so.  As Judge Easterbrook pointed out, a Secret Service agent can authorize someone to pass counterfeit bills, but (choosing a seemingly random example) a high school principal, in spite of being a government employee, would have no authority over who is qualified to vote.

He continued that in Ms. Keathley’s case, while Department of Motor Vehicle officials lack the authority to specifically register non-citizens to vote, they are authorized to register people for federal elections.  In the words of Judge Easterbrook, “The power to register someone supposes some authority to ascertain whether legal qualifications have been met,” meaning that such officials “thus are entitled to speak for the government” on the subject of eligibility to vote.3

The Seventh Circuit remanded the matter, advising that “If the IJ does credit Keathley’s statements about what occurred, the Department of Homeland Security should give serious consideration to withdrawing its proposal that she be declared inadmissible and be removed from the United States. A person who behaves with scrupulous honesty only to be misled by a state official should be as welcome in this country in 2012 as she was when she entered in 2004.”4

On remand, Immigration Judge Craig Zerbe determined that the charge of removability was not sustained in light of the Seventh Circuit’s decision; Ms. Keathley’s application for adjustment of status was thus granted.  As those who saw the movie or play know, she has since become a U.S. citizen.

I hold Richard Hanus in the highest regard, and find his arguments in litigating this case to be brilliant.  I’ve also wondered if his argument might have broader applications.

With that thought in mind, I have heard of a disturbing position being taken by DHS in response to the increasing number of states legalizing marijuana, which presently remains a controlled substance under federal law.

The issue is that a noncitizen seeking to adjust their status to that of a lawful permanent resident must demonstrate that they are not inadmissible to the U.S.  (It was in this same posture that Ms. Keathley was also found inadmissible at her adjustment of status interview).   But section 212(a)(2)(C)(i) of the Act makes inadmissible not only any noncitizen who “is or has been an illicit trafficker in any controlled substance,” but also one who “is or has been a knowing aider, abettor, assister, conspirator, or colluder with others in the illicit trafficking in any such controlled or listed substance…or endeavored to do so.”

Like the voting provision, this exclusion ground does not require a criminal conviction.  But while whether or not someone voted is a clearcut question, what constitutes aiding, abetting, assisting, or colluding with marijuana-related businesses that are operating legally at the state level is far less obvious.

For example, DHS has taken the position that those providing accounting and payroll services to marijuana-related businesses constitute aiding or assisting with drug trafficking within the meaning of the Act.  It’s not clear how far that theory can be extended.  What about those providing banking services?  Or the landlords renting to such businesses? Or those providing them with phones, electricity, or internet service?  And in at least one case, USCIS has applied the trafficking bar to an individual who maintained video surveillance equipment in a marijuana collective.5

My question is whether the “entrapment by estoppel” defense successfully raised in Keathley could also apply to someone such as an accountant who performed services typical of their profession for a client who happened to be in the marijuana business, and who is then charged by DHS of aiding or assisting in marijuana trafficking.  I’m posing this and all that follows as thoughts for discussion; they certainly are not an authoritative opinion.  I am curious to hear what readers think.

First, in terms of “official authorization,” legalizing states have set up agencies to closely regulate the marijuana industry. In Colorado, even non-employees providing support services that require them to be unescorted in what the state has termed “limited access areas” within marijuana-related businesses must be issued a license by the state’s Marijuana Enforcement Division.6  Would the application process and  issuance of such authorization by the relevant state agency be sufficient to trigger an entrapment by estoppel defense?

There is a question of whether a state agency can provide authorization that would carry any weight at federal level.  As noted above, the DMV official in Keathley, although working for the state, had the authority to register individuals to vote in federal as well as state elections; in the view of the Seventh Circuit, that authority carried with it an entitlement to speak to issues of eligibility.

I would here point to an August 29, 2013 memo to all U.S. Attorneys from then Deputy Attorney General James M. Cole, titled “Guidance Regarding Marijuana Enforcement.”  Importantly, this memo refers to a “traditional joint federal-state approach to narcotics enforcement,” adding that this approach has been affected by “[t]he enactment of state laws that endeavor to authorize marijuana production, distribution, and possession by establishing a regulatory scheme for these purposes…”

The Cole Memo listed the federal government’s specific enforcement priorities as follows:

  • Preventing the distribution of marijuana to minors;
  • Preventing revenue from the sale of marijuana from going to criminal enterprises, gangs, and cartels;
  • Preventing the diversion of marijuana from states where it is legal under state law in some form to other states;
  • Preventing state-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity;
  • Preventing violence and the use of firearms in the cultivation and distribution of marijuana;
  • Preventing drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use;
  • Preventing the growth of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands; and
  • Preventing marijuana possession or use on federal property.

The memo continues by stating that outside of the above-listed priorities, “the federal government has traditionally relied on states and local law enforcement agencies to address marijuana activity through enforcement of their own narcotics laws.”

So if the federal government views state governments as partners in a “traditional” joint approach, in which the federal government limits its own enforcement to the above-listed priorities, and leaves the rest to its enforcement partners at the state level, then could someone authorized by the state to engage in activity of the type that the federal government has announced it was ceding to the state to enforce have a valid argument that state permission covered them at the federal level as well?

It also bears noting that subsequent to the Cole Memo, a division of the U.S. Department of Treasury called the Financial Crimes Enforcement Network (or “FinCEN” for short) issued guidance “ to clarify Bank Secrecy Act (“BSA”) expectations for financial institutions seeking to provide services to marijuana-related businesses.”7

It is noteworthy that this federal government guidance does not warn that providing banking or other financial services to MRBs constitutes aiding, assisting, or abetting in the commission of a federal crime.  The guidance does require such institutions to exercise due diligence, and to file suspicious activity reports with FinCEN if it believes activity it observes might violate the federal government’s enforcement priorities.  In doing so, those institutions are actually aiding and assisting the federal government in its enforcement.

So in providing such guidance, is FinCEN “waving through” businesses who provide supporting services to marijuana-related businesses, providing that they adhere to the guidance?  Could the FinCEN guidance be interpreted by non-financial institutions for the premise that it’s OK to provide services to marijuana-related businesses as long as one keeps their eyes open for suspicious activity, and reports all suspect activity to the authorities?

Copyright 2022 Jeffrey S. Chase.  All rights reserved.

Notes:

  1. 696 F.3d 644 (7th Cir. 2012).
  2. Id. at 646.
  3. Id. at 646-47.
  4. Id. at 647.
  5. Voronin v. Garland, No. 2:20-cv-07019-ODW (AGRx) (C.D. Cal. Apr. 20, 2021).  Thanks to Marie Mark at the Immigrant Defense Project for flagging.
  6. 1 Code of Colorado Regulations 212-3 at Section 1-115.
  7. Financial Crimes Enforcement Network, “BSA Expectations Regarding Marijuana-Related Businesses,” FIN- 2014-G001, Feb. 14, 2014.

AUGUST 16, 2022

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Jeffrey S. Chase is an immigration lawyer in New York City.  Jeffrey is a former Immigration Judge and Senior Legal Advisor at the Board of Immigration Appeals.  He is the founder of the Round Table of Former Immigration Judges, which was awarded AILA’s 2019 Advocacy Award.  Jeffrey is also a past recipient of AILA’s Pro Bono Award.  He sits on the Board of Directors of the Association of Deportation Defense Attorneys, and Central American Legal Assistance.

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

The DHS position described by Jeffrey appears to fall on a scale somewhere between “bizarre and incredibly stupid!” But, that doesn’t mean immigrants and their lawyers shouldn’t be concerned and prepared to respond! 

🇺🇸 Due Process Forever!

PWS

08-26-22

⚖️👍🏽NDPA:  TWO BIG WINS FOR THE GOOD GUYS ! — Crime — Nunc  Pro Tunc Order —Family-Based Asylum From El Salvador!😎

Matter of Dingus, 28 I&N Dec. 529 (BIA 2022)

https://www.justice.gov/eoir/page/file/1496311/download

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/matter-of-dingus-28-i-n-dec-529-bia-2022#

“In a decision dated May 21, 2020, an Immigration Judge found the respondent to be removable as charged, denied her application for a waiver of inadmissibility under section 212(h) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1182(h) (2018), and ordered her removed from the United States. On appeal, the respondent contests the Immigration Judge’s determination that her Virginia conviction for distributing a controlled substance renders her ineligible for a section 212(h) waiver, arguing that a State court issued a nunc pro tunc order reflecting that she was not convicted of distributing a substance controlled by Federal law. The Department of Homeland Security (“DHS”) opposes the appeal. Because the nunc pro tunc order reflects the respondent has not been “convicted” of an offense relating to a controlled substance within the meaning of the INA, the respondent’s appeal will be sustained and the record will be remanded for further proceedings.”

[Hats off to Ben Osorio!]

pastedGraphic.png

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

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

Many congrats, Ben!😎 A rare win for the rule of law and the “good guys” at the BIA. And, give the BIA panel (Judges Goodwin, Gorman, & Greer) credit for rejecting the ICE position and getting this one right under the categorical approach.

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

Hello all,

Just wanted to share some good news!  A client had her merits hearing yesterday afternoon in Seattle. Her asylum claim was based on her PSG of being an immediate family member of a police officer.  She had been threatened by some maras and approached because the maras knew her husband was an officer.  She fled within 2 weeks.  The judge granted and DHS surprisingly did not put up much of a fight.

Sincerely,

Ramon Trujillo

Ramon Trujillo

Law Offices of Ramon Trujillo

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

Many congrats, Ramon! Clearly the correct result under Matter of Fuentes, 19 I&N Dec. 658 (BIA 1988). A former policeman is a PSG; so, undoubtedly the immediate family is also. And certainly, that relationship was “at least one central reason” for the persecution.

Imagine what a “Better Immigration Court” could look like if everyone had the awareness and integrity of the group in court for this case. Justice is a “team effort,” and it sounds like that’s what happened in your case.

That’s what should happen every day in every case at EOIR!

Also, I’ll bet there are more cases like this that were unfairly “locked out of our refugee/asylum system” by abusive use of Title 42 by the Trump and Biden Administrations.

🇺🇸 Due Process Forever!

PWS

04-23-22

THE GIBSON REPORT — 03-28-22 — Compiled By Elizabeth Gibson, Esquire, Managing Attorney, NIJC — HEADLINERS: ICE Lies To Congress About Attorney Access; BIA Flagged By 11th For Another “Categorical Approach” Blunder!

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

pastedGraphic.png

 

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)

  • NEWS
  • LITIGATION & AGENCY UPDATES
  • RESOURCES
  • EVENTS

 

NEWS

 

Biden Administration Prepares Sweeping Change to Asylum Process

NYT: Under the new policy, which the administration released on Thursday as an interim final rule, some migrants seeking asylum will have their claims heard and evaluated by asylum officers instead of immigration judges. The goal, administration officials said, is for the entire process to take six months, compared with a current average of about five years.

 

USCIS Agrees to Restore Path to Permanent Residency for TPS Beneficiaries

CLINIC: U.S. Citizenship and Immigration Services (USCIS) agreed to restore a path to permanent residency for many Temporary Protected Status (TPS) beneficiaries blocked by then-acting USCIS Director Ken Cuccinelli — an illegally appointed Trump official. Because of this agreement, TPS beneficiaries impacted by this policy will be able to reopen and dismiss their removal orders and apply to adjust their status to become permanent residents — eliminating the threat of deportation if their TPS protections are revoked in the future.

 

ICE ending Etowah County immigration detention after ‘long history of serious deficiencies’

AL: U.S. Immigration and Customs Enforcement, also known as ICE, will discontinue use of the Etowah County Detention Center in Gadsden, and will limit the use of the three other southern detention facilities: Glades County Detention Center in Moore Haven, FL., Winn Correctional Center in Winnfield, LA., and Alamance County Detention Facility in Graham, N.C. See also Biden to Ask Congress for 9,000 Fewer Immigration Detention Beds.

 

ICE claims ‘unabated’ legal access in detention during pandemic

Roll Call: Congress in the fiscal 2021 law instructed the agency to include the number of legal visits “denied or not facilitated” as well as how many detention centers do not meet the agency’s standards of communications between immigrants and their lawyers… [T]he report claimed ICE inspections in fiscal 2020 “did not identify any legal representatives being denied access to their clients.”

 

Cruelty as Border Policy: The Biden Administration Keeps in Place CBP’s “Consequence Delivery System”

Border Chronicle: Behind closed doors, agents, like technocrats in a Fortune 500 company, create color-coded graphics to demonstrate the most “efficient” and “effective” enforcement techniques. Even though the effectiveness of deterrence has been questioned and refuted, and even though the question of human rights has not entered the equation at all, the U.S. federal government seems to be plowing ahead with this without any questions.

 

Boston asylum office has second lowest grant rate for asylum seekers in the country

GBH: The Boston asylum office for U.S. Citizenship and Immigration Services granted only about 11% of applications last year, less than half the national average, according to a report released Wednesday.

 

Judge Orders Immig. Atty To Pay $240K For Asylum Scam

Law360: A Massachusetts judge ordered an immigration attorney to pay $240,000 in penalties and restitution for filing frivolous and false asylum applications for undocumented Brazilian immigrants without their knowledge, according to a Thursday announcement from Massachusetts Attorney General Maura Healey.

 

EOIR Announces 25 New Immigration Judges

More than half of the judges will be going to the Hyattsville Immigration Court (Maryland) and Sterling Immigration Court (Virginia, opening May 2022). The list includes Claudia Cubas (CAIR Coalition), Kristie Ann-Padron (Catholic Legal Services, Miami), Kyle A. Dandelet (Pro Bono Immigration Attorney at Cleary Gottlieb), Ayodele A. Gansallo (Hebrew Immigrant Aid Society of Pennsylvania), Joyce L. Noche (Immigrant Defenders Law Center), Christine Lluis Reis (Human Rights Institute at St. Thomas University College of Law), Carmen Maria Rey Caldas (IRAP), and others.

 

Biden says the U.S. will take 100,000 Ukrainians. But how many will go?

WaPo: Refugee workers said it was typical for recent refugees to focus at first on the possibility that they would be able to return quickly to their lives. But should the war drag on, more Ukrainians would seize on the chance to seek a haven in the United States, they said.

 

Immigration, Environmental Law Links Deepen Under Biden

Law360: Immigration and environmental attorneys are increasingly banding together as advocacy groups on both the left and the right try to leverage environmental laws to influence immigration policy.

 

LITIGATION & AGENCY UPDATES

 

DHS Partly Barred From Tailoring Immigration Enforcement

Law360: An Ohio federal judge on Tuesday blocked the U.S. Department of Homeland Security from considering a Biden administration mandate that had narrowed immigration enforcement priorities while making custody decisions, finding the policy overstepped sections of federal immigration law.

 

CA2 “Weapons Bar” Remand: Kakar v. USCIS

Lexis: On review, the United States District Court for the Eastern District of New York affirmed the denial under the “weapons bar” of the Immigration and Nationality Act (INA), 8 U.S.C. § 1182(a)(3)(B)(iii)(V). The question on appeal is whether USCIS, in denying Kakar’s application, adequately explained the unlawfulness of Kakar’s acts under United States law, and whether in doing so it considered his claim of duress. Because we are unable to discern USCIS’s full reasoning for denying Kakar’s application or to conclude that the agency considered all factors relevant to its decision, we conclude that its decision was arbitrary and capricious under the APA.

 

CA 11 Says Marijuana Conviction Can’t Bar Removal Relief

Law360: The Eleventh Circuit ruled Thursday that the Board of Immigration Appeals erred when finding that a man’s Florida conviction for marijuana possession rendered him ineligible for a form of deportation protection.

 

Feds Lose Bid To Move Texas Sheriffs’ Immigration Policy Suit

Law360: A Texas federal judge has denied the Biden administration’s bid to transfer a group of Texas sheriffs’ challenge to the administration’s immigration enforcement policies, rejecting the argument that none of the sheriffs in the judicial district has standing to sue.

 

DHS and DOJ Interim Final Rule on Asylum Processing

AILA: Advance copy of DHS and DOJ interim final rule (IFR) on asylum processing. The IFR will be published in the Federal Register on 3/29/22 and will be effective 60 days from the date of publication, with comments accepted for 60 days.

 

DOS Provides Guidance on Visas for Ukrainian Children

AILA: DOS issued guidance on visas for Ukrainian children undergoing intercountry adoption or who previously traveled for hosting programs in the United States. The Ukrainian government is not currently approving children to participate in host programs in the United States. More details are available.

 

EOIR Updates Appendix O of the Policy Manual with Adjournment Code 22

AILA: EOIR updated appendix O of the policy manual with adjournment code 22. The reason is “Respondent or representative rejected earliest possible hearing date,” and the definition is “Hearing adjourned due to respondent or representative rejecting earliest possible hearing date.”

 

HHS 60-Day Notice and Request for Comment on Forms for Sponsors for Unaccompanied Children

AILA: HHS 60-day notice and request for comments on proposed revisions to the Family Reunification Packet of forms for potential sponsors of unaccompanied children. Comments are due 60 days after publication of the notice. (87 FR 16194, 3/22/22)

 

RESOURCES

 

 

EVENTS

 

NIJC EVENTS

 

GENERAL EVENTS

 

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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

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

The idea that the DHS “New American Gulag” (“NAG”) doesn’t restrict attorney access is absurd! A primary reason for detention in obscure, out of the way, hard to reach places like Jena, LA, Lumpkin, GA, amd Dilley, TX is to inhibit representation and increase the pressure on detainees to abandon claims and take “final orders of removal.” 

That goes hand in hand with staffing these prisons with DOJ’s wholly owned judges who are renowned for denying bond and summarily denying most asylum claims. That a disproportionate number of these facilities are located in Federal Judicial Circuits five and eleven, notorious for anti-due process, anti-human-rights, anti-immigrant “jurisprudence,” is no coincidence either.

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

With respect to the “categorical approach,” as my distinguished colleague Judge Jeffrey Chase has pointed out, EOIR has actually “institutionalized” resistance to and manipulation of this analysis to promote results unfavorable to immigrants and pleasing to DHS!  

As several related Supreme Court decisions sealed the matter, the Board in 2016 was finally forced (at least on paper) to acknowledge the need to make CIMT determinations through a strict application of the categorical approach. However, as Prof. Koh demonstrates with examples from BIA precedent decisions, since 2016, the Board, while purporting to comply with the categorical approach, in fact has expanded through its precedent decisions the very meaning of what constitutes “moral turpitude,” enabling a greater number of offenses to be categorized as CIMTs.

Consistent with this approach was a training given by now-retired arch conservative Board member Roger Pauley at last summer’s IJ training conference.  From the conference materials obtained by a private attorney through a FOIA request, Pauley appears to have trained the judges not to apply the categorical approach as required by the Supreme Court when doing so won’t lead to a “sensible” result.  I believe the IJ corps would understand what this administration is likely to view as a “sensible” result. Remember that the IJs being trained cannot have more than 15 percent of their decisions remanded or reversed by the BIA under the agency’s completion quotas.  So even if an IJ realizes that they are bound by case law to apply the categorical approach, the same IJ also realizes that they ignore the BIA’s advice to the contrary at their own risk.

HON. JEFFREY S. CHASE: The History Of A Flawed Judiciary; The Intentional Tilting Of Asylum Law Against Asylum Seekers; The Farce Of Justice In The Immigration Courts; The Need For An Independent Article I Court!

As both of these incidents show, the Biden Administration under Mayorkas and Garland has failed to bring accountability or intellectual honesty to many parts of the broken immigration justice system they inherited from the Trump regime. The disgraceful “atmosphere of unaccountability” continues to predominate at DHS and DOJ.

🇺🇸Due Process Forever!

PWS

03-29-22

 

 

BAD NEWS FOR  BIGOTLAND: Even As Billy The Bigot Blatantly Bashes The “Categorical Approach,” 10th Cir. Blasts Billy’s Biased BIA’s Bogus Blowing Of Same To Illegally Deport Under CO Controlled Substances Law! 

EYORE
“Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
Dan Kowalski
Dan Kowalski
Online Editor of the LexisNexis Immigration Law Community (ILC)

10th-Johnson-drugs19-9550

From: Dan Kowalski 

Sent: Friday, July 31, 2020 4:16 PM
To: ICLINIC@LIST.MSU.EDU; Immigration Law Professors List
Subject: [immprof] FW: victory in Johnson v. Barr – Colorado possession statute overbroad and indivisble!!!

 

 

team,

a huge victory today for one of our clients, and hopefully many other folks in our community.

 

in Johnson v. Barr, the 10th circuit ruled that the Colorado statute of possession of a controlled substance is overboard as to the federal schedule and indivisible as to the particular controlled substance within a schedule.

 

the court honed in on the categorical approach, looking first to the plain language of the statute, the penalties assigned under the statute, its unpublished decision in Arellano, and persuasive state case law in deciding in our favor.

 

-this means that no conviction for possession of a schedule I or II CS can support the CS grounds of inadmissibility or deportability. this will hopefully help countless people who were found inadmissible, deportable, subject to mandatory detention, and ineligible for relief to seek redress of those legal errors.

 

-by extension, this decision is likely to apply to simply possession of a schedule III-V because it is also overbroad and structured nearly identically to the possession statute at issue in Johnson. moreover, due to legislative change last year classifying all PCS of schedule I-V CS as a DM1 offense starting in 2020, all future PCS offenses are likely also overbroad and indivisible.

 

this is definitely a day to celebrate. we will see whether the govt seeks rehearing or cert.

 

keep loving, keep fighting.

h

Hans Meyer

The Meyer Law Office, P.C.

 

To unsubscribe from this group and stop receiving emails from it, send an email to immprof+unsubscribe@lists.ucla.edu.

Hans Meyer ESQ
Hans Meyer ESQ
Meyer Law
Denver, CO

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

Congratulations, Hans!

As noted by Hans, this decision could have “big-time” impact and result in numerous motions to reopen and “redos.” It’s just another example of how the gimmicks and misinterpretations used and encouraged by the Trump regime as part of their “haste makes waste” deport everyone policies actually create backlogs and waste resources while doing grave injustices.

America needs an independent Article I U.S. Immigration Court with real expert judges, with a commitment to human rights and due process,  dedicated to seeing that individual results are fair and just, rather than carrying out a perverted, race and hate driven nativist political agenda to maximize deportations in disregard of the law.

Due Process Forever!

PWS

08-02-20

BIA SHOOTS UNREPRESENTED RESPONDENT ON “DIVISIBILITY” ANALYSIS — MATTER OF P-B-B-, 28 I&N Dec. 43 (BIA 2020) — Like Shooting Fish 🐟 In A Barrel 🛢!

MATTER OF P-B-B-, 28 I&N Dec. 43 (BIA 2020)

https://www.justice.gov/eoir/page/file/1296956/download

BIA HEADNOTE:

Section 13-3407 of the Arizona Revised Statutes, which criminalizes possession of a dangerous drug, is divisible with regard to the specific “dangerous drug” involved in a violation of that statute.

PANEL: Board Panel: GREER and O’CONNOR, Appellate Immigration Judges; SWANWICK, Temporary Appellate Immigration Judge.

OPINION: O’CONNOR, Appellate Immigration Judge

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

You think this isn’t “Theater of The Absurd?” Let’s check out Fns 5 & 6 from the opinion:

5 We recognize that the Ninth Circuit, in whose jurisdiction this case arises, utilized a modified categorical inquiry in Alvarado, 759 F.3d at 1130–33, to discern whether an alien’s conviction under section 13-3407 involved a federally controlled substance and was therefore a predicate for removal under section 237(a)(2)(B)(i) of the Act. However, the Ninth Circuit did not expressly analyze the divisibility of section 13-3407 in that decision, nor did the court have the benefit of the Supreme Court’s articulation of divisibility in Mathis. Moreover, the circuit recently certified a similar issue to the Arizona Supreme Court. See Romero-Millan v. Barr, 958 F.3d 844, 849 (9th Cir. 2020) (asking the court to resolve whether Arizona statutes proscribing possession of drug paraphernalia and possession of a narcotic drug under sections 13-3415 and 13-3408 of the Arizona Revised Statutes, respectively, are divisible with respect to the identity of the drug involved in each offense). For these reasons, we do not consider Alvarado to be persuasive authority regarding the divisibility of section 13-3407, which, in light of Romero-Millan, we view as an unsettled issue in the Ninth Circuit.

6 We acknowledge that State v. Prescott, No. 1 CA-CR 15-0188, 2016 WL 611656, at *2 (Ariz. Ct. App. Feb. 16, 2016), and State v. Castorina, No. 1 CA-CR 08-0816, 2010 WL 2450117, at *4 (Ariz. Ct. App. June 17, 2010), suggest that the identity of the “dangerous drug” involved in a violation of section 13-3407 is not an element of the statute. However, the United States District Court for the District of Arizona recently reviewed both cases, found that their reasoning was flawed, and concluded that Arizona case law fails to provide a “clear answer[] as to the divisibility” of section 13-3407. United States v. Sanchez-Murillo, No. CR-19-00795-PHX-SPL, 2019 WL 3858606, at *2–3 (D. Ariz. Aug. 16, 2019) (alteration in original) (citation omitted). Accordingly, we are not persuaded that Prescott or Castorina “definitively answer[s] whether the dangerous drug requirement of [section] 13-3407[] is divisible.” Gonzalez-Dominguez v. Sessions, 743 F. App’x 808, 811 (9th Cir. 2018).

So, how do you think that the unrepresented, almost certainly detained, respondent did on these issues, assuming that he even can read the BIA’s decision or have someone accurately read It to him?

The whole Immigration Court System has become a judicially and Congressionally-enabled “Due Process Farce” befitting a third word failed state that our country now resembles under the Trump kakistocracy. 

NO, those who say our democratic institutions are “holding up” under Trump are living in a parallel universe! 

PWS

07-24-20

BAD LAW: BIA Evades Supremes Again To Aid DHS Enforcement — Matter of NAVARRO GUADARRAMA, 27 I&N Dec. 560 (BIA 2019)

https://go.usa.gov/xmutz

Matter of NAVARRO GUADARRAMA, 27 I&N Dec. 560 (BIA 2019)

BIA HEADNOTE:

Where an alien has been convicted of violating a State drug statute that includes a controlled substance that is not on the Federal controlled substances schedules, he or she must establish a realistic probability that the State would actually apply the language of the statute to prosecute conduct involving that substance in order to avoid the immigration consequences of such a conviction. Matter of Ferreira, 26 I&N Dec. 415 (BIA 2014), reaffirmed.

PANEL: Appellate Immigration Judges  MALPHRUS, MANN, and KELLY

OPINION BY: Judge Ana L. Mann

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

Seems to me the BIA got this one all wrong.  The Florida statute was amended specifically to broaden the definition of “marihuana” to include things that aren’t marihuana. How can the BIA say that there is no chance of prosecution? Since stalks, etc. are now “marihuana” it wouldn’t even be a defense to point out that you just possessed stalks.

The BIA has twisted item the concept of “far fetched” to include things that the legislature clearly contemplated when amending the statute.

The Supreme’s decision in Moncrieffe was clearly intended to be ameliorative.  But the BIA has turned it into a “sword” for DHS. Moreover, since “stalks only” would no longer be a defense, why would any state case discuss it?

Generally the “Ferreira test” is impossible for any unrepresented respondent to meet. Indeed, I doubt that most detention center judges would have access to the necessary materials to research something so technical.

As my good friend and colleague in the Roundtable of Retired Judges, Judge Jeff Chase, added:

The Supreme Court and some of the circuits created case law that was designed to be clearer – i.e. it doesn’t matter what the respondent actually did, or what the actual sentence was, just look at the least culpable behavior covered by the statute.And the Supremes and some circuits obviously intended it to be ameliorative, given the harsh consequences of the immigration laws.

The BIA sees its mission as trying to render those higher court decisions meaningless.

How far we have come from an organization supposdly dedicated to using teamwork and best practices to “guarantee fairness and Due Process for all.”

PWS

06-16-19

DENNIS ROMERO @ NBC NEWS WITH A MORE NUANCED LOOK AT A BORDER WALL — It’s Highly Effective At “Re-Routing” Migrants, But Causes More Deaths, Enriches Smugglers, & Is Ineffective Against Drug Smuggling — Bottom Line: “[E]ffective at deterring crowds of migrants that will ultimately be undeterred.”

https://www.nbcnews.com/news/us-news/trump-says-san-diego-s-border-barrier-works-it-pushes-n965681

Dennis Romero reports for NBC News from San Diego:

When President Trump argues that the United States needs a wall along the southern border, he likes to point to San Diego’s success.

There, double and triple barriers fortify the westernmost stretch of the nearly 2,000-mile U.S.-Mexico border as U.S. Border Patrol agents drive SUVs along frontage roads and hover overhead in helicopters.

The militarized border touching the communities of Imperial Beach, San Ysidro and Otay Mesa contributed to a 75 percent decline in crossings in the years immediately after fencing was installed in the 1990s, according to U.S. Customs and Border Protection data.

The decline mirrors a border-wide decrease.Apprehensions of those suspected of illegally crossing the entire Southwest border experienced an uptick in 2018 over 2017 to nearly 467,000 but remained at less than half their peak in the 1980s and 1990s, when the Border Patrol racked up 1 to 1.6 million apprehensions.

President Donald Trump, who’s in a protracted battle to secure congressional funding for his campaign promise to build a wall along the entire length of the Southern border, on Thursday pointed to San Diego’s Mexican neighbor, Tijuana, as an example of what can happen with and without a barrier.

Trump’s proposed wall, based on one of eight prototypes in San Diego, is yet to be authorized by Congress.

“If you go to Tijuana and you take down that wall, you will have so many people coming into our country that Nancy Pelosi will be begging for a wall,” he said from the Oval Office. “She will be begging for a wall. She will say, ‘Mr. President, please, please give us a wall.'”

While it seems unlikely the House speaker would ever beg for a wall, the president has a valid point about fencing’s impact on the border region. Although San Diego’s barrier may stem illegal crossings, its impact is more complicated than Trump’s statement that “walls work” suggests.

From the 1980s to the early 1990s the Border Patrol’s San Diego sector was overrun with people illegally crossing the border. Hundreds of migrants would gather on a Tijuana River levee known as “El Bordo” and, much like the climactic border crossing scene in 1987’s “Born in East L.A.,” rush the few Border Patrol agents brave enough to try to stop them.

In the 1980s, about 40 percent of the Southwest’s illegal border crossings took place at San Diego, said Victor Clark-Alfaro of San Diego State University’s Center for Latin American Studies. The peak year for border apprehensions in the San Diego sector was 1986, when 628,000 migrants were nabbed.

“Tijuana was like a fiesta,” Clark-Alfaro said. “On a single day on a weekend at El Bordo you could find about 1,000 migrants ready to cross to the U.S. side. There was liquor, marijuana, human smugglers, street vendors.”

The defunct bureaucracy known as the U.S. Immigration and Naturalization Service, since replaced by three agencies under the Department of Homeland Security, built fencing along the border at San Diego in 1990, but it was no match for desperate Mexicans.

The migrants created a huge wave of south-of-the-border crossings into the U.S. that was addressed by Republican Pete Wilson, a onetime San Diego mayor who won re-election as California governor in 1994 based on a Trump-like platform of deterring illegal immigration.

“Bill Clinton had to respond,” said David Shirk, director of the University of San Diego’s master’s program in international relations.

In 1994, President Bill Clinton initiated Operation Gatekeeper, a crackdown at the border, and Congress followed up two years later with 14 miles of “triple-layered fence,” according to congressional records. Some of those first fences were made from Vietnam War-era landing mats intended for makeshift helicopter airstrips.

In 2006, Congress authorized “double-layered fencing” along at least 700 miles of border. The full length has yet to be covered with fencing because of delays in acquiring private property, often through court battles. But the San Diego sector received fresh fencing in the mid-1990s and again in the late-2000s.

Experts, many critical of Trump’s overall stand on border security, acknowledge the San Diego barriers, now made of steel bollards and surplus military landing mats, have more or less done their job. The sector went from being the top location for border crossings to a relative ghost town with 26,086 apprehensions in fiscal year 2017, according to the Border Patrol.

Image: San Diego Border
A migrant from Honduras passes a child to her father after he jumped the border fence to get into the U.S. side to San Diego, Calif., from Tijuana, Mexico on Jan. 3, 2019.Daniel Ochoa de Olza / AP file

The hardened border, however, pushed migrants to remote areas that have few man-made impediments and are often just World War II-style vehicle barriers known as Normandy fencing, Clark-Alfaro said. Arizona has become a hotbed of crossings, but migrants often die of dehydration. The mountains east of San Diego have also become a crossing zone, where migrants have died from hypothermia.

“Our beach was invaded by people on pangas, boogie boards,” said Imperial Beach Mayor Serge Dedina, adding that the fortified fencing “didn’t stop the tunnels” used by cartels to ship drugs into California and beyond.

The San Diego-area border security measures have also enticed cartels to dive deeper into smuggling because the barriers drive up prices for guides or coyotes, experts say. Prices have gone from as little as $75 in the 1990s to as much as $7,000 today, said San Diego State’s Clark-Alfaro.

“We’ve made it more profitable for human traffickers along the border,” added Shirk, of the University of San Diego.

However, narcotics continue to make it across the Southwest border, with seizures of heroin in the San Diego sector increasing 59 percentfrom 2016 to 2017, according to the U.S. Drug Enforcement Administration.

The San Diego sector was the top target along the southwest border for heroin smuggling outside points of entry, the DEA said. Eighty-five percent of the synthetic opioid fentanyl that crossed in 2017 entered through the San Diego area, according to DEA data.

Experts argue that one of the biggest influences on border crossings has been the Mexican economy, which has improved enough that many workers would rather just stay home. In Tijuana, home to a booming appliance and TV manufacturing sector, thousands of jobs are up for grabs.

And many of the immigrants from that huge wave in the 1980s and 1990s settled in the United States rather than crossing back and forth for seasonal work, experts say. In effect, they were walled in by the increased border security and are now staying put.

The boosted federal presence along the border also includes an exponential increase in the number of Border Patrol agents since 1990 to more than 20,000 today. At least 85 percent are stationed along the border, according to Shirk’s research.

Much of that increase in personnel came in the years following 9/11, when the Department of Homeland Security was created and crossing the border legitimately became much less casual, Shirk said. Passports are now required for travel in both directions.

The new border-crossing population comes mostly from Central America, where migrants have formed caravans to travel north. People fleeing murderous gangs — some, like MS-13, were born in the U.S. — have mostly sought asylum in the United States legally, although the Border Patrol U.S. Customs and Border Protection says groups of Central Americans have recently tried to rush into the country illegally.

The bottom line on San Diego’s beefed up border, some of which is slated for replacement, is a mixed bag effective at deterring crowds of migrants that will ultimately be undeterred.

“It’s effective at re-routing people,” said John Fanestil, a Methodist minister who has offered communion on the United States side of the fence. “We made it harder to cross the border illegally — more deadly, more costly. But when circumstances are as extreme as they are in Central America, people will demonstrate great determination to cross the border.”

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

As we used to say at the Arlington Immigration Court, “Desperate people do desperate things.” Or, as I have said on “Courtside,” “We can diminish ourselves as a nation, but it won’t stop human migration.”

What would actually help:

  • Technology, intelligence, undercover resources to combat drug smuggling;
  • More appropriate and generous application of our existing refugee and asylum laws at the border and in or near the Northern Triangle;
  • More resources for processing asylum applications at the Ports of Entry;
  • Expanded legal immigration opportunities, particularly for needed workers, that would more accurately reflect market forces driving today’s “extralegal immigration system;”
  • Working more closely with the UNHCR, Mexico, and other countries in the Hemisphere to solve the humanitarian problems driving refugee flows.

Why not “get smart” instead of continuing to “play dumb” on migration issues?

PWS

02-02-19

FROM THE ASHES OF CHAOS, GOOD GOVERNMENT REARS ITS HEAD! — Senate Overwhelmingly Passes Bipartisan Criminal Justice Reform Bill Supported By Trump! — But, Time’s Philip Elliott Reminds Us That “It Ain’t Over Till It’s Over!”

POLITICS
The Senate Just Passed a Major Criminal Justice Bill. But the Fight’s Not Over Yet

The US Capitol is seen in Washington, DC on Dec. 17, 2018. Saul Loeb—AFP/Getty Images
PHILIP ELLIOTT @PHILIP_ELLIOTT
December 19th, 2018
In a surprise end-of-the-year move, the Senate late Tuesday passed a sweeping and bipartisan rewrite of the nation’s criminal code with 87 votes in favor of the most ambitious changes in a generation.

Despite the headline-grabbing action, skeptics warned that there are still plenty of ways this can be derailed, especially as Congress is trying to pass a basic measure to keep the government’s doors open before a Friday deadline. The House still needs to accept changes made by the Senate, and President Donald Trump will need to sign it.

But, at least for the moment late Wednesday, a bill that would help low-risk offenders caught up in a sentencing matrix of mandatory minimums seems headed to becoming a law.

Outgoing House Speaker Paul Ryan immediately tweeted that he looked forward to helping send the bill to the President for his signature. According to one GOP aide, the House would begin considering the bill on the floor Thursday, although the schedule is fluid. Earlier this year, the House passed a version of this law by a bipartisan 360-59 vote.

And, at the White House, officials said Trump was on-board with a topic championed by West Wing senior adviser Jared Kushner. “I look forward to signing this into law!” the President tweeted in a sign that, maybe, this would be an easy win for advocates of criminal justice reform.

Critics on both sides of the aisle seemed to temper their criticism of the bill for the moment. As passed, the legislation falls short of the ambitious goals outlined for both parties and still leaves behind thousands of inmates. The bill does not address state or local laws, meaning tens of thousands of inmates would not benefit from the changes made at the federal levels. Even so, Congress’ internal think tank estimated that some 53,000 inmates would be affected over the next 10 years out of a federal population of 181,000.

“We’re not just talking about money,” said Sen. John Cornyn, the Texas Republican who is in his final weeks as the No. 2 member of his party in the Senate. “We’re talking about human potential. We’re investing in the men and women who want to turn their lives around once they’re released from prison, and we’re investing in so doing in stronger and more viable communities, and we’re investing tax dollars into a system that helps produce stronger citizens.”

Officially called The First Steps Act, the measure provides anti-recidivism programing for those currently incarcerated, job training and rehabilitation programs for federal prisoners. It also provides an early-release provision for non-violent offenders and removes a disparity between power cocaine and crack, a distinction that is widely seen as racially motivated.

Still, there are landmines ahead. For instance, if Congress votes to aid convicts but not to fund border security, conservative critics will pounce. And liberal groups, who sought more from this measure, will criticize the effort for not doing more to address sentencing laws they see as racist. With many departing members counting their time in Washington in hours and not weeks, the tenuous agreement is largely seen as in peril at best. On top of all of this, many of the lawmakers casting votes were shown the door in November’s elections, a typical criticism of such lame-duck sessions.

These worries did little to mute the enthusiasm seen on the Senate floor Tuesday night. Sen. Chuck Grassley, R-Iowa, was ending his turn as Judiciary Committee chairman on a high note, sporting a red sweater as the vote proceeded. Sen. Cory Booker, D-N.J., was seen enthusiastically shaking hands with and hugging Republican colleagues. Even Senate Majority Leader Mitch McConnell, who was personally lukewarm at best on the proposal, cracked a smile as he voted for the measure. Earlier, he was coy about whether he would vote in favor of the measure.

Addressing the criminal justice system has become an unlikely bipartisan meeting of interests. Conservatives see the ballooning federal prison population as an unacceptable cost. Liberals see it as the manifestation of social and racial injustice. Groups with divergent ideological views, such as the conservative network of organizations funded by Charles Koch and the liberal Centers for American Progress, found common ground on this topic.

McConnell agreed to a series of changes in recent days but rejected others. On the floor late Tuesday, lawmakers rejected a series of last-minute additions that were seen as ways to derail the whole package. Their chief authors, Sen. Tom Cotton of Arkansas and John Kennedy of Louisiana, watched as the so-called poison-pill amendments were rejected.

If the vote late Tuesday was a sign, it appears the coming two years in Washington under a divided government might not be a complete logjam. McConnell relented to allow a vote and, at least for now, progressive lawmakers did not allow themselves to be derailed in pursuit of the perfect at the cost of the good. Republicans dropped their tough-on-crime rhetoric and Democrats dropped their social-justice arguments. And, at least on Twitter, Trump seemed to break with his all-or-nothing approach to criminals in order to notch a win.

With reporting by Alana Abramson in Washington

Tags

# CONGRESS# CRIMINAL JUSTICE# JUSTICE

Sent from my iPad

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How do we know this legislation is good for America? It was opposed by Jim Crow White Nationalists Jeff “Gonzo Apocalypto” Sessions and Sen. Tom Cotton (R-AK). Just shows that if you can keep guys like that out of the way of progress, some good things actually could get done. Doesn’t mean they will; just shows the potential.

Just think of the potential if Trump fired neo-Nazi immigration adviser Stephen “Hairboy” Miller and got some practical, informed, non-racist advice on immigration policy! Unfortunately for America and the world (and, perhaps for Trump too) Miller is one of the few non-Trump-Family “survivors” in the West Wing.

PWS

12-19-19

THE GIBSON REPORT 07-23-18 — COMPILED BY ELIZABETH GIBSON, ESQUIRE, NY LEGAL ASSISTANCE GROUP — LEAD ITEM – 2D CIR. SAYS BIA WRONG AGAIN, THIS TIME ON NY 3RD DEGREE MARIHUANA SALES!

THE GIBSON REPORT 07-25-18

THE GIBSON REPORT 07-23-18

 

TOP UPDATES

 

3d Degree Marijuana Sale Not an Ag Fel (NYPL 221.45) & realistic probability

2nd Cir: “The BIA decision rested on the observation that there was no “realistic probability” that New York would apply NYPL §221.45 to conduct outside the generic federal felony. That was error because the state statute on its face punishes conduct classified as a federal misdemeanor.”

 

Immigration cop shortage and a caution against hiring too quickly

WaPo: Customs and Border Protection (CBP) remains below authorized levels despite increasing the job applications received, cutting the time to hire and boosting the percentage of applicants employed.

 

New G-28 and I-765 Forms

USCIS just released a new version of the G-28 and I-765 and will no longer accept previous versions starting September 17th

 

Impact of Sessions’ asylum move already felt at border

CNN: Immigrants are already being turned away at the border under Attorney General Jeff Sessions’ recent reinterpretation of asylum law. And advocates for them fear there may be no end to it anytime soon.

 

Immigrant Children Describe Hunger and  Cold in Detention

AP: The children’s descriptions of various facilities are part of a voluminous and at times scathing report filed in federal court this week in Los Angeles in a case over whether the Trump administration is meeting its obligations under a long-standing settlement governing how young immigrants should be treated in custody.

 

City of Fear

NYMag: In the eight months following Donald Trump’s inauguration, ICE arrests in the region jumped by 67 percent compared to the same period in the previous year, and arrests of immigrants with no criminal convictions increased 225 percent. During that time, ICE arrested 2,031 people in its New York “area of responsibility,” which includes the five boroughs and surrounding counties. These aren’t unprecedented numbers: ICE arrested almost four times as many people in 2010 in New York as it did last year, and it picks up far fewer people here than in other parts of the country.

 

A fate worse than separation awaits Central American families

Seattle Times: Under two court orders, the government is now reuniting migrant children with their mothers. Although the California court that ordered the reunification may permit continued detention of the families until their asylum claims can be decided, something worse than separation or detention awaits those mothers who are deported: rape and death.

 

The Trump Administration Is Working to Deport More Legal Immigrants

MJ: Earlier this month, as outrage continued over the Trump administration’s family separation policies, another immigration agency quietly introduced several changes that could threaten even more immigrants, many of them here legally, with deportation.

 

Chasing Down the Rumors: EOIR Hotline Once Again Includes Names of Immigration Judges

EOIR is once again including the names of immigration judges on its automated case status hotline, reversing course following complaints over the names being removed from the system in March 2018. AILA Doc. No. 16112144

 

Update on VTC at Varick Street

AILA: Despite advocacy, NY Field Officer Director Tom Decker has made no moves  to change the new policy that all NYC detained cases will now be conducted via video teleconferencing (“VTC”) for all hearings.

 

New York City Bar Issues Recommendations Regarding ICE Enforcement in New York State Courthouses

The New York City Bar issued a report with recommendations on the increasing number of ICE civil arrests being conducted in and around New York State courthouses, stating that if continued, “this practice poses a threat to the New York State court system’s ability to ensure access to justice….” AILA Doc. No. 18072303

 

Think Immigration: The President’s Proposal to Eliminate Due Process at the Border

In this blog post, AILA Policy Counsel Jason Boyd highlights recent tweets from the president that attack due process for asylum seekers and explains how and why, if implemented, such changes would violate U.S. asylum laws. AILA Doc. No. 18071636

 

LITIGATION/CASELAW/RULES/MEMOS

 

District Court Judge Orders Reunification of Parents and Children

On 7/16/18, Judge Dana Sabraw granted an interim stay of removal for class members who may be subject to deportation. (Ms. L.; et al., v. ICE, 7/16/18) AILA Doc. No. 18060800

 

ICE Provides Guidance to OPLA Attorneys on Administrative Closure Following Matter of Castro-Tum

ICE provides guidance to OPLA attorneys litigating administrative closure in the wake of the Attorney General’s precedent decision in Matter of Castro-Tum. Guidance obtained from the blog, Immigration Courtside. AILA Doc. No. 18072074

 

DHS Announces Extension of TPS for Somalia for 18 Months

DHS announced the extension of the Temporary Protected Status (TPS) designation for Somalia for 18 months, through March 17, 2020. Further details, including information about the re-registration process and employment authorization documents, will appear in a Federal Register notice. AILA Doc. No. 18071931

 

EOIR Provides User Manual for Expanded Electronic Filing Pilot

EOIR provided a user manual on its expanded electronic filing pilot that explains the procedures for participation. Participation in the pilot program is on a voluntary basis, and pilot participants must adhere to the procedures in this manual, effective July 16, 2018. AILA Doc. No. 18072072

 

2018 USCIS Form Updates

 

RESOURCES

 

 

EVENTS

 

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Ah, another day, another major mistake by the BIA affecting Due Process and individuals’ lives. Sadly, nobody seems interested in solving the problem except the “New Due Process Army.” Absurdly, scofflow, child abuser Attorney General Jeff Sessions seeks to further truncate immigrants’ rights and to “speed up” an already broken system even as the wheels come off! The Second Circuit case is Hylton v. Sessions.

PWS

07-25-18

SUPREMES AGREE TO TAKE ANOTHER DETENTION CASE — This One Involves The “When Released” Issue For Mandatory Detention – Nielsen v. Preap, 9th Cir.

http://www.scotusblog.com/case-files/cases/nielsen-v-preap/

SCOTUS BLOG REPORTS

Nielsen v. Preap

Docket No. Op. Below Argument Opinion Vote Author Term
16-1363 9th Cir. TBD TBD TBD TBD OT 2018

Issue: Whether a criminal alien becomes exempt from mandatory detention under 8 U.S.C. § 1226(c) if, after the alien is released from criminal custody, the Department of Homeland Security does not take him into immigration custody immediately.

SCOTUSblog Coverage

Date Proceedings and Orders
Mar 31 2017 Application (16A944) to extend the time to file a petition for a writ of certiorari from April 11, 2017 to May 11, 2017, submitted to Justice Kennedy.
Apr 07 2017 Application (16A944) granted by Justice Kennedy extending the time to file until May 11, 2017.
May 11 2017 Petition for a writ of certiorari filed. (Response due June 12, 2017)
May 18 2017 Order extending time to file response to petition to and including July 12, 2017, for all respondents.
Jun 26 2017 Order further extending time to file response to petition to and including August 11, 2017.
Aug 08 2017 Brief of respondents Mony Preap, et al. in opposition filed.
Aug 23 2017 DISTRIBUTED for Conference of 9/25/2017.
Aug 23 2017 Reply of petitioners Elaine C. Duke, Acting Secretary of Homeland Security, et al. filed. (Distributed)
Feb 27 2018 DISTRIBUTED for Conference of 3/2/2018.
Mar 12 2018 DISTRIBUTED for Conference of 3/16/2018.
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Supremes have taken lots of immigration detention cases. The results have been all over the place, but generally more favorable to migrants than to the Government. However, in the last case, Jennings v. Rodriguez, not so much. Stay tuned.
PWS
03=20-18

 

NEW BIA PRECEDENT ON CONTROLLED SUBSTANCES – MATTER OF ROSA, 27 I&N DEC. 228 (BIA 2018) — We’re All Becoming Bit Players In A Continuous Performance Of “The Theater Of The Absurd!”

ROSA- 3919

Matter of ROSA, 27 I&N Dec. 228 (BIA 2018)

BIA HEADNOTE:

(1) In deciding whether a State offense is punishable as a felony under the Federal Controlled Substances Act and is therefore an aggravated felony drug trafficking crime under section 101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2012), adjudicators need not look solely to the provision of the Controlled Substances Act that is most similar to the State statute of conviction.

(2) The respondent’s conviction under section 2C:35-7 of the New Jersey Statutes for possession with intent to distribute cocaine within 1,000 feet of school property is for an aggravated felony drug trafficking crime because his State offense satisfies all of the elements of 21 U.S.C. § 841(a)(1) (2012) and would be punishable as a felony under that provision.

PANEL: BIA Appellate Immigration Judges PAULEY, WENDTLAND, O’CONNOR

OPINION BY: Judge Linda S. Wendtland

CONCURRING OPINION: Judge Blair T. O’Connor

 KEY QUOTE FROM JUDGE O’CONNOR’S CONCURRING OPINION:

“So while I do not disagree with the point made by the majority and the DHS about avoiding absurd results, I unfortunately do not find it to be persuasive. This statement alone is a sad commentary on the state of affairs when it comes to making criminal law determinations in immigration proceedings and is an earnest call for a congressional fix to the mess we currently find ourselves in. See United States v. Fish, 758 F.3d 1, 17–18 (1st Cir. 2014) (collecting cases that call on Congress to “rescue the federal courts from the mire into which . . . [the] ‘categorical approach’ [has] pushed [them]” (quoting Chambers v. United States, 555 U.S. 122, 131–32 (2009) (Alito, J., concurring))); Mathis, 136 S. Ct. at 2258 (Kennedy, J., concurring) (noting the “continued congressional inaction in the face of a system that each year proves more unworkable”).

Finally, it bears noting that the Third Circuit has already found § 860 to be the proper Federal analogue to section 2C:35-7, albeit in an unpublished decision. See Chang-Cruz, 659 F. App’x 114. In that decision, the Government conceded that this was the case, and having lost the divisibility battle there, the DHS now seeks to use § 841 to argue that section 2C:35-7 is categorically an aggravated felony drug trafficking crime. Although I do not disagree with the majority that such an approach is permissible, I do so with reservations over how much more complicated categorical determinations may become for adjudicators who must now decide what is an “appropriate Federal analogue” and consider that analogue, or any permissible combination of such analogues, in discerning whether a State offense is a felony under the Controlled Substances Act. These determinations are difficult enough for an immigration system that is already overburdened. In the words of Justice Alito, “I wish them good luck.” Mathis, 136 S. Ct. at 2268 (Alito, J., dissenting).”

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Bottom line:

  • The respondent loses (of course);
  • The law is too complicated; and
  • Judge O’Connor thinks it should be unnecessary to go through all this rigmarole because this is a “bad guy” whom Congress clearly intended to kick out without recourse.

If anyone can explain the legal gibberish in this case further to me in plain English in 25 words or fewer, please do!

I get the point that the law has become too complex. But, this discussion seems to bypass the real problem in cases like this that has been “lost in space.”

How would an unrepresented, detained individual who doesn’t speak English properly defend him or herself in a case like this. The clear answer: they couldn’t, since even the “expert judges” in the Ivory (or Glass) Towers with their teams of cracker-jack law clerks are struggling with this stuff. Therefore, in the absence of counsel, appointed if necessary, these hearings before the Immigration Judges are nothing but judicial farces, theaters of the absurd, that mock due process and fairness and trample our Constitution. Samuel BeckettLuigi Pirandello, Friedrich Dürrenmatt, and friends would be proud of what’s been accomplished in our 21st Century immigration system!

That’s the problem to which both Congress and the Article III Appellate Courts need to wake up before it’s too late. In the meantime, please explain to me just how Sessions’s “pedal faster, schedule more, cut corners” approach to the Immigration Courts is helping to solve this problem?

PWS

03-14-18

 

BIA Amicus Invitation – Conviction for Possession of Controlled Substance, Florida (Due Mar. 29, 2018)

Amicus Invitation No. 18-02-27
AMICUS INVITATION (CONVICTION FOR POSSESSION OF A CONTROLLED SUBSTANCE IN FLORIDA),
DUE March 29, 2018

FEBRUARY 27, 2018

The Board of Immigration Appeals welcomes interested members of the public to file amicus curiae briefs discussing the below issue:

ISSUES PRESENTED:

  1. (1)  Considering that knowledge of the illicit nature of a substance is not an element of the crime of possession of a controlled substance pursuant to Fla. Stat. § 893.13(6)(a), does the statute categorically define a violation “relating to” a controlled substance as provided in sections 212(a)(2)(A)(i)(II) and 237(a)(2)(B)(i) of the Act? Please discuss in light of Matter of L-G-H-, 26 I&N Dec. 365 (BIA 2014).
  2. (2)  Is the definition of cocaine provided in Fla. Stat. § 893.03(2)(a) coextensive with the definitionprovidedinthefederalcontrolledsubstanceschedules? Ifnot,whatistheimport of any difference in these definitions? Is any difference clearly evident from the Florida statute’s text?
  3. (3)  If the definition of cocaine provided in Fla. Stat. § 893.03(2)(a) is not coextensive with the definition provided in the federal controlled substance schedules, is the Florida statute divisible as to the nature of the controlled substance such that the application of the modified categorical approach is appropriate?

Request to Appear as Amicus Curiae: Members of the public who wish to appear as amicus curiae before the Board must submit a Request to Appear as Amicus Curiae (“Request to Appear”) pursuant to Chapter 2.10, Appendix B (Directory), and Appendix F (Sample Cover Page) of the Board of Immigration Appeals Practice Manual. The Request to Appear must explicitly identify that it is responding to Amicus Invitation No. 18-02-27. The decision to accept or deny a Request to Appear is within the sole discretion of the Board. Please see Chapter 2.10 of the Board Practice Manual.

Filing a Brief: Please file your amicus brief in conjunction with your Request to Appear pursuant to Chapter 2.10 of the Board of Immigration Appeals Practice Manual. The brief accompanying the Request to Appear must explicitly identify that it is responding to Amicus Invitation No. 18-02-27. An amicus curiae brief is helpful to the Board if it presents relevant legal arguments that the parties have not already addressed. However, an amicus brief must be limited to a legal discussion of the issue(s) presented. The decision to accept or deny an amicus brief is within the sole discretion of the Board. The Board will not consider a brief that exceeds the scope of the amicus invitation.

Request for Case Information: Additional information about the case may be available. Please contact the Amicus Clerk by phone or mail (see contact information below) for this information prior to filing your Request to Appear and brief.

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Page Limit: The Board asks that amicus curiae briefs be limited to 30 double-spaced pages.

Deadline: Please file a Request to Appear and brief with the Clerk’s Office at the address below by March 29, 2018. Your request must be received at the Clerk’s Office within the prescribed time limit. Motions to extend the time for filing a Request to Appear and brief are disfavored. The briefs or extension request must be RECEIVED at the Board on or before the due date. It is not sufficient simply to mail the documents on time. We strongly urge the use of an overnight courier service to ensure the timely filing of your brief.

Service: Please mail three copies of your Request to Appear and brief to the Clerk’s Office at the address below. If the Clerk’s Office accepts your brief, it will then serve a copy on the parties and provide parties time to respond.

Joint Requests: The filing of parallel and identical or similarly worded briefs from multiple amici is disfavored. Rather, collaborating amici should submit a joint Request to Appear and brief. See generally Chapter 2.10 (Amicus Curiae).

Notice: A Request to Appear may be filed by an attorney, accredited representative, or an organization represented by an attorney registered to practice before the Board pursuant to 8 C.F.R. § 1292.1(f). A Request to Appear filed by a person specified under 8 U.S.C. § 1367(a)(1) will not be considered.

Attribution: Should the Board decide to publish a decision, the Board may, at its discretion, name up to three attorneys or representatives. If you wish a different set of three names or you have a preference on the order of the three names, please specify the three names in your Request to Appear and brief.

Clerk’s Office Contact and Filing Address:

To send by courier or overnight delivery service, or to deliver in person:

Amicus Clerk
Board of Immigration Appeals Clerk’s Office
5107 Leesburg Pike, Suite 2000 Falls Church, VA 22041 703-605-1007

Business hours: Monday through Friday, 8:00 a.m. to 4:30 p.m.
Fee: A fee is not required for the filing of a Request to Appear and amicus brief.

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PWS

02-28-18