CNN’S CHRISTIANE AMANPOUR INTERVIEWS NDPA SUPERSTAR 🌟 ANDREA MARTINEZ ON NEED FOR BIDEN’S IMMIGRATION REFORM BILL!

Amanpour & Martinez
CCN Anchor Christiane Amanpour & Immigration Attorney Andrea Martinez
SOURCE: CNN

Watch this video clip from CCN:

https://apple.news/A5fldUh3pTnWBhjhXUz6QOg

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Thanks for speaking out Andrea! Andrea is a former Arlington Immigration Court intern and one of the “charter members” of the NDPA. As captured on this video, she was assaulted by ICE while trying to assist her child client in reuniting with his mother! A civil suit against the agent involved is pending.

🇺🇸🗽⚖️Due Process Forever!

PWS

02-27-21

DUE PROCESS: 9th Cir. Might Be Afraid Of Trump, But U.S. Immigration Judge Scott Simpson Isn’t!

https://www.sandiegouniontribune.com/news/immigration/story/2019-06-14/judge-orders-dhs-to-keep-man-in-u-s-for-immigration-hearings-instead-of-returning-to-mexico

Morrissey
Kate Morrissey
Reporter, San Diego Union-Tribune

Kate Morrissey reports for the San Diego Union-Tribune and LA Times:

Judge orders U.S. to hold asylum seeker

Doubtful about his mental state, jurist prevents migrant from being sent to Mexico.

By Kate Morrissey

SAN DIEGO — An immigration judge has ordered the Department of Homeland Security to keep a Honduran asylum seeker in the United States while he waits for his court proceedings, instead of returning him to Mexico again under a Trump administration program.

Judge Scott Simpson said that after evaluating the man’s mental competence in a special hearing on Friday, he found that the man would need safeguards in his case to ensure due process. He ordered one put in place immediately: to remove the man from a program known officially as Migrant Protection Protocols and more widely as “Remain in Mexico.”

“I find that he lacks a rational and factual understanding of the nature of the proceedings,” Simpson said in issuing his order.

This is the first time that a judge has made such a ruling since the program was implemented in January, according to advocates who have been monitoring immigration court proceedings.

The program requires certain asylum seekers from Honduras, El Salvador and Guatemala to wait in Mexico while their cases progress in immigration court. The man has been waiting in Tijuana as part of the program for several months.

A Customs and Border Protection guide for officials implementing the program says that migrants with known physical or mental health issues should not be included.

“It’s a big deal that a judge recognized that there was a predatory nature to having put this person in the ‘Migrant Persecution Protocols,’ ” said Ian Philabaum of Innovation Law Lab, calling the program a name used by some immigrant rights advocates. “He wasn’t going to have a chance, and now he gets a chance.”

At the man’s first hearing in March, Simpson quickly became concerned that the man might have a mental competency issue that would make him ineligible for the program or require other protections. He ordered DHS to evaluate the man’s mental state.

Simpson asked government attorneys at each hearing after that whether the man’s mental state had been evaluated and whether the government believed he should continue to be included in the program.

Each time, the government attorney responded that the man should continue in MPP.

Still skeptical, Simpson told Immigration and Customs Enforcement attorney Dan Hua to be prepared to give details Friday about DHS’s evaluation of the man before he was returned to Mexico. When the judge came into court Friday morning, Hua was not able to answer that question.

“The government’s inability to provide that information is simply not excusable,” Simpson said. He gave Hua 30 minutes to find out answers.

Hua said immigration officials at the port of entry had evaluated the man each time he’d come to court, meaning that as of Friday, he’d been evaluated four times.

The attorney could not produce evidence showing what the evaluation observed or what standard it used when the judge pressed for more details.

Philabaum said that fact was significant.

“That assessment of the mental competency was performed on four different occasions, and on four different occasions, according to the U.S. government attorney, their assessment was he was perfectly competent to proceed with his immigration case representing himself,” Philabaum said. But in the man’s “first hearing, it took the immigration judge approximately two minutes to realize there was an issue of competency here.

“Whatever type of standard that CBP has instituted to assess the competency of an individual to be eligible, according to the immigration judge today, it has failed.”

DHS officials, CBP officials and Department of Justice officials did respond to a request for comment.

Simpson decided to do his own evaluation of the man’s mental state under an immigration court precedent known as the Matter of MAM.

He listed the rights that the man has, such as the right to present evidence and the right to question witnesses. He asked if the man understood his rights.

“Um, yes. I need more,” said the man through a Spanish interpreter. “I need more because here I only have some letters, some birth certificates. They’re not translated into English yet.”

“Sir, I’m the immigration judge in your case. It’s my job to decide whether you can stay in the United States,” Simpson said. “In your own words, tell me who am I and what’s my job.”

“I cannot understand you,” the man responded.

In the end, the man was only able to appropriately respond to simple questions such as the date and what city he was in. He told the judge he had not had much schooling and couldn’t read or write.

ICE later confirmed the man is pending transfer to the agency’s custody. He could be taken to an immigration detention facility or released “on parole” into the U.S. to a sponsor while he waits for his next hearing.

Simpson said that depending which option the government chooses, other safeguards may be necessary, including providing an attorney for him if he’s detained.

Morrissey writes for the San Diego Union-Tribune.

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Every day the human carnage mounts as the 9th Circuit continues to “sponsor” Trump’s illegal, deadly, and unconstitutional “Remain in Mexico Program.” Interesting how a few non-life-tenured Immigration Judges in San Diego and one courageous U.S. District Judge in the Southern District of California seem to be the only Federal officials interested in either the rule of law or the Due Process Clause of our Constitution. Go figure! 

Congrats to Judge Scott Simpson for standing up for the rule of law and the rights of the most vulnerable in the face of massive dereliction of duty by those higher up the line.

Sadly, unlike the 9th Circuit, Judge Simpson lacks authority to enjoin further violations of the law and human rights by the Trump Administration. How many more human beings will suffer, be wronged, and perhaps die as a result of the 9th Circuit’s complicity in scofflaw behavior having little or nothing to do with protecting our borders or any other legitimate policy end and everything to do with punishing and dehumanizing those who seek justice under our laws.?

PWS

06-17-19

MENTAL COMPETENCY HEARING: 9th CIR. CALLS OUT BIA FOR ERRONEOUS FACTFINDING AND FAILURE TO FOLLOW OWN PRECEDENT – CALDERON-RODRIGUEZ V. SESSIONS

16-70225-9th Competenc – y

Calderon-Rodriguez v. Sessions, 9th Cir., 01-03-18, published

COURT’S HEADNOTE:

The panel granted Henri Calderon-Rodriguez’s petition for review of the Board of Immigration Appeals’ decision, concluding that the Board in two related ways abused its discretion in affirming the IJ’s competence evaluation and determination.

First, the Board affirmed the IJ’s inaccurate factual findings, failing to recognize that the medical record upon which the IJ and Board heavily relied was nearly a year old, and that it may have no longer reflected Calderon’s mental state.

Second, the Board affirmed the IJ’s departure from the standards set out by the Board for competency determinations in Matter of M-A-M-, 25 I. & N. Dec. 474 (BIA 2011). Specifically, the panel concluded that the IJ did not adequately ensure that the Department of Homeland Security complied with its obligation to provide the court with relevant materials in its possession that would inform the court about Calderon’s mental competency. In this respect, the panel noted that, importantly, neither the IJ nor the Board recognized that, as DHS was providing ongoing medical care to Calderon as a detainee, it necessarily possessed additional relevant, but not introduced, medical records.

The panel remanded to the Board with instructions to remand Calderon’s case to the IJ for a competence evaluation based on current mental health reviews and medical records, as well as any other relevant evidence.

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

PANEL:  A. Wallace Tashima and Marsha S. Berzon,Circuit Judges, and Matthew F. Kennelly,* District Judge.* The Honorable Matthew F. Kennelly, United States District Judge for the Northern District of Illinois, sitting by designation.

OPINION BY: Judge Berzon

KEY QUOTE:

“First, the BIA affirmed the IJ’s inaccurate factual finding about the mental health evidence in the record. Neither the IJ nor the BIA recognized that the medical record upon which they heavily relied was nearly a year old, and that it may have no longer reflected Calderon’s mental state. Instead, the IJ referred to the medical record as an “updated” reflection of Calderon’s present mental health condition, and stated that the record showed that Calderon “[p]resently . . . is not exhibiting any active PTSD symptoms, suicide ideation, hallucinations, or psychosis” (emphasis added). Those findings as to Calderon’s condition at the time of the hearing were not supported by the year-old date on the mental health record. As these critical factual findings were made “without ‘support in inferences that may be drawn from the facts in the record,’” Rodriguez v. Holder, 683 F.3d 1164, 1170 (9th Cir. 2012) (quoting Anderson v. Bessemer City, 470 U.S. 564, 577 (1985) and citing United States v. Hinkson, 585 F.3d 1247,M1262 (9th Cir. 2009) (en banc)), they constituted an abuse of discretion.

Second, the BIA abused its discretion by affirming the IJ’s departure from the standards set forth in Matter of M-A-M-, 25 I&N Dec. at 480–81. See Mejia, 868 F.3d at 1121. While the IJ did “take” at least some “measures” to determine whether Calderon was competent, Matter of M-A- M-, 25 I&N Dec. at 480, she did not adequately ensure that DHS complied with its “obligation to provide the court with relevant materials in its possession that would inform the court about the respondent’s mental competency,” as required by Matter of M-A-M-. Id.

Importantly, neither the IJ nor the BIA recognized that, as DHS was providing ongoing medical care to Calderon as a detainee, it necessarily possessed additional relevant, but not introduced, medical records. There were, indeed, specific indications that there were later medical records not provided to the IJ or the BIA that could have reflected a deterioration in Calderon’s condition.”

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This unrepresented Respondent has been in DHS custody for going on six years! This case previously reached the Court of Appeals and was remanded at the DOJ’s request for the holding of a competency hearing. Yet, the BIA still did not take the time and care necessary to properly apply their own precedent on how to conduct mental competency hearings consistent with due process!

PWS

01-04-18

THE BIA ISSUED MATTER OF M-A-M- TO GUIDE IJS ON MENTAL COMPETENCY ISSUES — THE PROBLEM: THE BIA IGNORES ITS OWN PRECEDENT ACCORDING TO 9th CIR!

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/08/29/15-70155.pdf

Mejia v. Sessions, 9th Cir., 08-29-17 (Published)

PANEL: Susan P. Graber and Mary H. Murguia, Circuit Judges, and Edward J. Davila,* District Judge

OPINION BY: Judge Davila

Key Excerpt:

“Here, there were clear indicia of Petitioner’s incompetency. He has a history of serious mental illness, including hallucinations, bipolar disorder, and major depression with psychotic features. During hearings before the IJ, Petitioner testified that he was not taking his medications and was feeling unwell. He said he was experiencing symptoms of mental illness and felt a “very strong pressure” in his head. He had difficulty following the IJ’s questions, and many of his responses were confused and disjointed. Under In re M-A-M-, those indicia triggered the IJ’s duty to explain whether Petitioner was competent and whether procedural safeguards were needed. The IJ failed to do so. On review, the BIA noted that Petitioner suffers from serious mental illness and “was feeling unwell without his medication” during the proceedings before the IJ.

Nonetheless, the BIA concluded that remand was not warranted because certain procedural safeguards were in place—for instance, Petitioner was represented by counsel, he “presented testimony in support of his claims,” and he “provided his parents as witnesses.” But the BIA did not address the IJ’s failure to articulate his assessment of Petitioner’s competence and why these procedural safeguards were adequate.

The BIA abused its discretion by failing to explain why it allowed the IJ to disregard In re M-A-M-’s rigorous procedural requirements. See Alphonsus, 705 F.3d at 1044 (“It is a well-settled principle of administrative law that an agency abuses its discretion if it clearly departs from its own standards.” (internal quotation marks omitted)).We therefore remand to the BIA with instructions to remand to the IJ for a new hearing consistent with In re M-A-M-.”

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The problem of the BIA not applying its own precedents to protect migrants’ rights is hardly new. But, it’s likely to get worse as Sessions pushes his “captive court system” to churn out more removal orders faster with only lip service to due process.

Question: Why would a reviewing court have to direct the BIA to apply the BIA’s own precedent? So much for the BIA as a “guarantor of due process.”

Rather than “jacking up the numbers” to meet the Trump-Sessions removal agenda, the BIA needs to slow things down, assign more cases to three-member panels, and do the kind of careful judicial review and deliberation necessary to insure due process. It’s also pretty obvious that the staff has been instructed to “default to denial.” They need some training from academic experts in due process and asylum law.

Too much “inbreeding”  — too much agency lingo — too much DOJ political influence.  The effects are obvious. The BIA needs to be removed from the DOJ and re-constituted as an independent appellate court. Otherwise, the Courts of Appeals need to step in and force the BIA to do its job!

PWS

09-02-17