ANOTHER ONE BITES THE DUST: BIA Appellate Immigration Judge Linda Wendtland To Retire

 

Another one bites the dust
Another one bites the dust
And another one gone, and another one gone
Another one bites the dust…

—“Another One Bites The Dust” by Queen

 

ANOTHER ONE BITES THE DUST: BIA Appellate Immigration Judge Linda Wendtland To Retire

 

By Paul Wickham Schmidt

Exclusive for Courtside

 

Alexandria, VA, Jan. 16, 2019. Appellate Immigration Judge Linda Wendtland will soon retire from the BIA. Acting Chair Garry D. Malphrus made the announcement to judges and staff.

Judge Wendtland is the fourth veteran appellate jurist to leave the BIA recently, following the retirements of Judges Patricia Cole, John Guendelsberger, and Molly Kendall Clark at the end of 2019. Additionally, former BIA Chair Judge David Neal retired suddenly in October.

Thus, the Trump regime’s aggressive effort to “dumb down” and weaponize the U.S. Immigration Courts as a means of depriving migrants of any semblance of due process of law appears to be taking its toll on our nation’s highest administrative immigration tribunal. The BIA now has six vacancies among its 21 authorized judges, including the Chair. Based on recent hiring, we can expect only candidates with established pro-enforcement records and inordinately high rates of asylum denial to be appointed to BIA judgeships by Attorney General Barr.

Judge Wendtland was appointed in 2008 by Attorney General Mukasey, following a long career as a senior litigator in the Office of Immigration Litigation in the DOJ’s Civil Division. She is generally regarded as scholarly, analytical, and occasionally willing to take positions favoring migrants rather than DHS in appellate decisions, notwithstanding her government litigation background. The qualities of scholarship, impartial analysis, and decisional independence appear to have fallen “out of vogue” in the selection of Immigration Judges at both the trial and appellate levels in the Trump regime’s DOJ.

Indeed, and shockingly to those of us in the Round Table of Former Immigration Judges, former Attorney General Jeff Sessions publicly emphasized that Immigration Judges should be “partners” with DHS enforcement while he spread false, unsupported narratives about widespread asylum fraud and “dirty” immigration lawyers. Many found these biased statements of expected “judicial subservience” to a highly politicized and controversial immigration enforcement agenda to be astounding, particularly since most of the “fraud” that has come to light recently relates to the regime’s inhumane treatment of asylum seekers and denial of their due process and legal rights to apply for protection in the United States. All of the actions to date by Attorney General Barr show that he shares the same biased, enforcement skewed view of the Immigration Courts as mere appendages of DHS enforcement as did his predecessor.

Judge Wendtland’s departure will be yet another blow to the few remnants of EOIR’s once proud, but now forgotten and despised, “vision” of “through teamwork and innovation, be the world’s best administrative tribunals guaranteeing fairness and due process for all.” Sadly, that’s now become a cruel joke for many endangered asylum seekers being rejected at our Southern Border without any semblance of fairness or due process whatsoever.

Thanks for your service, Judge Wendtland, and best wishes in the future.

 

PWS

01-16-20

 

 

 

START 202O OFF RIGHT WITH THESE INSPIRING STARS OF THE “NEW DUE PROCESS ARMY” – 1) Judge Lisa Dornell On CNN; 2) Judge Jeffrey Chase Blog “The Need for Transparency;” 3) Elizabeth Gibson, Esquire, “The Gibson Report 12-30-19”

 

 

Lisa Dornell, a former US immigration judge, says she could no longer serve under President Donald Trump after his administration interfered with immigration courts. #CNN #News

Category

News & Politics

 

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Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog

MON, DEC 30

The Need for Transparency

A respected colleague of mine, former Immigration Judge Ilyce Shugall, generously volunteered to take time from her own schedule to travel halfway across the country to San Antonio, TX and observe

Read More

Other news:

Second Circuit holds that the deadline for filing BIA appeals “is a claim-processing rule amenable to equitable tolling:” Attipoe v. Barr

CNN reports on immigration judges quitting in response to Trump Administration policies

BIA Appellate Judges Patricia Cole, Molly Kendall Clark, and John Guendelsberger, and Immigration Judge Charles Honeyman of the Philadelphia Immigration Court are retiring.

Thank you for reading, and best wishes for a happy and healthy 2020!

500 4th Ave., Brooklyn, NY 11215, USA

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

 

TOP UPDATES

 

Immigration Judges In NYC Are Even Less Likely To Grant Asylum Now

Gothamist: [Contains a great chart summarizing every NYC IJ’s grant rate and changes over time]. Just four years ago, the research group TRAC found New York judges denied just 16 percent of asylum seekers. That figure has been rising since Trump took office. But the average denial rate for a New York judge shot up to 46 percent in fiscal year 2019, according to the latest data, from 32 percent in the previous year. See also Immigration judges quit in response to administration policies.

 

ICE reopening long-closed deportation cases against Dreamers

CNN: ICE has begun asking immigration courts to reopen administratively closed deportation cases against DACA recipients who continue to have no criminal record, or only a minor record. Immigration attorneys in Arizona confirmed at least 14 such cases being reopened since October, and CNN also found DACA recipients whose cases recently were reopened in Nevada and Missouri.

 

Bureaucracy as a weapon: how the Trump administration is slowing asylum cases

Guardian: Over a half-dozen immigration attorneys across the country interviewed by the Guardian describe how the US Citizenship and Immigration Services (USCIS) has returned applications unprocessed over the equivalent of failing to dot an I or cross a T – a shift with potentially life-altering consequences for their vulnerable clients.

 

Federal government deleted more immigration court records about asylum in public data release: researchers

U-T: Though the federal government promised to review a public data release of immigration court cases after researchers pointed to missing records relating to asylum, the issue has only gotten worse.

 

A Secret Report Exposes Health Care For Jailed Immigrants

Buzzfeed: BuzzFeed News has obtained a memo in which an ICE whistleblower says two immigrants got preventable surgeries and two were given the wrong drugs. Four died — one after getting “grossly negligent” care. See also House panel opens investigation into immigrant detainees’ medical care.

 

Immigration Was the No. 2 Story of 2019

AP: The drive by the Democratic-led House of Representatives to impeach President Donald Trump was the top news story of 2019, according to The Associated Press’ annual poll. Trump also figured in the second and third biggest stories of the year: the fallout over his immigration policies and the investigation by Special Counsel Robert Mueller into whether his election campaign coordinated with Russia.

 

Immigration Court “Status Docket” – the Secret Almost Alternative to Administrative Closure

LexisNexis: In 2018 the Attorney General ended the ability of immigration judges to administratively close cases, concluding they had in fact never had such authority. As shocking as that was at the time, we’re now seeing pieces of that puzzle were being laid out months before the Attorney General released that decision. And the more we learn, the more it appears the end of administrative closure was more about results (faster deportations) than about the legal principles outlined there.

 

LITIGATION/CASELAW/RULES/MEMOS

 

Asylum Ban 2.0 Temp Stay Granted in Favor of Administration

The government requests an emergency temporary stay of the district court’s order provisionally certifying a class, and preliminarily enjoining the government from enforcing the Third Country Transit Rule, 8 C.F.R. § 208.13(c)(4), against non-Mexican nationals who were allegedly in the process of arriving at a port of entry before the Third Country Transit Rule went into effect…We grant the government’s motion for a temporary stay to preserve the status quo pending a decision on the motion for stay pending appeal.

 

Ninth Circuit Orders Review of Immigrant’s Deportation During Appeal

CNS: A Ninth Circuit panel on Friday granted an immigrant’s petition to review the federal government’s decision to deport him, saying that his removal from the country during legal proceedings did not constitute a withdrawal of his appeal.

 

USCIS Begins Accepting Green Card Applications Under Liberian Refugee Immigration Fairness

USCIS began accepting applications to adjust status to lawful permanent resident from certain Liberian nationals under Section 7611 of the National Defense Authorization Act for FY2020, Liberian Refugee Immigration Fairness (LRIF). USCIS will accept properly filed applications until 12/20/20. AILA Doc. No. 19122690

 

RESOURCES

 

·       Think Immigration: They/Them/Ours: Discussing pronouns with clients.

·       The Collaborators in Honduras: The Girls Who Want to be MortalGang perceptions of women.

 

EVENTS

   

·       1/23/20 Debrief on Mississippi Raid: Lessons Learned and Improving Responses

 

ImmProf

 

Monday, December 30, 2019

·       Nolan Rappaport (The Hill): Removal of DACA recipients has begun: It didn’t take a crystal ball to see DACA would not end well

·       New Path to Citizenship for Liberians

·       Hispanic voters being overlooked in Democratic presidential campaign

Sunday, December 29, 2019

·       Top 10 Immigration Stories of the Decade

·       From the Bookshelves: All-American Nativism: How the Bipartisan War on Immigrants Explains Politics as We Know It by Daniel Denvir

Saturday, December 28, 2019

·       Trump administration begin to ramp up DACA removals?

Friday, December 27, 2019

·       Congress investigating immgrant detainees’ medical care

·       Taking Private Lands for the Border

·       AP: Immigration Policy Second Biggest News Story of 2019

·       Trump administration chasing immigration judges away?

·       Immigration Judges Asylum Grants & Denials: Fiscal Years 2018-2019

Thursday, December 26, 2019

·       How U.S. Immigration Policy Changed This Year — in 10 minutes

·       In Christmas Day Message, Pope Francis Shines Light On Migrant Suffering

·       Colorado Governor Pardons Immigrant Mother Who Sought Sanctuary

Wednesday, December 25, 2019

·       Santa’s Visa Options

·       Documentary: The Faces of Family Separation

Tuesday, December 24, 2019

·       An Immigrant’s Christmas Eve

·       An Immigrant’s Christmas Eve, 1979

·       How ICE Uses Social Media to Surveil and Arrest Immigrants

Monday, December 23, 2019

·       Immigrant of the Day: Kamaru Usman

 

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INTERESTING HISTORICAL SIDENOTE: As reported by Jeffrey in his blog, with the retirement of BIA Appellate Immigration Judges Patricia Cole and John Guendelsberger, the only remaining member of the “Schmidt Board” (1995-2001) is Judge Ed Grant. Judge Cole worked with me back in the days of the Legacy INS General Counsel’s Office, as did Judge Molly Kendall Clark who also was one of my Senior Counsel when I was BIA Chair. Judges Cole and Guendelsberger were the last of the “original” 12 members of the “Schmidt Board” invested with me by then Attorney General Janet Reno in the Fall off 1995.

Another historical note:  Judge Dornell’s late father Ed Dornell and I worked together at the Legacy INS during the Reagan Administration when he was the Director of Intelligence and I was the Deputy General Counsel/Acting General Counsel.

HAPPY NEW YEAR!🥂🍾🏈😎

DUE PROCESS FOREVER!

PWS

01-01-20

 

 

 

BIA NEWS: Judge Garry D. Malphrus Leapfrogs Into Acting Chair Job, As Two Of The Remaining “Voices Of Reason” Bite The Dust At Barr’s “Newly Packed” Falls Church Station Stop On The “Trump Deportation Express!”

BIA NEWS: Judge Garry D. Malphrus Leapfrogs Into Acting Chair Job, As Two Of The Remaining “Voices Of Reason” Bite The Dust At Barr’s “Newly Packed” Falls Church Station Stop On The “Trump Deportation Express!”

 

By Paul Wickham Schmidt

Exclusive for immigrationcourtside.com

 

Nov . 7, 2019. In a little noticed move, “Trump Chump” Attorney General Billy Barr in October advanced conservative GOP appointed Appellate Immigration Judge Garry D. Malphrus to the position of Acting Chair of the Board of Immigration Appeals in Falls Church Virginia. The move followed the sudden reputedly essentially forced “retirement” of former Chair David Neal in September.

 

Notably, Barr bypassed long-time BIA Vice Chair and three-decade veteran of the Executive Office for Immigration Review (“EOIR”) (which “houses” the BIA) Judge Charles “Chuck” Adkins-Blanch to elevate Judge Malphrus. Increasingly, particularly in the immigration area, the Trump Administration has circumvented bureaucratic chains of command and normal succession protocols for “acting” positions in favor of installing those committed to their restrictionist political program.

 

Like former Chair Neal, Vice Chair Adkins-Blanch has long been rumored not to be on the “Restrictionist A Team” at EOIR. Apparently, that’s because he occasionally votes in favor of recognizing migrants’ due process rights and for their fair and impartial treatment under the immigration laws.

 

For example, although generally known as a low-key “middle of the road jurist,” Vice Chair Adkins-Blanch authored the key BIA precedent Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014). There, the BIA recognized the right of abused women, particularly from the Northern Triangle area of Central America, to receive protection under our asylum, and immigration laws. That decision was widely hailed as both appropriate and long overdue by immigration scholars and advocates and saved numerous lives and futures during the period it was in effect.  It also promoted judicial efficiency by encouraging ICE to not oppose well-documented domestic violence cases.

 

Nevertheless, in a highly controversial 2018 decision, White Nationalist restrictionist Attorney General Jeff Sessions dismantled A-R-C-G-. This was an an overt attempt to keep brown-skinned refugees, particularly women, from qualifying for asylum. Matter of A-B –, 27 I&N Dec. 316 (A.G. 2018). Session’s decision was widely panned by immigration scholars and ripped apart by U.S. District Judge Emmet Sullivan, the only Article III Judge to address it in detail to date, in Grace v. Whitaker, 344 F. Supp. 3d 96 (D.D.C. 2018). Nevertheless, Matter of A-B- remains a precedent in Immigration Court.

 

In addition to the Malphrus announcement, sources have told “Courtside” that veteran BIA Appellate Immigration Judges John Guendelsberger and Molly Kendall Clark will be retiring at the end of December. While the current BIA intentionally has been configured over the past three Administrations to have nothing approaching a true “liberal wing,” Judges Guendelsberger and Kendall Clark were generally perceived as fair, scholarly, and willing to support and respect individual respondents’ rights, at least in unpublished, non-precedential decisions.

 

This was during an era when the BIA as a whole was moving in an ever more restrictive direction, seldom publishing precedent decisions favoring or vindicating the rights of individuals over DHS enforcement. Additionally, under Sessions and now Barr, the BIA has increasingly been pushed aside and given the role of “restrictionist enforcer” rather than “expert tribunal.” The most significant policies are rewritten in favor of hard-line enforcement and issued as “precedents” by the Attorney General, sometimes without any input or consultation from the BIA at all.

 

The BIA’s new role evidently is to insure that Immigration Judges aggressively use these restrictionist precedents to quickly remove individuals without regard to due process. Apparently, this new role also includes promptly reversing any grants of relief to individuals, thus insuring that ICE Enforcement wins no matter what, and actively discouraging individuals from daring to use our justice system to assert their rights. To this end, Barr’s six most recent judicial appointments to the BIA, part of an obvious “court-packing scheme,” are all Immigration Judges with asylum denial rates far in excess of the national average and reputations for being unsympathetic, sometimes also rude and demeaning, to respondents and their attorneys.

 

Indeed, adding insult to injury, Barr’s latest regulatory proposal would give a non-judicial official, the EOIR Director, decisional and precedent setting authority over the BIA in certain cases. This directly undoes some of the intentional separation of administrative and judicial functions that had been one of the objectives of EOIR.

 

Judge Guendelsberger was originally appointed to the BIA by the late Attorney General Janet Reno in 1995. However, as a member (along with me) of the notorious due process oriented “Gang of Five,” he often wrote or joined dissents from some of the BIA majority’s unduly restrictive asylum jurisprudence. Consequently, Judge Guendelsberger and the rest of the “Gang” were “purged” from the BIA by Attorney General John Ashcroft in 2003.

Reassigned to “re-education camp” in the bowels of the BIA, Judge Guendelsberger worked his way back and was “rehabilitated” and reappointed to the BIA by Attorney General Eric Holder in August 2009. This followed several years as a “Temporary Board Member,” (“TBM”). The TBM is a clever device used to conceal the dysfunction caused by the Ashcroft purge by quietly designating senior BIA staff as judges to overcome the shortage caused by the purge and irrational BIA “downsizing” used to cover up the political motive for the purge. TBMs are also disenfranchised from voting at en banc, thus insuring a more compliant and less influential temporary judicial workforce.

Judge Guendelsberger was the only member of the “Gang of Five” to achieve rehabilitation. However, his former “due process fire” was gone. In his “judicial reincarnation” he seldom dissented from BIA precedents. He even joined and authored decisions restricting the ability of refugees to qualify for asylum based on persecution from gangs that the governments of the Northern Triangle were unwilling or unable to control or were actually using to achieve political ends.

Indeed, his later public judicial pronouncements bore little resemblance to the courageous and often forward-looking jurisprudence with which he was associated during his “prior judicial life” with the “Gang of Five.” Nevertheless, he continued to save lives whenever possible “under the radar screen” in his unpublished decisions, which actually constitute the vast bulk of a BIA judge’s work.

Judge Kendall Clark was finally appointed to a permanent BIA Appellate Judgeship by Attorney General Loretta Lynch in February 2016, following a lengthy series of appointments as a TBM. Perhaps because of her disposition to recognize respondents’ rights in an era of sharp rightward movement at the BIA, she authored few published precedents.

However, she did write or participate in a number of notable unpublished cases that saved lives at the time and advanced the overall cause of due process. She also had the distinction of serving as a Senior Legal Advisor to four different BIA Chairs (including me) from 1995 to 2016.

Thus, the BIA continues its downward spiral from a tribunal devoted to excellence, best practices, due process, and fundamental fairness to one whose primary function is to serve as a “rubber stamp” for White Nationalist restrictionist enforcement initiatives by DHS. The voices of reasonable, thoughtful, scholarly jurists like Judges Guendelsberger and Kendall Clark will be missed.

They are some of the last disappearing remnants of what EOIR could have been under different circumstances.  Their departure also shows why an independent Article I Judiciary, with unbiased judges appointed because of their reputations for fairness, scholarship, timeliness, teamwork, and demonstrated respect for the statutory and constitutional rights of individuals, is the only solution for the current dysfunctional mess at EOIR.

PWS

11-07-19

 

 

 

COURTS: As BIA Continues To Squeeze The Life Out Of Pereira, 9th Circuit Finally Pushes Back — Why The “Lost Art” Of BIA En Banc Review & Dissent Is So Essential To Due Process & Fundamental Fairness!

Here are the head notes from two new BIA decisions distinguishing Pereira:

https://www.justice.gov/eoir/page/file/1164976/download

Matter of Lourdes Suyapa PENA-MEJIA, Respondent

27 I&N Dec. 546 (BIA 2019)

Decided May 22, 2019
U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals

Neither rescission of an in absentia order of removal nor termination of the proceedings is required where an alien did not appear at a scheduled hearing after being served with a notice to appear that did not specify the time and place of the initial removal hearing, so long as a subsequent notice of hearing specifying that information was properly sent to the alien. Pereira v. Sessions, 138 S. Ct. 2105 (2018), distinguished.
FOR RESPONDENT: Daniel A. Meyer, Esquire, Jackson Heights, New York
FOR THE DEPARTMENT OF HOMELAND SECURITY: Jonathan Graham, Assistant Chief Counsel
BEFORE: Board Panel: GUENDELSBERGER, GRANT, and KENDALL CLARK, Board Members
GRANT, Board Member, with the opinion

https://www.justice.gov/eoir/page/file/1164981/download

Matter of Renata MIRANDA-CORDIERO, Respondent

27 I&B Dec. 551 (BIA 2019)
Decided May 22, 2019
U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals

Pursuant to section 240(b)(5)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(b)(5)(B) (2012), neither rescission of an in absentia order of removal nor termination of the proceedings is required where an alien who was served with a notice to appear that did not specify the time and place of the initial removal hearing failed to provide an address where a notice of hearing could be sent. Pereira v. Sessions, 138 S. Ct. 2105 (2018), distinguished.
FOR RESPONDENT: Renee LaRosee, Esquire, Elizabeth, New Jersey
BEFORE: Board Panel: GUENDELSBERGER, GRANT, and KENDALL CLARK, Board Members
GRANT, Board Member, with the opinion

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But here’s some better news from a split 9th Circuit:

Isaias Lorenzo Lopez v. William P. Barr, 9th Cir., 05-22-19, published

15-72406

Before: Dorothy W. Nelson and Consuelo M. Callahan,
Circuit Judges, and Edward R. Korman,* District Judge. Opinion by Judge Korman;
Dissent by Judge Callahan
* The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation.

SUMMARY BY COURT STAFF:

SUMMARY** Immigration
Granting Isaias Lorenzo Lopez’s petition for review of a decision of the Board of Immigration Appeals, the panel held that a Notice to Appear that is defective under Pereira v. Sessions, 138 S. Ct. 2105 (2018), cannot be cured by a subsequent Notice of Hearing and therefore does not terminate the residence period required for cancellation of removal.
Lorenzo sought cancellation of removal, a form of relief from removal that requires that an applicant must, among other requirements, reside in the United States continuously for seven years after having been admitted in any status. However, under the “stop-time” rule, as relevant here, the service of a Notice to Appear under 8 U.S.C. § 1229(a) terminates an alien’s residence. In Lorenzo’s case, an immigration judge and the BIA found him ineligible for cancellation because his March 2008 Notice to Appear terminated his residence period before he had accrued the requisite seven years.
In Pereira v. Sessions, 138 S. Ct. 2105 (2018), the Supreme Court held that a Notice to Appear, as defined in 8 U.S.C. § 1229(a), must contain the time and place at which removal proceedings will be held to trigger the stop-time rule. The panel concluded that Lorenzo’s Notice to Appear
** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

LORENZO LOPEZ V. BARR 3
did not terminate his residence because it lacked time-and- place information.
However, because Lorenzo also received a subsequent Notice of Hearing that advised him of the time and place of his proceedings, the Attorney General argued that the Notice of Hearing cured the defective Notice to Appear and triggered the stop-time rule. The Attorney General relied on Popa v. Holder, 571 F.3d 890 (9th Cir. 2009), which held that a Notice to Appear that fails to include the date and time of an alien’s deportation hearing, but that states that a date and time will be set later, is not defective so long as a notice of the hearing is later sent to the alien.
The panel held that a Notice to Appear that is defective under Pereira cannot be cured by a subsequent Notice of Hearing, explaining that the plain language of the statute foreclosed the Attorney General’s argument and that Pereira had effectively overruled Popa.
The panel noted that the BIA reached a conclusion contrary to the panel’s holding in Matter of Mendoza- Hernandez, 27 I. & N. Dec. 520 (BIA 2019) (en banc), where, over a vigorous dissent, a closely divided BIA held that a Notice of Hearing that contains time-and-place information perfects a deficient Notice to Appear and triggers the stop-time rule. However, the panel declined to defer to that conclusion because: (1) the BIA acknowledged that Pereira could be read to reach a different result, and the courts owe no deference to agency interpretations of Supreme Court opinions; (2) the BIA ignored the plain text of the statute; and (3) the BIA relied on cases that cannot be reconciled with Pereira.
Thus, the panel concluded that, because Lorenzo never received a valid Notice to Appear, his residency continued

4 LORENZO LOPEZ V. BARR
beyond 2008 and, accordingly, he has resided in the United States for over seven years and is eligible for cancellation of removal.
Dissenting, Judge Callahan wrote that she does not read Pereira as holding that the notice of the time and place must be provided in a single document. Rather, Judge Callahan reads Pereira as allowing the Department of Homeland Security to cure a deficient notice to appear by subsequently providing a noncitizen with actual notice of the time and place of the removal proceedings, with the result that the stop-time rule is triggered upon the noncitizen’s receipt of the supplemental notice.

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Significantly, the Ninth Circuit majority recognized the “vigorous” dissent of Judge John Guendelsberger in Matter of Mendoza-Hernandez, 27 I&N Dec. 520 (BIA 2019), which was joined by Vice Chair Adkins-Blanch and Appellate Immigration Judges Cole, Grant, Creppy, & Kendall Clark. The Ninth Circuit essentially adopted the dissenters’ opinion, quoting at length:

The reasoning of the Supreme Court in Pereira . . . leaves little room for doubt that the Court’s decision requires us to follow the plain language of the Act that the DHS must serve a [8 U.S.C. § 1229(a)(1)] “notice to appear” that includes the date, time, and place of hearing in order to trigger the “stop-time” rule. The Court in Pereira repeatedly emphasized the “plain text” of the “stop- time” rule and left no room for agency gap- filling as to whether an Immigration Court can “complete” or “cure” a putative “notice to appear” by subsequent issuance of a “notice of hearing” that would trigger the “stop-time” rule on the date of that event. Quite simply, . . . a “notice of hearing” is not a “notice to appear” and, therefore, it does not satisfy the requirement that the DHS serve a [Section 1229(a)(1)] “notice to appear” that specifies the date and time of hearing, in order to trigger the “stop-time” rule.

16 LORENZO LOPEZ V. BARR
27 I. & N. Dec. at 540–41 (dissenting opinion) (footnote omitted).

 

Prior to the “Ashcroft Purge, “ completed in 2003, en banc opinions in precedents and “vigorous dissents” were much more frequent at the BIA. I know, because I frequently was among the dissenters, particularly in the latter days of my BIA career.

Well done dissenters! Bravo!

Given the more or less “built in pro-Government bias” of an administrative “court” captive within the DOJ, the dissents often contained important alternative viewpoints that sometimes were more in accordance with the law as later interpreted by the “real” Article III Courts upon judicial review. The en banc process also forced every BIA Appellate Immigration Judge to take a public position on important issues.

In that way, it promoted both transparency and accountability, as well as “putting into play” alternative interpretations and results that the majority otherwise would  “blow by.” Accordingly, it also promoted more rigorous analysis by the majority.

Ashcroft basically removed the “gang of dissenters” from the BIA while “dumbing it down” by mandating mostly “single member panels,” discouraging en bancs, and supressing dissents. Since that time, the quality of the BIA decisions has suffered, and the positions of most individual BIA judges on most precedent issues has become a “mystery.” Not surprisingly, the BIA jurisprudence post-Ashcroft has become very one-sided in favor of the DHS.

The “vigorous en banc dissent” in Matter of Mendoza-Hernandez was striking to observers as the first one in recent memory. And, clearly it made a difference. The lack of meaningful dissent at the BIA is one of many things that have degraded due process, judicial independence, and decisional quality  at EOIR since the “Ashcroft Purge.” Worse yet, Barr’s ludicrous “proposed regulations” would further “dumb down” the BIA process.

The importance of dissents and transparency in a legitimate judicial system can’t be overstated. That’s why we need an independent, Article I U.S. Immigration Court that does not answer to the Attorney General.

PWS

05-28-19

 

HON. JEFFREY CHASE ON HOW THE BIA “BLEW OFF” THE SUPREMES — Matter of BERMUDEZ-COTA, 27 I&N Dec. 441 (BIA 2018)  — Is The BIA Risking Docket Disaster To Please Sessions?

https://www.jeffreyschase.com/blog/2018/9/1/the-bia-vs-the-supreme-court

The BIA vs. the Supreme Court?

Although it hasn’t caught the attention of the public or the media, the Supreme Court’s June 21 decision in Pereira v. Sessions has inspired immigration lawyers this summer, giving reason to hope and dream.  Unfortunately, the case’s importance gets lost in the details to those not proficient in the field of immigration law.  The issue that the Supreme Court agreed to decide was a narrow one: whether a Notice to Appear (i.e. the document that must be served by DHS on the Immigration Court in order to commence removal proceedings) that lacks a time and a date of the initial hearing is sufficient to invoke the “stop-time rule” that would prevent a noncitizen from accruing the 10 years of continuous presence in the U.S. needed to apply for a relief from deportation called cancellation of removal.  If you are a layperson, I’m sure I’ve already lost you.  But read on, as what preceded doesn’t really matter for purposes of our discussion; the important part is yet to come.

BIA precedent decisions that are subpar in their rationale are often upheld by circuit courts because of something called Chevrondeference.  Chevron refers to a 1984 Supreme Court case requiring courts to defer to the interpretation of statutes by federal agencies that are specifically charged with administering the statute in question.  The Board of Immigration Appeals is a part of one of the agencies (EOIR) charged with administering immigration laws; therefore, under Chevron, its decisions are owed deference by the circuit courts, even if those courts disagree with the BIA’s decision or would have reached a different outcome themselves.  But before such deference is owed, the decision must pass a two-step test.  First, the reviewing court must find that the statute the BIA is interpreting is ambiguous.  This is important, because if the statute is clear on its face, there is no basis for the agency to have to interpret that which needs no interpretation.  Only if the court determines that the statute is in fact ambiguous does it apply the second step of the test, which is whether the agency’s interpretation is reasonable.

I’m pretty certain that I’ve lost even more readers in the preceding paragraph.  I thank those of you who are still with me for your patience.  In Pereira, the statute involved is section 239(a) of the Immigration and Nationality Act, which states what information the Notice to Appear (i.e. the document needed to commence removal proceedings) must contain.  In a 2011 precedent decision, the BIA had interpreted that statute to mean that the time and date of the initial hearing were not critical elements, and that their inclusion was not required to trigger the stop-time rule.  Six federal circuits accorded Chevron deference to the BIA’s interpretation.  The lone exception was the Third Circuit.  The Supreme Court agreed to hear the case to resolve this split.  In an 8-1 decision (in which even Justice Gorsuch, Trump’s appointee, joined the majority), the Court sided with the Third Circuit.  The Court explained that no Chevrondeference was due because the statute was crystal clear, as it said in no uncertain terms that a time and a date are among the information a Notice to Appear must contain.

Finally, here is the really important part.  In its decision, the Supreme Court stated that a notice that does not contain a time and date of hearing “is not a notice to appear” under section 239(a).  The highest court in the land did not say that it is not a notice to appear only for some narrow purpose; it bears repeating that it said without such information, the document is not a Notice to Appear.

Those of you who are still reading might feel let down about now.  You’re saying “That’s it?  Where is the big payoff I was promised?  I’ll never get those three minutes of my life back that I just wasted reading jibberish about some kind of stopping rule that I still don’t understand.”  So here is where I hope I make it worthwhile.  All of us immigration lawyers read the above sentence and instantly thought the same thing: if the Supreme Court just said that a notice without a time and date is not a Notice to Appear, than almost every one of our collective clients were never properly put into removal proceedings.  The Supreme Court decision mentioned that when asked what percentage of NTAs issued in the past three years lacked a time and a date, the government responded “almost 100 percent.”  There are presently close to 750,000 cases pending before immigration courts, and there were hundreds of thousands of cases already decided by those courts over the past 15 or 20 years that also involved NTAs missing the time and date.  And the courts are now going to have to find that nearly all of those proceedings were invalid.  Old removal orders will have to be reopened and terminated.  Almost all pending cases will have to be terminated.  Although DHS will at least intend to restart all of those hearings over by now serving each individual with an NTA that does contain a time and date, how long might that take to accomplish?  And even if they are placed into proceedings again, those who were previously denied relief get a second chance.  Perhaps this time with a different judge, a better lawyer, and more equities in their favor?

So in a year in which the Attorney General has tried to remake immigration laws to his own liking, and continues to assault the independence of the only judges he directly controls;  in which children have been unapologetically separated from their parents at the border, in which victims of domestic violence have been told the rapes and violent abuses they have suffered are will get them no protection in the U.S.A., Pereira allowed us to dream of pushing a “restart” button, a “do-over.”  Attorneys began filing motions to terminate.  The response of immigration judges was mixed, with some agreeing with the argument and terminating proceedings; while others said no, Pereira was only meant to apply to the narrow technical issue of the “stop-time” rule, and not to the broader issue of jurisdiction.

Of course, the BIA needed to weigh in on this issue.  I had no doubt that the Board would rule with the latter group and find that proceedings need not be terminated.  And of course, on Friday, that’s just what they did.  The response from the legal community has been one of outrage.  First of all, it normally takes 18 months or longer for the BIA to issue a precedent decision; it can sometimes take them many years.  Here, the Board issued its decision in two months.  As one commenter pointed out, it reads like a college freshman paper written at midnight.  Considering the importance of the issue, the Board truly abandoned its legal responsibility by cranking out such a poorly written decision that fails to address (much less adequately analyze) most of the major issues raised by Pereira.

While I could go on and on with what is wrong with the BIA decision (issued on a Friday afternoon before the Labor Day weekend, the better to sneak under the radar), I’ll just focus here on one point.  The decision (written by Board Member Molly Kendall Clark), cites the applicable regulation (8 C.F.R. section 1003.14(a)), which states that “Jurisdiction vests, and proceedings before an Immigration Judge commence, when a charging document is filed with the Immigration Court by the Service.”  As background, another section of the regulations defines “charging document” to include a “Notice to Appear.”  The documents in question here all purport to be Notices to Appear, and do not meet the definition of any other charging document described in the regulation.  Kendall Clark writes that the regulation does not specify what information must be contained in the charging document at the time it is filed with the Immigration Court, “nor does it mandate that the document specify the time and date of the initial hearing before jurisdiction will vest.”

Really?  Because the U.S. Supreme Court just said, very clearly, that a notice lacking a time and date of hearing is not a Notice to Appear.  How is it OK for the BIA to just ignore a crystal clear holding of the Supreme Court?

The answer is that in the mind of the BIA’s judges, the Supreme Court doesn’t have the ability to fire them, while the Attorney General does.  The other truth is that while BIA judges have been removed under Republican administrations for being too liberal, none has ever suffered any consequences under Democratic administrations for being too conservative.  Although I’m in the liberal camp, I’m not saying that the BIA is not entitled to reach a conservative conclusion.  But it can’t so blatantly disregard the law (in particular, a decision of the Supreme Court) out of self-preservation or political expediency.

The next step will be appeal of the issue to the various circuits.  In light of Pereira, there should be no Chevron deference accorded to the Board’s latest decision.  However, should another circuit split result, this issue may end up before the Supreme Court again.

Copyright 2018 Jeffrey S. Chase.  All rights reserved.

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

Here’s a copy of the BIA’s precedent decision in

Matter of BERMUDEZ-COTA, 27 I&N Dec. 441 (BIA 2018):

3935

Want to see a better, more logical approach that would have honored the Supremes’ reasoning in Pereira? Here’s a succinct, well-reasoned opinion from Judge Elizabeth Young of the San Francisco Immigration Court that refutes each ICE argument and shows why the BIA’s approach in Bermudez is likely to be rejected by at least some  Circuit  Courts.

IJ ORDER – SF IJ terminated under Pereira – very clear reasoning – Nameless

(Thanks to Professor Alberto Benítez of the GW Law Immigration Clinic for sending this along.)

That no BIA Appellate Immigration Judge was willing to argue the much more logical and legally defensible approach presented in Judge Young’s decision illustrates how little real deliberation or debate remains at today’s BIA. Basically, a deliberative tribunal that no longer dares or cares to publicly deliberate in setting precedents and that decides the vast majority of non-precedent cases as “panels of one.”

As Jeffrey points out, the BIA and ICE appear to be on self-created course for a potential “Pereira II.” That, in turn, could result in hundreds of thousands of cases being subject to remand or reopening for termination. On the other hand, if ICE just reserved the NTA now, as suggested at the end of Judge Young’s opinion, the whole problem could largely be avoided. Go figure!

Yet another example of how the backlog is unlikely to diminish as long as the Immigration Courts remain in DOJ, and particularly with Jeff Sessions as the AG.

PWS

09-02-18

A BIA WIN FOR THE GOOD GUYS! – MICHELLE MENDEZ & HER CLINIC TEAM GET REOPENING FOR ASYLUM APPLICANTS IN ATLANTA! (Submitted By Dan Kowalski at LexisNexis)!

From: Michelle Mendez [mailto:mmendez@cliniclegal.org]
Sent: Monday, February 19, 2018 10:00 AM
To: Artesia OTG <artesiaotg@lists.aila.org>
Subject: [artesiaotg] Good news — the BIA has issued a great unpublished decision on late-filed appeals! (Attached.)

 

Greetings,

The ASAP team of Swapna Reddy, Dorothy Tegeler, and  Liz Willis has done it again. With just a few days before her check-in with Atlanta ICE ERO, a mother reached out to us via our Facebook group. Taylor, Lee & Associates had represented her and accepted an order of removal without fighting her case. Many of us are familiar with this law firm having heard about or helped the families targeted in January 2016 by the Obama Administration who were also represented by this firm in the same manner. By “representation” I mean that the law firm did not defend her against removal before the IJ instead accepting an order of removal in exchange for seeking a stay of removal and promising an EAD.

When we learned her case involved the same “salvo conducto” practice by this law firm and that the mother had not actually consent to this practice, we knew we had to help this mother. But time was not on our side as her imminent check-in with Atlanta ICE EOR was supposed to be her last. After strategically considering our options, we rushed to prepare an untimely BIA appeal….a two-year untimely appeal. We prepared a stay of removal application and recruited a local advocate, Keith Farmer, to attend the Atlanta ICE ERO check-in with her and submit the stay. Keith handled the situation like a professional, and the mother was ultimately never detained at her subsequent check-ins at which Shana Tabak artfully accompanied her.

The BIA accepted the Notice to Appeal and issued a briefing schedule. We followed this with an emergency motion for a stay of removal with the BIA. While the Notice to Appeal was pending and we awaited the briefing schedule, we complied with the Lozada procedures and obtained a psych evaluation of the client thanks to Craig Katz, Elizabeth Singer, and Varsha Subramaniam. We reached out to Trina Realmuto and Kristin Macleod-Ball, who provided strategic advice and an amicus brief in support of our untimely appeal. Katie Shephard provided an invaluable declaration given her work on the cases of the families represented by this law firm and targeted in January 2016 by the Obama Administration who were taken to Dilley. Laura Lichter also pitched in with strategic feedback and sample filings given her tireless work on the January 2016 cases, and her input was essential. And, last but not least, we reached out to Bradley Jenkins andLory Rosenberg for their wisdom, who helped us to frame arguments in the most compelling way.

The BIA dismissed the appeal as untimely instructing us to file a Motion to Reconsider and Remand on the question of timeliness. As was done in five nearly identical cases involving this law firm, we asked the BIA to accept this late-filed appeal on certification, or in the alternative, equitably toll the notice of appeal deadline and remand the case for further proceedings before the Immigration Judge. The BIA decision is attached. Huge thanks to ASAP volunteer law student Mayu Arimoto for her assistance with this briefing. Of course, and as always, thanks to Ben Winograd for his filing assistance with the BIA.

The moral of this story is that defending the rights of immigrants is tough work. We battle inhumane policies, cowardly or openly authoritarian leaders, greedy representatives who fill their coffers with private prison money, negative public opinion, intentional and unintentional media misinformation, notarios/unauthorized practitioners of law, and even other attorneys who abandon their duty to zealously represent their vulnerable clients. But when competent and caring advocates join forces, we can do anything.

Michelle N. Mendez

Training and Legal Support Senior Attorney

Defending Vulnerable Populations Project Manager

Catholic Legal Immigration Network, Inc. (CLINIC)

Mailing Address: 8757 Georgia Avenue, Suite 850, Silver Spring, MD 20910

Physical Address: OPD, 217 E. Redwood Street, Suite 1020, Baltimore, MD 21202

Cellular Phone: 540.907.1761

Fax Number: 301.565.4824

Email: mmendez@cliniclegal.org

Website: www.cliniclegal.org

 

Save the date for CLINIC’s 20th annual Convening!

Defending hope and the American Dream

May 30 – June 1, 2018 | Tucson, AZ

cliniclegal.org/convening

 

Embracing the Gospel value of welcoming the stranger, CLINIC promotes the dignity and protects the rights of immigrants in partnership with a dedicated network of Catholic and community legal immigration programs.

 

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HERE’S A COPY OF THE (UNFORTUNATELY UNPUBLISHED) BIA DECISION BY APPELLATE IMMIGRATION JUDGE MOLLY KENDALL CLARK:

Redacted S-H-O BIA Remand

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

Congrats to Michelle and her CLINIC team for winning a great victory for fairness, Due Process, and the New Due Process Army!

This also reminds us that notwithstanding the pressure from the Sessions DOJ to turn the Immigration Courts and the BIA into an “assembly line” churning out more removal orders, every day talented, conscientious, hard-working jurists like Judge Kendall Clark and others like her in the Immigration Court System remain firmly committed to the original “Due Process Mission” and independent decision-making that were supposed to be the sole focus of EOIR (before the “politicos” intervened with their attempts to “game” the system against migrants to achieve DHS enforcement goals).

We need an independent Article I U.S. Immigration Court (including an Appellate Division) so that judges can do their jobs of unbiased, scholarly, independent, Due Process focused decision making without “quotas,” “performance evaluations,” directives from administrators not actively involved in judging, and other improper political interference!

 

PWS

02-19-18

 

 

ROGUE U.S. IMMIGRATION JUDGE IN CHARLOTTE, NC? — BIA TWICE ORDERS JUDGE TO FOLLOW PRECEDENT & GIVE DUE PROCESS TO ASYLUM SEEKER!

https://www.lexisnexis.com/legalnewsroom/immigration/b/immigration-law-blog/archive/2017/11/10/unpub-bia-asylum-remand-insists-ij-follow-the-law-nov-6-2017.aspx?Redirected=true

Dan Kowalski reports at LexisNexis Immigration Community (quoting Respondent’s attorney Humza Kuzma):

“We appealed to the BIA, stating that the IJ was ignoring the law of the case and his direct instructions from a higher court. As Hassan noted in his FB post, we included redacted cases from a FOIA request another attorney had conducted, showing the various instances in the past two years where the IJ had been remanded in asylum proceedings. Yesterday, we got the remand, which reconfirmed that the prior rulings in the case were vacated and relying upon them was in judicial error, and instructed the IJ to grant our client a completely new hearing with an open record, and issue a new decision.”

BIA PANEL: Appellate Immigration Judges Guendelsberger, Kendall Clark, Grant

OPINION BY: Judge Edward R. Grant

)****************************

Read the full report and the BIA’s unpublished opinion at the link.

  • Why wasn’t this decision published?
  • Why wasn’t this Immigration Judge who is showing contempt for the BIA, precedent, asylum seekers, and Due Process named in the decision (a technique used by Article III Courts to deal with recalcitrant Judges)?
  • Why wasn’t this case remanded to a different Immigration Judge?
  • Why don’t we see more precedent decisions from appellate panels like this one which appears committed to a fair application of asylum law and reigning in rogue judges like this one?
  • How would an unrepresented individual ever be able to vindicate his or her statutory and constitutional rights before a biased and abusive judge like this?
  • What can be done to improve merit selection procedures for U.S. Immigration Judges so that individuals who are biased against migrants, unwilling comply with orders of higher tribunals, and uncommitted to Due Process will no longer be placed in judicial positions?

PWS

11-11-17

DOUBT THAT THERE IS ANTI-ASYLUM BIAS IN THE STEWART (DETENTION CENTER) IMMIGRATION COURT? — Read This Outrageously Wrong IJ Decision (Fortunately) Reversed By The BIA!

Go on over to Dan Kowalski at LexisNexis Immigration Community to read this outrageous abuse of justice by a U.S. Immigration Judge!

Matter of K-D-H-, unpublished (BIA 10-05-17)

Here’s the link:

https://www.lexisnexis.com/legalnewsroom/immigration/b/immigration-law-blog/archive/2017/11/03/unpub-bia-asylum-victory-somalia-matter-of-k-d-h-oct-5-2017.aspx?Redirected=true

The BIA Panel that got this one right was:

Chairman/Chief Appellate Judge David Neal

Appellate Immigration Judge John Guendelsberger

Appellate Immigration Judge Molly Kendall Clark

OPINION BY: Judge Kendall Clark

Interestingly, this panel configuration seldom, if ever, appears in BIA precedent decisions. Nor are these Judges recorded as dissenting or commenting upon the BIA’s generally anti-asylum precedents, some of which almost mock the BIA’s leading precedent on the generous nature of asylum law following the Supreme Court’s decision in INS v. Cardoza-Fonseca: Matter of Mogharrbi, 19 I&N Dec. 439 (BIA 1987).

So, why are the Appellate Immigration Judges who appear to have a good understanding of asylum law that is much more in line with the Supreme Court, the U.S. Courts of Appeals, and the BIA’s own pre-2003 precedents “buried in obscurity?” Meanwhile, those Appellate Immigration Judges who evince a lack of  understanding of asylum law, the realities of being asylum applicants in the “purposely user unfriendly” Immigration Courts, or any visible sympathy for the plight of asylum seekers (even those who are denied under our overly technical legal standards often face life threatening situations upon return — some actually die — we just choose not to take the necessary steps to protect them) seem to be among the “featured” in BIA precedents? Do all of the BIA Judges really agree with every precedent. If not, why aren’t we seeing some public dialogue, debate, and dissent, as with every other collegial, deliberative court in America? What’s the purpose and value of a “deliberative court” that almost never engages in any public deliberation (about some of the most difficult and complex questions facing our nation)? Where’s the accountability if all BIA Appellate Judges are not recording their votes on published precedents?

As you read the BIA decision and the decision below of Judge Randall Duncan of the Stewart Immigration Court here are a few questions you might keep in mind:

  • Why doesn’t Judge Duncan cite any actual cases?  (He refers to “the Eleventh Circuit” with no specific citations.)
  • Why didn’t Judge Duncan follow (or even discuss) either the BIA’s precedent in Matter of O-Z- & I-Z-, 23 I&N Dec. 22 (BIA 1998) or the Eleventh Circuit precedent in De Santamaria v, U.S. Att’y Gen., 525 F.3d 999, 1008 (11th Cir. 2008) both of which discuss “cumulative harm” and would inescapably have led to the conclusion that this respondent suffered past persecution?
  • Why isn’t this a published precedent in light of Judge Duncan’s clear misunderstanding of the applicable asylum law and because of the notorious reputation of the Atlanta-Stewart Immigration Courts as an “asylum free zone.”
  • Why did Judge Duncan, a relatively new Immigration Judge (Nov. 2016), attempt to dispose of this case with an obviously inadequate “Oral Decision.”
  • What kind of asylum training did Judge Duncan get?
  • What would have happened if this individual had been unrepresented (as many asylum applicants are at Stewart)?
  • What steps have the DOJ and EOIR taken to improve the poor substantive performance of some Immigration Judges who ignore applicable legal standards and deny far too many asylum cases?
  • What will Jeff Sessions’s “more untrained Immigration Judges peddling even faster” do to due process and justice in a court system that is currently failing to achieve fairness and due process in too many cases?

Taking a broken system and trying to expand it and make it run faster is simply going to produce more unfair and unjust results. In other words, it would be “insanely stupid.” The Immigration Court system has some serious quality of decision-making, bias, consistency, and due process issues that must be solved before the system can be expanded. Otherwise, the system will be institutionalizing “bad practices” rather than the “best practices.”

PWS

11-06-17