⚖️ EOIR: WHAT WORKS, WHAT DOESN’T — Why Hasn’t Garland Fixed The Basics? 🤯

1) WHAT WORKS

NDPA “Four Star General” ⭐️⭐️⭐️⭐️ Charles Kuck reports:

My partner Danielle Claffey won yet ANOTHER Russian Asylum case the belly of the beast Atlanta Immigration Court.  THIS is why lawyers are essential in asylum cases!

Danielle says:

Earlier this week, I had the great fortune of securing asylee status for a young Muslim girl from Russia, before an Atlanta immigration judge. Though she is young and was so quiet for the last year I was handling her case, in court, she was strong, confident, and provided vivid detail of what she went through for the entire 19 years of her life in Russia before fleeing for America. After the judge formally granted her asylee status, and the government waived appeal, the judge told her she was sorry for everything she went through in her home country. When the judge granted her case, and the interpreter translated the judge’s words, it was the first time I saw my client smile, followed by a big deep breath. She has carried a lot in her 21 years, but can now rest easy and pursue all of her dreams here in the U.S.

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Danielle M. Claffey, EsquirePartner Kuck Baxter LLC Atlanta, GA PHOTO: Kuck Baxter
Danielle M. Claffey, Esquire
Partner
Kuck Baxter LLC
Atlanta, GA
PHOTO: Kuck Baxter

Many congrats, Danielle, and thanks so much for sharing! With great representation, anything is possible, even in Atlanta!

THIS is actually the way Immigration Court could and should work on a regular basis from all involved! Teamwork for justice! Note that:

  • No appeal;
  • No petition for review;
  • No remand;
  • No “aimless docket reshuffling;”
  • No need to keep renewing work authorization;
  • Respondent feels welcomed and understood by U.S. justice system;
  • Respondent leaves courtroom on the way to a green card, eventual U.S. citizenship, and can fulfill full potential in society;
  • Models and rewards best practices and professional cooperation (by EOIR, ICE, and the private bar) in achieving “justice with efficiency;”
  • As Charles says, representation is essential; you bet; so, why hasn’t Garland worked WITH the pro bono bar, NGOs, and clinical educators to facilitate representation in every asylum case? (HINT: “Aimless Docket Reshuffling” and its derivative “Expedited Dockets” — both “Garland specialties” — are major, DOJ-created, impediments to effective representation and are particularly discouraging and problematic for pro bono representatives! 

2) WHAT DOESN’T WORK

Dan Kowalski reports for LexisNexis:

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca8-on-reasoned-decision-making-davis-v-garland

http://media.ca8.uscourts.gov/opndir/24/02/223262P.pdf

“The BIA erred in affirming the IJ. The entirety of the BIA’s analysis about the motion to reopen was that Davis “has not established that evidence of his mental health issues and of his past and feared harm if returned to Liberia are new, previously unavailable, or would likely change the result in his case.” This one sentence alludes to the elements of a motion to reopen, but does not explain how they apply to Davis’s case. Neither the IJ nor the BIA met the requirements of reasoned decision-making. … Without an adequate explanation, this Court cannot conduct a meaningful review of the BIA’s September 30, 2022 order. … This Court grants Davis’s petition for review in case no. 22-3262, denies the petition for review in case no. 23-1229, and remands for further proceedings consistent with this opinion.”

[Hats off to Colleen Mary Cowgill, Joseph N. Glynn, Elaine Janet Goldenberg, Keren Hart Zwick, Zachary Scott Buckheit, Golnaz Fakhimi, David R. Fine, Kira Michele Geary, Haarika R. Reddy, Cynthia Louise Rice and Kate Thorstad!]

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Congrats to the NDPA team from Immigration and Disability Law Scholars.

But, this is an example of how Merrick Garland’s DOJ is failing the basics of American justice! Note that:

  • Two levels of EOIR flunk “Judging 101” — badly;
  • Inappropriate “defense of the indefensible” (and easily correctable) by Garland’s DOJ (OIL) asserting semi-frivolous jurisdictional argument;
  • Wastes Court of Appeals time on something Garland could and should have corrected and prevented from reoccurring;
  • Failure to follow Circuit precedent by both EOIR and OIL;
  • Failure to apply established standards;
  • Likely use of mindless “any reason to deny boilerplate” at EOIR;
  • Generates needless motion to reconsider;
  • After four years, two IJ hearings, two administrative appeals, a motion to reopen, a motion to reconsider, a trip to the Court of Appeals, case remains unresolved;
  • Competent EOIR Judges could have reopened the case and ruled on the merits in less time and using fewer resources than trying to mindlessly avoid providing the respondent with a reasoned decision;
  • In a system with three million pending cases these types of easily avoidable, sophomoric mistakes from supposedly “expert” judges are repeated over and over again— not always caught and corrected — leading to denials of due process and fundamental fairness and promoting backlog-building “aimless docket reshuffling!”
  • What if the the wonderful team at “Immigraton and Disability Law Scholars” could devote 100% of their time to representing vulnerable individuals at merits hearings in Immigration Court rather than having to correct avoidable mistakes by EOIR and OIL?

After three years in charge of EOIR, why hasn’t Merrick Garland, a former Court of Appeals Judge nominated to the Supremes:

  • Cleaned house at EOIR;
  • Brought in new, expert, dynamic, due-process-focused leadership;
  • Institutionalized best practices (see example 1 above);
  • Attacked system-wide anti-immigrant culture, lack of quality control, and unprofessional decision-making that continues to plague this critical “retail level” of American justice (see example 2 above);
  • Fixed OIL so that it will stop undermining justice in America by raising specious arguments and defending indefensible EOIR mistakes in the Article III Courts?
Alfred E. Neumann
Merrick Garland’s “Alfred E. Neumann Approach” at EOIR: Indolent, inappropriate, ineffective!
PHOTO: Wikipedia Commons

It’s not rocket science; it doesn’t require legislation (although Garland certainly should have been publicly pushing for Article I); it just takes a laser-focused commitment to due process, fundamental fairness, best practices, and efficient delivery of justice from what continues to be America’s worst “court system!” 

Why that leadership and action isn’t coming from Garland is a question that everyone who cares about the future of American  🇺🇸⚖️ justice should be asking every day! Fix the fixable! Model the best! That’s “Good Governing 101!” 

 🇺🇸 Due Process Forever!

PWS

02-03-24

🇺🇸🗽⚖️😎 THERE’S STILL SOME INSPIRING NEWS TO REPORT: 1) CHICAGO PASTORS WELCOME BUSSES; 2) GW LAW CLINIC STUDENTS HELP NEW ARRIVALS; 3) W&M LAW CLINIC WINS 27 CASES; 4) NDPA STAR KIM WILLIAMS, ESQ, TRIUMPHS OVER GARLAND DOJ’S “NEXUS NONSENSE” IN 1ST CIR; 5) HRF’S ROBYN BARNARD CALLS OUT BIDEN’S THREAT TO TRASH ASYLUM; 6) CEO BILL PENZY LIKES & APPRECIATES IMMIGRANTS!

🇺🇸🗽⚖️😎 THERE’S STILL SOME INSPIRING NEWS TO REPORT: 1) CHICAGO PASTORS WELCOME BUSSES; 2) GW LAW CLINIC STUDENTS HELP NEW ARRIVALS; 3) W&M LAW CLINIC WINS 27 CASES; 4) NDPA STAR KIM WILLIAMS, ESQ, TRIUMPHS OVER GARLAND DOJ’S “NEXUS NONSENSE” IN 1ST CIR; 5) HRF’S ROBYN BARNARD CALLS OUT BIDEN’S THREAT TO TRASH ASYLUM; 6) CEO BILL PENZY LIKES & APPRECIATES IMMIGRANTS!

 

  1. Pastors Welcome Busses

Rebekah Barber reports for religionnews.com:

https://religionnews.com/2024/01/17/chicago-pastors-help-the-city-grapple-with-flood-of-migrants/

Chicago Pastors Welcome
Locals and migrants attend a banquet at First Presbyterian Church of Chicago on Nov. 30, 2023. (Photo by Max Li)

(RNS) — Chicago was already facing a homelessness crisis before Texas’ Republican governor, Greg Abbott, began directing thousands of migrants entering his state to Democratic bastions that had declared themselves migrant-friendly sanctuary cities.

Since the transfers began in April 2022, more than 20,000 migrants, many of them destitute Venezuelans, have arrived, and many Chicagoans have expressed concerns that the city’s resources are being drained and have accused government officials of failing to communicate about the migrants’ cost and their fates.

At the same time, advocates for the migrants, especially community organizers in more vulnerable neighborhoods, have pushed back against attempts to pit two marginalized groups against each other. These groups have stepped up to support the new arrivals and in many cases have found allies in local faith leaders.

. . . .

Black said the majority of community residents want to find a way to both support the migrants and build support for a part of Chicago that has been historically underserved and underresourced. At the banquet at First Presbyterian, a speaker from Southside Together Organizing for Power, a community organizing group, talked about what it means to have Black and brown unity.

“It’s basically founded on this idea that there’s no scarcity,” Black said. “Not only is there enough for everybody — for the asylum-seekers, and the historically disenfranchised populations of South Side Chicago.”

He added, “We have so much more to gain from our unity than from the division which is being manufactured and orchestrated by interests that don’t want these communities to get the resources they need.”

This article was produced as part of the RNS/Interfaith America Religion Journalism Fellowship.

2) GW Law Clinic Students Help New Arrivals

From Professor Alberto Benítez:

Newcomer Fair at Langdon Elementary for families who have recently arrived from Texas and Arkansas via bus

I report that today Immigration Clinic student-attorneys Raisa Shah, Jennifer Juang-Korol, and I participated in the Newcomer Fair that the District of Columbia Public Schools sponsored at Langdon Elementary for families who have recently arrived from Texas and Arkansas via bus, primarily Venezuelans living in DC shelters. We shared immigration and social services information, GW swag, and met lots of cute kids. We were the only law school that participated. Please see the attached. 

Professor Alberto Benitez
Professor Alberto Benítez & GW Immigration Clinic Student-Attorneys Raisa Shah & Jennifer Juang-Korol Staff The Table @ Newcomer Fair!

3) W&M Law Clinic Wins 27 Cases

Professor J. Nicole Medved reports on LinkedIn:

Over the holidays, the Immigration Clinic received approval notices in TWENTY-SEVEN applications that we’ve filed in the last calendar year. 🎉  Among those 27 approvals were approvals for #asylum, #lawfulpermanentresidency, #DACA, #TPS, and #workpermits. It has been so exciting to see–and share–the fantastic news with our clients, students, and alumni who worked on these cases!

Clinic students prepare Temporary Protected Status and work permit applications. (Spring 2023)
Clinic students prepare Temporary Protected Status and work permit applications. (Spring 2023)

4) NDPA Superstar Kim Williams Triumphs Over Garland DOJ’s “Nexus Nonsense” In 1st Cir

From Dan Kowalski @LexisNexis:

Major CA1 Victory: Pineda-Maldonado v. Garland

http://media.ca1.uscourts.gov/pdf.opinions/20-1912P-01A.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/major-ca1-victory-pineda-maldonado-v-garland

“Ricardo Jose Pineda-Maldonado (“Pineda-Maldonado”) is a native and citizen of El Salvador. He petitions for review of the decision by the Board of Immigration Appeals (“BIA”) that denied his application for asylum and claims for withholding of removal and protection under the Convention Against Torture (“CAT”). We grant the petition, vacate the BIA’s decision, and remand for further proceedings consistent with this decision.”

[Please read the entire 31-page decision.  It is a solid beat-down for the IJ and the BIA.  Hats way off to Kim Williams and team!  Listen to the oral argument here.]

Kim Williams
Kim Williams, Esquire
Rubin Pomerleau PC
PHOTO: LinkedIn

5) HRF’s Robyn Barnard Calls Out Biden’s Threat To Trash Asylum

Robyn Barnard
Robyn Barnard
Associate Director of Refugee Advocacy
Human Rights First
PHOTO: Linkedin

Robyn writes on LinkedIn:

Have been thinking a lot about this statement & questioning how we got here. Anyone who works in this space knows just how complicated our laws & system are, the challenges global crises present, all compounded by recent attempts to totally destroy our immigration system. We know this is hard. However, the President has had at his service very smart ppl, experts, not to mention those in NGO space w decades of experience who have provided him reams of recommendation papers from before he was elected President, all wanting to help him to succeed at making the immigration system more efficient, more fair, but I’d guess most also came out of 4 yrs of Trump wanting to ensure we treat ppl w dignity & respect their basic human rights. If only he would listen.

How did the President go from vowing to “restore asylum” & “stop kids in cages” to essentially trying to out-Trump Trump? I wish we had a President who had the political courage to stand by immigrants, to stand in public & declare why detention, border walls, & summary deportations don’t work, & to invest in humane & smart solutions. The truly enraging thing about this is he will never win in his gross political posturing despite throwing migrants under the bus, or more aptly–literally to the cartels–the Right will never be satisfied & now he has put himself on record as in favor of Trump’s policies. 

Shame. Shame on whoever had a hand in this hateful declaration and shame on the leader who put his name to it.

6) CEO Bill Penzy Likes & Appreciates Immigrants

Penzys Logo
Penzys Logo
FROM: Facebook

Penzy, CEO of Penzy’s Spices in Wauwatosa, WI (my home town — graduated from Tosa East in ‘66) writes:

And despite all the Republican anger, it really is okay to say you like what immigrants do and have always done for this country. So much hard work. So much tasty food. What’s not to like? They need somewhere their hard work can amount to something, and we have plenty of space, and more work to do than we can do ourselves..

Immigrants give us the chance to be kind, decent humans. Let’s be kind, decent humans.

Thanks for caring enough to cook and caring about so much more.

You are awesome,

Bill
bill@penzeys.com

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Even in a time of “politicos’ bipartisan national fear-mongering, irresponsibility, and trashing of human rights,” courageous NDPA “freedom fighters” still stand up for human dignity and the right to asylum! 

Three cheers for the good guys! 📣📣📣

🇺🇸 Due Process Forever!

PWS

02-28-24

☠️🤮🏴‍☠️ “NO EXCUSE,” SAYS NDPA MAVEN DEBI SANDERS AS NPR REPORTS THAT BIDEN ADMINISTRATION PLAYED “HIDE THE BALL” ON HORRIFIC CONDITIONS IN THEIR “NEW AMERICAN GULAG” (“NAG”)!  — Tom Dreisbach Reports For NPR On Yet Another Grotesque Failure By Garland, Monaco, Gupta, Clarke, & Prelogar To Do Their Jobs!

Gulag
Inside the Gulag
The legacy of Biden, Harris, Mayorkas, Garland, Monaco, Gupta, Clarke, Prelogar and others will be truly ugly for the abuses in the “New American Gulag” that Mayorkas continues to operate while DOJ aids cover up and inexcusably defends grotesque human rights abuses! What happened to the concept of integrity and ethics at DOJ?

https://www.npr.org/2023/08/16/1190767610/ice-detention-immigration-government-inspectors-barbaric-negligent-conditions

In Michigan, a man in the custody of Immigration and Customs Enforcement (ICE) was sent into a jail’s general population unit with an open wound from surgery, no bandages and no follow-up medical appointment scheduled, even though he still had surgical drains in place.

A federal inspector found: “The detainee never received even the most basic care for his wound.”

In Georgia, a nurse ignored an ICE detainee who urgently asked for an inhaler to treat his asthma. Even though he was never examined by the medical staff, the nurse put a note in the medical record that “he was seen in sick call.”

“The documentation by the nurse bordered on falsification and the failure to see a patient urgently requesting medical attention regarding treatment with an inhaler was negligent.”

And in Pennsylvania, a group of correctional officers strapped a mentally ill male ICE detainee into a restraint chair and gave the lone female officer a pair of scissors to cut off his clothes for a strip search.

“There is no justifiable correctional reason that required the detainee who had a mental health condition to have his clothes cut off by a female officer while he was compliant in a restraint chair. This is a barbaric practice and clearly violates … basic principles of humanity.”

. . . .

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

Many thanks to my friend Debi Sanders for sending this my way with her succinct, “says it all,” two-word comment! Read and listen to the full report at the link.

Debi Sanders
Debi Sanders ESQ
“Warrior Queen” of the NDPA
PHOTO: law.uva.edu

Yet one more example of the failed Attorney Generalship of Merrick Garland! Where is the integrity, decency, and adherence to the rule of law that we were promised from a former Federal Judge and Supreme Court nominee?  

Sure, the inhumanity flourished under the Trump regime! But, the last election was about a change and improvement, particularly in immigration. Garland’s performance on immigration, human rights, and racial justice should be a totally unacceptable to Dems!

🇺🇸 Due Process Forever!

PWS

08-17-23

🇺🇸⚖️🗽🧑‍⚖️ CONGRATULATIONS TO HON. KATHERINE E. (“KATE”) CLARK, NEWLY APPOINTED APPELLATE JUDGE AT THE BIA: Practical Scholar, Legacy Arlington Immigration Court Intern Alum, Former EOIR JLC, Georgetown Law Grad, AYUDA Supervisor, Hill Staffer, Civil Servant, Judge Clark’s Broad Background Appears “Just What The Doctor Ordered” For Failing & Flailing “Supreme Court of Immigration!”😎

Hon. Katherine E. Clark
Honorable Katherine E. Clark
Appellate Immigration Judge & Board Member
U.S. Board of Immigration Appeals
PHOTO: AYUDA website

Here’s the EOIR press release:

https://www.justice.gov/eoir/page/file/1593116/download

EOIR Announces New Appellate Immigration Judge

FALLS CHURCH, VA – The Executive Office for Immigration Review (EOIR) today announced the appointment of Katharine E. Clark as a Board Member of EOIR’s Board of Immigration Appeals (BIA).

The BIA is the highest administrative body for interpreting and applying immigration laws, having nationwide jurisdiction to hear appeals of decisions by adjudicators, including Immigration Judges.

Biographical information follows:

Katharine E. Clark, Appellate Immigration Judge

Attorney General Merrick Garland appointed Katharine E. Clark as an Appellate Immigration Judge in August 2023. Judge Clark earned a Bachelor of Arts, magna cum laude, in 2003 from Brown University and a Juris Doctorate in 2006 from Georgetown University Law Center. From 2022 to 2023, and 2007 to 2018, she served as a senior litigation counsel and trial attorney at the Office of Immigration Litigation, Civil Division, Department of Justice. From 2019 to 2021, she was a managing attorney at Ayuda in Silver Spring, Maryland, where she also handled cases on a pro bono basis. From 2018 to 2019, she was counsel for the U.S. Senate Judiciary Committee. From 2006 to 2007, she served as a Judicial Law Clerk at the Boston Immigration Court, entering on duty through the Attorney General’s Honors Program. Judge Clark is a member of the Maryland State Bar and the Pennsylvania State Bar.

— EOIR —

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Proud to say Judge Clark is a graduate of not only Georgetown Law (where I am an Adjunct), but one of many distinguished alums of the Legacy Arlington Immigraton Court Internship Program, established by my good friend and colleague Retired U.S. Immigraton Judge Mario Christopher Grant. I later inherited the “Mentor Judge” position upon Judge Grant’s retirement. Judge Clark is the first, hopefully of many, of those we mentored to be appointed to the BIA.

I am also a member of the Advisory Board at AYUDA, where Judge Clark worked as a supervisory attorney from 2019-21.

Judge Clark’s experiences give her an exceptionally broad, varied perspective. She has seen the system from the inside, at EOIR, as an NGO advocate assisting those struggling to deal with EOIR’s dysfunction and institutional unfairness, as an OIL attorney defending EOIR’s work, and as a legislative aide attempting to address the system’s many shortcomings.

She is well positioned to help the BIA and EOIR move beyond the flawed decision-making, unrealistic guidance, and backlog-building “Aimless Docket Reshuffling” that has plagued the Immigration Court System over the past two decades. Hopefully she will be a force in returning EOIR to it’s proper (though long-abandoned) vision of: Through teamwork and innovation, becoming the world’s best administrative tribunals, guaranteeing fairness and due process for all!

It’s far away from that now! But, there are some judges at EOIR like Judge Clark qualified and capable of leading a “due process renaissance” at the beleaguered tribunals. Whether and to what extent they will be able to do so remains to be seen.

Congratulations again and good luck to Judge Clark!

🇺🇸 Due Process Forever!

PWS

08-16-23

🤯 IMMIGRATION BUNGLES CONTINUE FOR GARLAND’S DOJ! 

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

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

1) Burden of proof  (9th Cir.)

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

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

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

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

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2) CIMT (11th Cir.)

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

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

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

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

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3) Sue sponte reopening (5th Cir)

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

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

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

[Hats off to Margaret “Meg” Moran!]

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

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

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

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

🇺🇸 Due Process Forever!

PWS

08-09-23

⚖️🤯 UNJUSTIFIED! — Federal Judge Charges USG $22,601 For DHS’s Scofflaw Actions & DOJ’s Mindless “Defense Of The Indefensible” In Colorado Detention Case! — Wanton Cruelty & Stubborn Stupidity Cost In More Ways Than One!

Dan Kowalski reports for LexusNexus Immigration Community: 

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/habeas-eaja-fee-victory-in-colorado-viruel-arias-v-choate

https://storage.courtlistener.com/recap/gov.uscourts.cod.217942/gov.uscourts.cod.217942.16.0.pdf

https://storage.courtlistener.com/recap/gov.uscourts.cod.217942/gov.uscourts.cod.217942.28.0.pdf

Michael Karlik, Colorado Politics, Aug. 2, 2023

“A federal judge has determined the government was unjustified in its fight to keep a woman locked up in an Aurora immigrant detention center while her deportation case proceeded.  U.S. District Court Judge Charlotte N. Sweeney ordered the federal government last September to hold a hearing to determine whether Brenda Viruel Arias should be released from custody. Sweeney found the circumstances of Viruel Arias’ 14-month confinement required a bond hearing to avoid infringing on her constitutional right to due process.  Shortly afterward, an immigration judge permitted Viruel Arias’ release after the government failed to prove she should remain behind bars.  Viruel Arias’ lawyers then requested $22,601 in attorney fees from the government. Under federal law, victorious parties in civil cases against the government may receive attorney fees if, among other things, the government’s position was not “substantially justified.”  On July 12, Sweeny agreed the government was not substantially justified in resisting a release hearing for Viruel Arias. In recent years, she observed, federal judges in Colorado have been sympathetic to non-citizens’ claims of unconstitutional confinement where the detention has exceeded one year. The government, as a party those cases, was aware of the judiciary’s attitude toward prolonged detention.  “(T)hey do not justify why they did not follow a clear legal trend,” Sweeney wrote.”

[Hats off to Conor Gleason and Laura Lunn!]

Connor Gleason, EsquireSenior Staff Attorney, Detention Program Rocky Mountain Imm Migrant Advocacy Network ("RIMAN") PHOTO: RIMAN
Connor Gleason, Esquire
Senior Staff Attorney, Detention Program
Rocky Mountain Imm
Laura Lunn, Esquire
Laura Lunn, Esquire
Director of Advocacy & Litigation
Rocky Mountain Immigrant Advocacy Network (“RMIAN”)
PHOTO: RMIAN

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RMIAN is “on a roll” these days. See, e.g., https://immigrationcourtside.com/wp-admin/post.php?post=34101&action=edit.

Garland’s DOJ, “not so much.” 

Here’s my favorite quote from Judge Sweeney’s decision: “At bottom, Respondents were not substantially justified in their pre-litigation and litigation practices because they disregarded a clear legal trend in the District and their own agency policies in the underlying action.”

Similar to the Trump Administration, the Biden Administration is wasting taxpayer money on cruel, unnecessary, expensive, illegal detention, and then squandering even more money on the arguably frivolous, and clearly mindless, defense thereof! Somebody should be asking Garland why?

🇺🇸Due Process Forever! 

PWS

08-05-23

⚖️☠️ BLOWING THE BASICS! — IJ Misapplies “Under Color Of Law Doctrine” In CAT Case; BIA Affirms; 10th Circuit Reverses, Blowing Away Garland DOJ’s BS “No Jurisdiction” Argument In The Process — “[The IJ’s] interpretation defies logic and the law.” — We Deserve Much Better From Dem AG!

Laura Lunn, Esquire
Laura Lunn, Esquire
Director of Advocacy & Litigation
Rocky Mountain Immigrant Advocacy Network (“RMIAN”)
PHOTO: RMIAN

Colorado AILA reports:

From: ColoradoAILA@groups.io <ColoradoAILA@groups.io> on behalf of Aaron Hall via groups.io <aaron=immigrationissues.com@groups.io>
Sent: Tuesday, August 1, 2023 2:29 PM
To: ColoradoAILA@groups.io <ColoradoAILA@groups.io>
Subject: [ColoradoAILA] Arostegui-Maldonado v. Garland

A HUGE congratulations to RMIAN and Laura Lunn on today’s 10th Circuit win in Arostegui-Maldonado v. Garland. I was lucky enough to be in the court at oral argument to watch Laura expertly navigate tough questions from a difficult panel and today the published decision came out holding (1) that the PFR filed within 30 days of the BIA order affirming the IJ denial of relief in withholding-only proceedings is timely filed and (2) that the IJ and BIA “defied logic and law” in misapplying the under-color-of-law element of the CAT claim, requiring remand.

Incredible work to Laura and all others involved!

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Aaron C. Hall

Senior Partner

Pronouns: he/him/his

12203 East Second Avenue

Aurora, CO 80011

Direct: 303.962.6630

www.immigrationissues.com

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

Folks, the IJ’s “reasoning to denial” in this case was beyond totally absurd! It’s an example of the type of judicial misconduct and incompetence that still flourishes in parts of Garland’s “any reason to deny” dysfunctional EOIR!

Russian Roulette
AG Merrick Garland thinks it’s fine to play “roulette” with human lives in his arbitrary, capricious, and dysfunctional EOIR. Those trying to help his victims obtain justice disagree! Is this REALLY the way things ran when Garland was on the D.C. Circuit? If not, why is it “good enough for Immigration Court?”
IMAGE: tvtropes

After more than two years of the Biden Administration under Garland, we still have not seen the type of systemic, merit-based “house cleaning” of biased and incompetent judges and the replacement of deadwood (and worse) at the totally unjust and dysfunctional EOIR that could and should have been a “day one priority” for Garland’s DOJ.

There is simply no excuse for this type of disingenuous, life-threatening performance by both EOIR and OIL under Garland’s deficient leadership! There are literally thousands of qualified experts out here who could have done a better job than the IJ and the BIA in this case!

It’s Garland’s job to get better judges on the EOIR bench — judges who will be fair, impartial, due-process focused, and experts in all facets of immigration and human rights laws! His failure to do his job is undermining our justice system and endangering human lives! How is this “OK?”

In the “real world,” folks who “can’t do their jobs” find themselves “out of a job!” Why is Garland’s DOJ an “exception,” with lives and the future of American justice on the line? Isn’t it past time to “just say no” to continuing to treat the ongoing national disgrace at EOIR as “just an afterthought” in the elitist, disconnected world of Garland’s DOJ, where the human lives being destroyed by DOJ’s failures are treated as “somebody else’s problem?”

🇺🇸 Due Process Forever!

PWS

08-03-23

 

 

 

🇺🇸⚖️🗽😎👍🏼 SPEAKING OUT FOR TODAY’S IMMIGRANTS: “[T]he ‘us’ we see used to be one of ‘them.’ We were a gift to this country and they will be too,” says Francesco Isgro, President & CEO of Casa Italiana Sociocultural Center, Inc., & Editor-in-Chief of Voce Italia! 😎

Francesco Isgro, Esquire
Francesco Isgro, Esquire
President & CEO of Casa Italiana Sociocultural Center, Inc.
Editor-in-Chief,
Voce Italiana
PHOTO: Linkedin
Francesco Isgro
Francesco Isgro

 

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

Thanks for speaking out so forcefully and articulately for some of the most vulnerable among us, Francesco, my long-time friend and former DOJ colleague! Your own continuing distinguished career in both the public and now private/NGO sectors is a testament to the irreplaceable contributions of generations of immigrants to our great nation!

I’m proud to say that Francesco started as a legal intern in the “Legacy INS” Office of General Counsel during my tenure as Deputy General Counsel. He was then selected to become a INS Trial Attorney (now known as ICE Assistant Chief Counsel) under the Attorney General’s Honors Program. He eventually went on to a stellar career as a Senior Litigator, editor, and “hands on” educator at the Office of Immigration Litigation (“OIL”) in the DOJ’s Civil Division.

I specifically remember two of Francesco’s innovative contributions while in the INS OGC: collecting, indexing, and publishing the legal opinions of the General Counsel (and Deputy General Counsel); and creating a Law Bulletin that our office could use to inform the scores of field attorneys nationwide under our supervision and direction. This later led to vastly improved attorney training programs developed by OGC Counsel Craig Raynsford, assisted by Fran Mooney (who later went on to become the Public Information Officer for EOIR while I was BIA Chair).

I remember being a guest lecturer in Francesco’s immigration class while he was teaching at Georgetown Law. He also went on to found and become Editor-in-Chief of OIL’s Immigration Litigation Bulletin, a highly-respected internal source of information and guidance for USG attorneys involved in immigration.

My experiences on the bench during 13 years at the (now “legacy’) Arlington Immigration Court mirrored Francesco’s observations. Those whom we were able to help regularize their status under the law were overwhelmingly hard-working individuals making important contributions got our nation and our economy.  Many had been doing it for years, sometimes even decades, and had USC children and even grandchildren who were “living proof” of the contributions of families who are given a chance to succeed.

Often, the “next generations” were present in court. I both congratulated them and asked them never to forget and appreciate the risks and hardships their parents had undertaken so that they could fulfill their complete promise in a free society! “Building America, one case at a time,” as I used to quip to the attorneys involved on both sides.

Francesco’s “Christian social justice message,” and his references to Pope Francis and the history of U.S. immigration also harken to a message I heard recently from Villanova University President Rev. Peter Donohue and Professor Michele Pistone during a recent educational event at Villanova Law. In his remarks, Rev. Donahue traced the founding of Villanova University to the response of Augustinian Friars to the burning of St. Augustine’s Church in downtown Philly during the Nativist Riots of 1844!

Professor Pistone credited Christian social justice teaching and the inspiration of Pope Francis for contributing to her success at the Villanova Immigration Clinic as well as the founding of the VIISTA Villanova Program to provide more well-qualified non-attorney accredited representatives to serve those in immigration proceedings. The VIISTA graduates whom I met and worked with on litigation skills over the two day seminar/celebration were totally impressive and dedicated.

Thanks again Francesco, for writing this inspiring piece setting forth fundamental truth about American immigration! That some in America shamefully and stubbornly refuse to recognize this truth doesn’t make it any less true, nor does it lessen the necessity to act upon it in moving our nation and our world forward toward a better future.

🇺🇸 Due Process Forever!

PWS

05-10-23

☠️ PERSECUTED IN CUBA, NIT-PICKED BY IJ 🤮, RUBBER-STAMPED BY BIA 👎🏼, REFUGEE FINALLY GETS SOME JUSTICE ⚖️ FROM 11TH CIR!😎

Kangaroos
“Any reason to deny, any reason to deny, any reason to deny, any reason to deny, any reason to deny, any reason to deny, any reason to deny . . . .”
https://www.flickr.com/photos/rasputin243/
Creative Commons License

Dan Kowalski reports for LexisNexis Immigration Community:

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/ca11-on-credibility-substantial-evidence-cuba-serra-v-atty-gen

CA11 on Credibility, Substantial Evidence, Cuba: Serra v. Atty. Gen.

Serra v. Atty. Gen.

“For decades, the authoritarian regime in Cuba has utilized its police force to intimidate and physically assault political dissidents and peaceful demonstrators throughout the island. Ignacio Balaez Serra, a Cuban immigrant seeking asylum in the United States, maintains he experienced this abuse first-hand after multiple arrests, imprisonments, and beatings by the Cuban police. Serra seeks review of the Board of Immigration Appeals’ (“BIA”) final order affirming the Immigration Judge’s (“IJ”) denial of Serra’s application for asylum, withholding of removal under the Immigration and Nationality Act (“INA”), and relief under the United Nations Convention Against Torture and Other Cruel Inhumane or Degrading Treatment or Punishment (“CAT”) (together, “Application”). The IJ denied Serra’s Application, finding Serra’s testimony “not credible.” In reaching this adverse credibility determination, the IJ cited two inconsistencies between Serra’s hearing testimony and Application. The first purported inconsistency dealt with the timing of Serra’s passage of a kidney stone; specifically, whether he passed it on the day he was beaten by Cuban police or several days thereafter. The second pertained to the number of countries Serra passed through en route to the United States; he listed ten countries in his written Application but later testified that he traveled through “about 11 or 12.” The IJ also reached his adverse credibility determination based on Serra’s perceived non-responsiveness to certain questions. On appeal, the BIA rejected the IJ’s finding that Serra was non-responsive but affirmed the IJ’s adverse credibility determination based on the two inconsistencies alone. After careful review and with the benefit of oral argument, we conclude the record lacks substantial evidence that would allow us to affirm the adverse credibility determination. We therefore reverse and remand. … [T]he IJ perceived two instances of non-responsiveness and two discrepancies in the record, resulting in an adverse credibility determination. The BIA rejected the IJ’s findings of non-responsiveness. Thus, the IJ’s adverse credibility determination hinged only on two purported inconsistencies in the record. But upon consideration of the totality of the circumstances, it is clear these inconsistences are unsupported by reasonable, substantial, and probative evidence—and thus cannot form the basis for an adverse credibility determination. Therefore, we grant Serra’s petition. We further vacate the BIA’s decision and the IJ’s opinion and remand this case to the IJ to rule on Serra’s applications for asylum, withholding of removal, and relief under CAT in accordance with this opinion. In doing so, the IJ must ensure that all relevant factors are considered—and the totality of the circumstances ascertained—before reaching a conclusion as to credibility. PETITION GRANTED, VACATED and REMANDED.”

[Hats off to Marty High and Joshua Carpenter and Jonathan Morton for amici American Immigration Council and Immigration Justice Campaign!]

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

Super congrats to NDPA superstar litigators Marty High, Joshua Carpenter, and Jonathan Morton. 

This respondent was a unrepresented before the IJ. Thus, we see another example of how EOIR routinely mistreats pro se litigants and why counsel is a due process necessity even in a very straightforward asylum case like this. Obviously, here, the IJ played the role of “co-counsel” to the ICE Assistant Chief Counsel. Yet, AG Garland has intentionally established “dedicated dockets” and bogus “adjudication timelines” that have been shown to reduce opportunities for representation and diminish the chances of success for asylum seekers.

To borrow a memorable phrase used by my late BIA colleague Appellate Judge Fred W. Vacca, “this pathetic attempt at an adjudication” by EOIR was actually defended before the Circuit by the DOJ’s OIL. The glaring problems with immigration and asylum adjudication at DOJ begin at EOIR, but by no means end there. 

This case isn’t “rocket science,” nor is it legally or factually complicated. It’s a very straightforward asylum grant to somebody persecuted by Cuba, where, in the words of the 11th Circuit, “[f]or decades, the authoritarian regime . . . has utilized its police force to intimidate and physically assault political dissidents and peaceful demonstrators throughout the island!”

I also note the statutory provision on credibility that the IJ completely bolluxed here and the “any reason to deny” BIA then “rubber stamped” (in part, even while noting that some of the IJ’s analysis was wrong) was part of the REAL ID Act, passed in 2005. That’s 15 years before the the IJ hearing in this case! Heck, I used to give training classes for incoming EOIR JLCs where decisions very much like this IJ’s were used as “teaching examples” of how NOT TO APPLY Real ID! EOIR not only isn’t making “progress,” it’s actually stuck in reverse!

Having spent eight years as an Appellate Judge at the BIA and having reviewed thousands of records, I know that when an IJ goofs up one part of the analysis it’s often indicative of an overall careless, flawed analysis that should be viewed with considerable skepticism. Yet, here the IJ’s “clear error,” acknowledged by the BIA, in basically inventing “unresponsiveness” doesn’t appear to have inspired the BIA to critically examine the rest of the adverse credibility ruling below. On the contrary, it appears to have spurred the BIA to find “any other reason to deny” despite the indication that this was an inaccurate and unreliable analysis by an IJ having a bad day.

It also appears from the Circuit’s decision that there might have been interpretation issues before both the IJ and the Asylum Office. That makes the IJ’s “cherry picking” and “excessive focus on insignificant testimonial inconsistencies” particularly egregious.

The 11th Circuit decision here was written by U.S. District Judge Rodolfo A. Ruiz II, SD FL, sitting by designation. Judge Ruiz is a Trump appointee. He was joined on the panel by Judge Jill Pryor (Obama) and Judge Charles R. Wilson (Clinton) of the 11th Circuit. Thus, apparently the abysmal performance of EOIR is one of the few things capable of uniting and creating “bipartisan agreement among Article III Judges!”

Perhaps Senator Gillibrand is right, and she will be able to obtain sufficient bipartisan support for her Article I Immigration Court bill, which would remove this system from the DOJ’s chronic mismanagement. See https://immigrationcourtside.com/2023/02/17/⚖️🗽-teas-coffee- Because the current situation at EOIR, the continuing indifference to injustice, and its damage to human lives and the law is totally unacceptable! 

Also, what about the legal and judicial resources consumed on this and similar cases? Wouldn’t it be great if both the USG and the private sector could “redeploy” them to making the immigration justice system work, rather than correcting sophomoric, yet life threatening, errors? (Admittedly, describing the errors made by DOJ attorneys at all three levels here as “sophomoric” could be viewed as a slight to sophomores everywhere.)

Not only is EOIR’s “any reason to deny” system patently unjust, it’s a colossal waste of public resources! “Bureaucracy 101” — “Get it right at the initial level of the system.” 

Of course the battle here hasn’t concluded. The remand gives EOIR yet another opportunity to screw up. Given EOIR’s current indifference to quality and fairness, I wouldn’t count on them to “get it right this time around” — even with Judge Ruiz basically providing them with the correct answer!

🇺🇸 Due Process Forever!

PWS

02-20-23

🏴‍☠️ AMERICAN OUTLAWS: THE CONTINUING SAGA OF EOIR’S FLAWED DECADE-LONG QUEST TO DENY PROTECTION TO HONDURAN WOMAN — LATEST CHAPTER: BIA Rebuked By 1st Cir. For Not Complying With Court Order!

Outlaws
BIA panel gets ready to “gun down” — in “cold blood” —  another meritorious appeal by immigrant! Court orders are no match for this gang that “shoots from the hip.”
PHOTO: Republic Pictures (1957), Public Domain

Dan Kowalski reports from LexisNexis Immigration Community:

CA1 on Evidence…Round 2! – Aguilar-Escoto II

Aguilar-Escoto II

“For the second time, petitioner Irma Aguilar-Escoto, a native and citizen of Honduras, asks us to vacate the Board of Immigration Appeals’ (“BIA” or the “Board”) rejection of her claim for withholding of removal. When this case was last before us, we vacated the BIA’s prior order and instructed the Board to consider the potentially significant documentary evidence submitted in support of Aguilar’s claim. See Aguilar-Escoto v. Sessions, 874 F.3d 334, 335 (1st Cir. 2017). Today, we conclude that the BIA again failed to properly consider significant documentary evidence. Consequently, we vacate the Board’s removal order and remand for further proceedings.”

[Hats off to Kenyon C. Hall, with whom Jack W. Pirozzolo, Sidley Austin, LLP, Charles G. Roth, National Immigrant Justice Center, and Carlos E. Estrada were on brief, for petitioner!]

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

This case is a microcosm of everything that’s wrong about EOIR, a “captive,” denial-biased “court” system operating within the DOJ, an enforcement agency within the Executive Branch, over three different Administrations — two Dem and one GOP! But, there is more to this story!

THE REST OF THE STORY:

In 2013, this respondent appeared before an IJ and presented a well-documented claim for withholding of removal to Honduras based on domestic violence. Among the respondent’s documentation were a psychological report, three police reports, a medical report from Honduras, a protection order from a Honduran court, the respondent’s declaration, and affidavits from family members. In the first flawed decision, in 2014, the IJ denied the claim.

The respondent appealed to the BIA. In another flawed decision, entered in 2016, the BIA denied the appeal. In doing so, the BIA denied an asylum claim that the respondent did not make and ignored key documentary evidence that went to the heart of the respondent’s claim. This suggests that the BIA merely slapped a “form denial” on the case which reflected neither the nature of the case below nor the actual record before them. Immigration practitioners say this type of performance is all too common in the dystopian world of EOIR.

Consequently, the respondent, represented pro bono by NDPA stalwart Carlos E. Estrada, a solo practitioner, sought review in the First Circuit. That petition succeeded! In 2017, the First Circuit vacated the BIA’s erroneous decision and directed the BIA to redo the case, this time considering the material, independent evidence of persecution that the BIA had previously ignored.

At this point, the respondent and her attorney had every reason to believe that their ordeal was over and that justice, and potentially life-saving protection, was “just around the corner.” But, alas, those hopes were dashed!

The BIA botched it again! In 2018, in what appeared to be one of the BIA’s “standard any reason to deny” opinions, the BIA purported to “affirm” the 2014 flawed decision of the IJ. In doing so, “the BIA erred by failing to follow this Court’s [1st Circuit’s] instruction to independently consider on remand the documentary evidence and to determine whether that evidence sufficed to establish past persecution.” Basically a “polite description” of “contempt of court” by the BIA.

Among the problems, the BIA failed to mention or evaluate one of the police reports that went directly to the basis for the BIA’s denial. Indeed, in a rather brutal example example of just how un-seriously the BIA took the court’s order, they erroneously stated that there were only two police reports. Actually, the record contained THREE such reports — since 2013!

Faced with the need for yet a second trip to the First Circuit, pro bono solo practitioner Carlos Estrada was “stretched to his pro bono limits.” Fortunately, the amazing pro bono lawyers at Sidley Austin LLP and National Immigrant Justice Center (“NIJC”) heeded the call and assisted Estrada and his client in their second petition for review.  

With help from this “team of experts,” for the second time, the respondent “bested” EOIR and DOJ in the Circuit! While conceding that the BIA had errored in not complying with the court order, OIL, now under the direction of Dem A.G. Merrick Garland, advanced specious “alternative reasons” for upholding the BIA’s second flawed decision. These were emphatically rejected by the First Circuit! That court also noted that the (supposedly “expert”) BIA had applied the wrong legal standard in the case!

A rational person might think that after nearly a decade, this “charade of justice” would finally end, and the respondent would get her long-delayed, thrice-erroneously-denied relief. But, that’s not the way this dysfunctional and disreputable system works (or, in too many cases, doesn’t).

The First Circuit “remanded” the case to EOIR a second time, thus giving the BIA a totally undeserved THIRD CHANCE to improperly deny relief. Who knows if they will, or when they might get around to acting. 

But, within Garland’s dystopian system, which lacks quality control, doesn’t require recognized expertise in human rights from its “judges,” and tolerates a BIA dominated by Trump-appointed appellate judges known for their records of hostility to asylum and related forms of protection from persecution and/or torture, a result favorable to the respondent, within her lifetime, is far from guaranteed.

As Attorney Carlos Estrada summed it up to me, “I just couldn’t do it [the second petition for review] pro bono by myself.  I’m a solo practitioner.  Such a waste of time and effort.” 

Indeed, Garland’s failure to institute even minimal standards of due process, fundamental fairness, impartiality, expertise in his EOIR “court” system is unfairly stretching scarce pro bono resources beyond the limits, as well as denying timely, often life-saving or life-determining justice to individuals. 

In a fair, functional, professional system, Estrada, Sidley Austin, and NIJC could be helping others in dire need of pro bono assistance. The respondent could have been enjoying for the last decade a “durable” grant of protection from persecution instead of having her life “up in the air” because of defective decision-making at EOIR and ill-advised “defenses” by OIL. The system could be adjudicating new cases and claims, instead of doing the same cases over and over, for a decade, at three levels of our justice system, without getting them right.  

If you wonder why Garland’s broken EOIR is running an astounding 2.1 million case backlog, it’s NOT primarily because of the actions of respondents and their lawyers, if any! It has much to do with “Aimless Docket Reshuffling,” in “full swing” under Garland, incredibly poor judicial administration by DOJ/EOIR, poor judging by too many incumbents who lack the necessary expertise and demonstrated commitment to due process and fundamental fairness, poor administrative and judicial practices, inadequate training, and a toxic “culture of denial and disrespect for immigrants’ rights” that has been festering for years!

Do YOU think that sagas like this represent a proper approach to “justice in America at the retail level.” I don’t! But, incidents like this occur on a daily basis at EOIR, even if most escape the public spotlight! 

“Out of sight, out of mind!” But, sadly, not so for the individuals whose lives are damaged by this system and their long-suffering attorneys, whose plights continue to be studiously ignored by Garland and his lieutenants. (Has Garland EVER offered to meet with the private, pro bono bar to find out what really is happening in “his” courts and how he might fix it? Not to my knowledge!)

Hats way off to Carlos E. Estrada, Esquire; Kenyon C. Hall, Jack W. Pirozzolo, and the rest of the folks at Sidley Austin, LLP (I note that Sidley generously has provided outstanding pro bono briefing assistance to our “Round Table” in the past); and Charles G. Roth and his team at the National Immigrant Justice Center for this favorable outcome and for insuring that justice is done. Garland and the Dems might not care about justice for persons in the U.S. who happen to be migrants, but YOU do! That, my friends, makes all the difference in human lives and in our nation’s as yet unfulfilled promise of “equal justice for all.”

🇺🇸 Due Process Forever!

PWS

02-10-23

☠️🤮🤯 HOW CAN JUDGES WHO DON’T KNOW WHAT TORTURE IS FAIRLY PREDICT ITS FUTURE PROBABILITY? — THEY CAN’T! — 1st Cir. “Outs” EOIR’s CAT Denial Conveyor Belt!

Torture
“Just a little unpleasantness, harassment, and even basic suffering,” nothing to worry about, say Garland’s EOIR judges! Too many EOIR judges still operate in an “alternate reality” where legal rules, humanity, logic, and common sense are suspended!
Wood engraving by A.F. Pannemaker after B. Castelli. Creative Commons Attribution 4.0 International license.

Hernandez-Martinez v. Garland, 1st Cir.

http://media.ca1.uscourts.gov/pdf.opinions/21-1448P-01A.pdf

. . . .

In March 2014, Hernandez-Martinez was on his way to work when two men approached him, demanding money and threatening to kill him if he did not pay. Hernandez-Martinez did not know who the men were. The men told him that they knew where he lived and would harm him or his wife if he did not comply. They also instructed him not to go to the police.

Hernandez-Martinez went to the police later that day. Two police officers told Hernandez-Martinez not to be afraid because they would “take matters into their own hands,” and they offered to drive him home. Instead, they delivered him to the men who had threatened him earlier. The men hit Hernandez-Martinez in the face, cut his waist with a knife, burned his right foot with motorcycle exhaust, dragged him, repeated their threats, and beat him senseless. The police appeared to know his assailants and laughed while the men were assaulting him. Hernandez-Martinez recovered consciousness in a hospital, where he stayed for three or four days. When he had sufficiently recovered, he promptly fled to the United States to join his wife and then four- or five- year-old son, who had already made the journey.

. . . .

The IJ’s reasons are not at all clear. She more or less simply stated the elements of a CAT claim and asserted that Hernandez-Martinez did not establish those elements without specifying which elements were found wanting, or why.2 In addressing the asylum claim, the IJ did comment on the severity of harm inflicted on Hernandez-Martinez, stating that the abuse he suffered did not “rise above the level of unpleasantness, harassment, and even basic suffering.” We agree with the government that were this a supportable description of the harm inflicted, it would not support a CAT claim. We disagree, though, that the facts found support such a description. More to the point, as a matter of law we reject the implicit claim that the harm visited upon Hernandez-Martinez was not severe enough to qualify as torture.

. . . .

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

It’s actually pretty hard to get a “rise to the level of torture” case wrong as a matter of law! But three levels of Garland’s DOJ managed to pull it off! 

EOIR’s “holdover Ashcroft/Sessions/Barr era” deny every CAT claim approach seems to be running into problems in the “real” Federal Courts. Nothing that competent BIA Appellate Judges couldn’t solve. But, don’t hold your breath!

This absurdist CAT “adjudication” and its beyond absurd, unethical defense by OIL (“doesn’t even rise to the level of persecution,“ citing inapposite cases, gimmie a break) falls below minimum legal and professional standards in every conceivable way: at the IJ, the BIA (“summary affirmance”), and OIL!

That nearing the halfway point of the Biden Administration there is no Senate-confirmed Assistant AG running the all-important Civil Division, which supervises OIL, shows just how grossly deficient and indolent Dems’ approach to “justice at Justice” has been — both within the Biden Administration and in the Senate.

This stunningly defective, shallow, basically non-existent “analysis” by this IJ shows an out of control system where judges feel free to enter defective deportation orders in life or death cases without much thought and without fearing any accountability from the BIA. The latter obviously is an “any reason to deny” assembly line where clearly unacceptable performance by IJs is “rubber stamped” so long as the result is “deny and deport!”

What’s happening at Garland’s EOIR is analogous to  a patient going into the hospital for knee replacement, getting a lobotomy by mistake, and dying to boot. Yet, the “hospital administrator “ shrugs it off as just “business as usual,” a “minor mistake” — “good enough for surgery” and lets the team of quacks keep operating and killing folks!

Gosh, even lesser legal luminaries like Gonzalez and Mukasey finally “got” that EOIR was totally out of control and off the wall in the aftermath of Ashcroft’s “due process purge” and  mal-administration. They actually took some “corrective action,” even if largely ineffectual and mostly cosmetic.

It’s also no accident that a disproportionate amount of EOIR’s bad judging and docket mismanagement is inflicted on migrants of color, particularly those from Latin America and Haiti, and their representatives.  Much as the Biden Administration tries to ignore it, there is a clear connection between institutionalized xenophobia and racial bias in our immigration system and the problematic state of racial justice elsewhere in the U.S.

Contrast the truly abysmal, unacceptable performance by the EOIR judges and OIL attorneys in this case with the outstanding performance of Judge Brea Burgie and private attorney Alexandra Katsiaficas in the asylum grant from Denver I highlighted yesterday. https://immigrationcourtside.com/2023/02/06/%e2%9a%96%ef%b8%8f%f0%9f%97%bd%f0%9f%a7%91%f0%9f%8f%bb%e2%9a%96%ef%b8%8f%f0%9f%91%a9%f0%9f%92%bc-modeling-eoirs-potential-in-denver-judge-brea-c-burgie-attorne/.

Obviously, there is expert judicial talent on the EOIR bench and in the private sector that could be recruited and elevated to fuel a “due process, great judging, and best practices renaissance” in this dysfunctional, inherently unfair, and grotesquely mal-administered system! But, equal justice and minimal professional standards at EOIR can’t wait! Lives are going down the drain, and wasteful corrections and “Aimless Docket Reshuffling” further cripple this already “rock bottom” system every day.

Garland must finally “swap out the deadwood and under-performers” at the BIA and senior management at EOIR HQ in Falls Church. He needs to bring in the available,  proven talent from both Government and the private sector to lead and guide his mockery of a court system back to at least a minimal level of competence, professionalism, and accountability.

It’s well within Garland’s authority to “end this disreputable, deadly ‘clown show’ at EOIR!” Dems both inside and outside Government should be demanding reforms and accountability!

🇺🇸 Due Process Forever!

PWS

02-07-23

 

🤮🤥 “DUH” OF THE DAY: “Billy the Bigot” Barr Is An Unethical, Right-Wing Hack Who Abused His Authority @ DOJ In Service Of Trump Over America! — Durham Investigation Was “Abusive, Partisan, and Unhinged!“

 

Barr Departs
Lowering The Barr by Randall Enos, Easton, CT
Republished By License

https://nymag.com/intelligencer/2023/01/the-durham-probe-was-barrs-witch-hunt.html

Johnathan Chait
Johnathan Chair
Political Columnist
NY Magazine
PHOTO: Facebook

Johnathan Chait @ The Intelligencer:

There is an enduring pattern in American conservatism in which the right first develops a paranoid interpretation of the liberal Establishment, and then reverse engineers its own version of the monster it has imagined. Conservatives convinced themselves that the mainstream media and universities were mere propaganda organs, then created institutions like the Heritage Foundation and Fox News, warped reflections of their own overheated critique. The January 6 insurrection was, of course, in the mind of its participants, a “response” to the imagined vote-fraud conspiracy and its antifa/BLM shock troops.

John Durham’s investigation is a classic episode in this tradition. The American right first convinced itself that Robert Mueller and the deep state, using the cover of dispassionate professionalism, had launched a partisan witch hunt to smear Donald Trump. In response, it created a right-wing mirror image, as fervently partisan and unhinged as they believed their enemies to be.

The New York Times has a deeply reported narrative showing how Durham’s counter-investigation of the Russia probe, cooked up by William Barr at Donald Trump’s urging, was just as abusive, partisan, and unhinged as Trump’s defenders made Mueller out to be.

The purpose of special counsel is to wall off a politically sensitive investigation from the attorney general. But Durham, reports the Times, was working closely with Barr behind closed doors all along. The two Republicans dined and drank together, and came to share Barr’s Fox News–brained beliefs that Trump had been the victim of a conspiracy.

Rather than preventing Barr from meddling in a politicized investigation, this arrangement inverted that purpose and laundered Barr’s involvement through Durham’s putative independence. “At some point, some particularly ill-informed critic of the administration may try to paint Durham as a right-wing hack or Republican loyalist,” wrote National Review’s Jim Geraghty in a fawning profile, singling out the NAACP’s Sherrilyn Ifill for having the temerity to suggest Durham might have been compromised by serving Trump’s ends.

Durham and Barr kept failing to prove the deep-state conspiracy they imagined, but continued to press forward anyway. At one point they seized upon hacked Russian memos that intelligence analysts deemed obviously fake, instead treating them as a valuable intelligence trove, and tried to prove it out, even harassing one of the targets to obtain his emails (which contained nothing incriminating). It weirdly reflected the Trumpist accusation that Robert Mueller had been tricked into pursuing Russian disinformation.

As Durham kept failing to find support for the conspiracy he was pursuing, and which Barr kept floating in public, his deputies chafed at his obsession. Eventually, one of them resigned in protest when he brought charges against Michael Sussmann, a target of the right. As his former lieutenants expected, Durham’s case was defeated in court.

. . . .

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

Read the complete article at the link.

Immigration advocates didn’t need a NY Times investigation to tell you that Barr was corrupt! Biased anti-immigrant, anti-asylum “AG precedents;” BIA “Appellate Judges” appointed for their unusually high asylum denial rates and known hostility to migrants and their attorneys; Immigration Judges appointed without expertise in immigration and human rights, overwhelmingly from the ranks of prosecutors; busting the IJ union (“NAIJ”) for speaking out against DOJ’s politicized mismanagement; issuing an EOIR “Fact Sheet” full of lies, misrepresentations, and myths; appointing politicized managers at EOIR without judicial or due process qualifications; taking ethically questionable litigating positions in Federal Court; the list of Barr’s abuses of authority on immigration and human rights goes on and on!

AG Merrick Garland has made a few ameliorative changes. Some of the worst precedents have been overruled; some unqualified political senior executives been removed or reassigned; over time, judicial selection has been shifted to a more balanced, merit-based system that has resulted in the appointment as Immigration Judges of some widely-recognized experts, with experience representing individuals, and a demonstrated commitment to due process for all; “numerical quotas” for IJs have been eliminated. (Curiously, however, Garland “honored” 17 “transition” Barr judicial selections made under badly flawed selection criteria!)

Yet, overall, EOIR remains largely the disaster zone that Barr left behind. Trump-era anti-asylum Appellate Judges continue to dominate the BIA; many Trump-era IJs still misapply basic immigration legal standards and operate “asylum free zones;” management is weak; training is inadequate; dockets are out of control; respondents and their attorneys are treated unprofessionally; quality control is largely nonexistent; wildly inconsistent “refugee roulette” asylum adjudication remains; an enforcement-skewed culture of “any reason to deny and deport” continues to infect EOIR at all levels; “numbers” are emphasized over quality and fairness; and the DOJ’s OIL often defends indefensible EOIR decisions in Federal Court on the apparent rationale that “it’s only migrants’ lives at stake, so who cares!”

Unhappily, the Biden Administration has barely “scratched the surface” of the badly needed and long overdue common sense reforms needed at EOIR and the DOJ to put the Sessions/Barr abuses behind us and move forward! Barr was a bad AG; but, his ghost continues to haunt the DOJ and those seeking equal justice for all!

🇺🇸 Due Process Forever!

PWS

01-30-23

 

⚖️ THE GIBSON REPORT — 11-07-22 — Compiled By Elizabeth Gibson, Managing Attorney, NIJC — HEADLINERS: Analysts Agree: Immigrants Are “Political Toast” Regardless of Midterms’ Outcome — Neither Party Sees Legal Immigration, Human Rights, Rule of Law, Racial Justice As “Electoral Winners!” — Garland’s DOJ “On A Roll” In Courts Of Appeal, Snuffing Asylum Claims in 2d (2x), 3rd, 8th, & 9th Circuits!

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

 

Analysts Don’t Expect Significant Changes in Immigration Policy After the Midterms

VOA: The three analysts said that no one is willing to form a framework to write immigration legislation because they do not see an electoral advantage. See also Democrats Twist and Turn on Immigration as Republicans Attack in Waves; Canada plans record immigration targets amid labour crunch.

 

Attention Travelers: New Rules Will Require More Caution When Entering USA

Forbes: Evidently, USCBP is eliminating the passport entry stamp to streamline the entry process. So now, foreign nationals will only have access to the Form I-94 website as proof of their lawful immigration status.

 

Abrupt New Border Expulsions Split Venezuelan Families

NYT: The decision to expel Venezuelans under a pandemic-era policy that allows swift expulsions, previously applied mainly to Mexicans and Central Americans, has had the unintended effect of trapping many Venezuelan families on opposite sides of the U.S.-Mexico border. See also Tougher US Asylum Laws Trigger Drop in Venezuelan Migrants Traveling Through Panama; Migrants Encounter ‘Chaos and Confusion’ in New York Immigration Courts; Nearly 500 Venezuelans admitted to U.S., thousands approved via new plan.

Accounts of migrants’ documents being confiscated by border officials prompt federal review

CBS: The department confirmed the review when asked to respond to accounts from migrants who told “60 Minutes” that U.S. Customs and Border Protection (CBP) officials along the U.S.-Mexico border kept their documents, despite agency policy instructing agents to return migrants’ personal property unless they are fraudulent.

 

130+ Civil Rights Groups Call On President Biden To Include Immigrants In Pardon Process

NIJC: More than 130 immigration, criminal justice, and civil rights organizations released a letter today urging the Biden administration to include immigrants in the pardon process.

 

Over 100 Orgs Want Visits For Detained Immigrants Restored

Law360: More than 100 immigrant rights organizations are urging the Biden administration to fully reinstate visitation at immigration detention facilities, saying in a Thursday letter that visitation is crucial for detainees’ mental health and monitoring human rights violations.

 

ACLU condemns Texas Border Patrol agents’ use of pepper balls against protesting migrants

SA Current: The ACLU is condemning the actions of U.S. Customs and Border Protection agents allegedly caught on video firing pepper balls at a group of Venezuelan migrants protesting along the banks of the Rio Grande River near El Paso.

 

LITIGATION & AGENCY UPDATES

 

2nd Circ. Won’t Review Honduran Man, Son’s Asylum Request

Law360: The Second Circuit on Wednesday declined to review a decision denying an asylum application from a Honduran man and his son who claim they will be killed by gang members if they return home, finding the Board of Immigration Appeals properly reviewed the immigration judge’s decision.

 

2nd Circ. Won’t Revive Ecuadorian’s Asylum Bid

Law360: The Second Circuit on Tuesday backed the U.S. Board of Immigration Appeal’s decision to apply a persecution motive standard used in asylum requests to an Ecuadorian’s withholding of removal request, saying it was reasonable for the agency to do so.

 

3rd Circ. Nixes Asylum Over Evangelical Christianity Link

Law360: The Third Circuit on Tuesday knocked down a Guatemalan man’s asylum bid after concluding he failed to back up his fears of violence in the Central American nation based on gang recruitment efforts and his rejection of gangs due to his evangelical Christian faith.

 

8th Circ. Denies Family’s Asylum Bid Over Gang Fears

Law360: The Eighth Circuit has upheld a Board of Immigration Appeals ruling that denied a family asylum based on alleged gang threats for lack of evidence that the government of El Salvador could not or would not protect them.

 

9th Circ. Upholds Ruling Denying Bisexual Man Asylum

Law360: A Mexican citizen who said police and criminal gangs would torture him for being bisexual and suffering from mental illness if he is deported a third time

 

9th Circ. Backs Juvenile Immigrant Adjudication Deadline

Law360: The Ninth Circuit on Thursday backed an order requiring U.S. Citizenship and Immigration Services to adjudicate Special Immigrant Juvenile petitions within 180 days, rejecting the government’s argument that a lower court relied on “stale evidence” and disregarded hardship considerations.

 

States Cry Foul Over Steep Drop In Title 42 Haitian Expulsions

Law360: Republican state attorneys general accused the Biden administration of violating an injunction requiring it to repel migrants from the border under pandemic-era restrictions, saying a sharp drop in Haitian expulsions indicated the administration was selectively lifting the so-called Title 42 border block.

 

DHS Begins Limited Implementation of DACA Final Rule

AILA: On 10/31/22, DHS began limited implementation of the DACA final rule. USCIS will continue to accept and process applications for deferred action, work authorization, and advance parole for current DACA recipients. Due to litigation, USCIS will accept but cannot process initial DACA requests.

 

EOIR 30-Day Notice and Request for Comments on Proposed Revisions to Forms EOIR-42A and EOIR-42B

AILA: EOIR 30-day notice and request for comments on proposed revisions to Form EOIR-42A and Form EOIR-42B. Comments are due 12/5/22. (87 FR 66326, 11/3/22)

 

EOIR 30-Day Notice and Request for Comments on Proposed Revisions to Form EOIR-31A

AILA: EOIR 30-day notice-and-comment period for proposed revisions to Form EOIR-31A, which allows an organization to seek accreditation or renewal of accreditation of a non-attorney representative to appear before EOIR and/or DHS. Comments are due by 12/5/22.

 

CIS Ombudsman Introduces Revised Form for Requesting Case Assistance

AILA: The CIS Ombudsman’s Office updated the DHS Form 7001, Request for Case Assistance, used for requesting case assistance.

 

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

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

Supposedly, the main political issues right now are the economy and inflation. But, the economy and inflation are largely determined by the Fed, markets, global conditions, weather, and a certain amount of pure luck — all things beyond the direct control of the political branches of the USG.  

As mentioned by Chuck Todd on last Sunday’s NBC “Meet the Press,” many experts say that the most effective tool that the Administration and Congress have to improve the economy without triggering a recession is to increase legal immigration — sooner rather than later. But, neither party is interested. The GOP sees an anti-immigrant stance as a key to political success. And, the Dems are “actively disinterested” in the issue. So, the opportunity passes.

But, the reality is that, in the long run, no amount of shipping containers, walls, prisons, family separations, deportations, exclusions to death or despair, hate rhetoric, or restrictive legal roadblocks will halt the future flow of human migration, and not incidentally, the internal relocation in America as certain areas become “unlivable.” 

According to a government report published in today’s Washington Post:

 The U.S. can expect more forced migration and displacement

Already, the authors of Monday’s report said, major storms such as Hurricane Maria, as well as extended droughts that strained lives and livelihoods, have led people to leave their homes in search of more-stable places.

In the hotter world that lies ahead, they write, additional climate impacts — along with other factors such as the housing market, job trends and pandemics — are expected to increasingly influence migration patterns.

“More severe wildfires in California, sea level rise in Florida, and more frequent flooding in Texas are expected to displace millions of people, while climate-driven economic changes abroad continue to increase the rate of emigration to the United States,” the report finds.

Such shifts are inherently complicated and fraught.

Several Indigenous tribes in coastal regions, facing fast-rising seas, have already sought government help to relocate, but have struggled to do so without significant hurdles.

“Forced migrations and displacements disrupt social networks, decrease housing security, and exacerbate grief, anxiety and mental health outcomes,” the authors write.

https://www.washingtonpost.com/climate-environment/2022/11/07/cop27-climate-change-report-us/

Neither political party appears serious about addressing these migration realities — already underway. The ideas that we can wall ourselves off, invest in “sending countries,” detain, and deport our way out of migration are not  “solutions.”  

Failure to act boldly and expansively on legal immigration will create a huge class of exploitable, disenfranchised, extralegal residents and plenty of work for border agents, internal police, righty judges, and jailers. It will also be a huge boon to smugglers and cartels who basically will “own” the American migration franchise. But, in the long run, building a large “underground humanity” won’t be enough to offset the “downside” of lacking a robust, realistic, orderly, legal immigration process.

Eventually, those nation-states that figure out how to harness, welcome, and distribute the power of human migration will rule the future. Right now, America’s leaders, of both parties, seem wedded to a “sure to fail” approach of either opposing or ignoring the realities and unlimited potential of human migration. Too bad — for all of us!

🇺🇸 Due Process Forever!

PWS

11-08-22

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

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

 

Dan Kowalski reports from LexisNexis Immigration community:

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

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

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

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

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

 

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

cell/text/Signal (512) 826-0323

@dkbib on Twitter

dan@cenizo.com

Free Daily Blog: www.bibdaily.com

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

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

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

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

Go figure!

🇺🇸 Due Process Forever!

PWS

10-18-22

 

THE GIBSON REPORT — 09-19-22 — Compiled By Elizabeth Gibson, Managing Attorney, NIJC — LITIGATION: Avalanche Of Circuit Reversals Hits Garland’s “Star Chambers!”

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

 

Mexico Officials Abused 47% of Migrants Awaiting US Asylum

Bloomberg: Nearly half of US-asylum seekers returned to Mexico under the “remain-in-Mexico” program to await a US immigration court hearing said they’d been abused by local officials, according to a Human Rights First report released Thursday. See also Biden urges Mexico to take migrants under COVID expulsion order he promised to end.

 

FY 2022 Seeing Rapid Increase in Immigration Court Completions

TRAC: Immigration Court case completions have been rapidly increasing. During the first eleven months of FY 2022. Immigration Judges have closed over 375,000 cases — a historical record. If the pace continues, closures should top more than 400,000 by the end of the fiscal year. This is nearly three times as many case closures as last year. It is also roughly 50 percent higher than the previous high in FY 2019 during the Trump administration.

 

Migrant Crisis Puts N.Y. ‘Right to Shelter’ Law to the Test

NYT: Mr. McGuire cited the city’s failure on Monday to offer beds to 60 migrants who arrived at the men’s intake facility on East 30th Street in Manhattan, where homeless men are assessed when they first enter the shelter system — the first major such lapse in over a decade.

 

Thousands of Migrants Are Arriving in El Paso. They Have Nowhere to Sleep.

Vice: Since the beginning of September, over 1,100 migrants have been arriving every day in El Paso, more than 90 percent of them from Venezuela, according to the city’s CBP authorities. The influx has completely overwhelmed the city’s immigration shelters, and since most have no U.S. sponsor—support to get a visa to stay lawfully in the U.S.—immigration authorities have to release nearly 500 migrants a day into the streets of El Paso. And about 1,000 stay there to sleep every night.

 

Migrants Flown to Martha’s Vineyard Say They Were Misled

NYT: A fleet of buses arrived at St. Andrew’s Episcopal Church in Edgartown on Friday morning to ferry about 50 migrants — many of them dazed and a bit confused, but happy to be in the United States at last — to Joint Base Cape Cod, a temporary shelter. See also Texas sends another busload of migrants to Kamala Harris’s home; POLITICO Playbook: Breaking down DeSantis’ migrant stunt; DeSantis Flying Migrants to Martha’s Vineyard Is Part of a 60-Year-Old Segregationist Playbook.

 

The majority of Americans think migrants are ‘invading’ the U.S. Meanwhile, suffering at the border continues.

America: A majority of Americans—52 percent—now believe the nation is experiencing an “invasion” on the southern border, and 49 percent say that migrants are responsible for an uptick in U.S. drug overdoses because they are transporting fentanyl and other drugs.

 

Immigrants Keep Getting Lied To By Human Smugglers On Platforms Like Facebook, WhatsApp, and TikTok

BuzzFeed: The Tech Transparency Project found that human smugglers advertise their services on Facebook Marketplace and in local buy-sell groups, with third-party ads for bona fide businesses embedded within the posts that allow Facebook to make money every time a potential immigrant looks for smuggling services on the platform. Some of the listings even featured an ad for a scholarship run by Meta.

 

‘Never sleeps, never even blinks’: the hi-tech Anduril towers spreading along the US border

Guardian: Funded by Trump supporter Peter Thiel, the autonomous surveillance towers can detect a human from 2.8km away.

 

LITIGATION & AGENCY UPDATES

 

EOIR Final Rule on Limited Representation of Pro Se Individuals

AILA: EOIR final rule on limited representation of pro se individuals, which permits practitioners to provide document assistance to pro se individuals by entering a limited appearance through new Forms EOIR-60 or EOIR-61. The rule is effective 11/14/22.

 

CA2 on Evidence: Santiaguez v. Garland

LexisNexis: In denying his petition for CAT relief, the agency acknowledged that Santiaguez is an indigenous gay man and LGBT activist and that there is widespread violence against members of the LGBT community throughout Mexico. Nonetheless, the agency concluded that Santiaguez failed to satisfy his burden for CAT relief because he did not establish a likelihood that Mexican authorities would either torture him directly or acquiesce to his torture by private actors. In reaching this conclusion, the agency erred in several respects.

 

2nd Circ. Says Mexican Father Was Wrongly Denied Witnesses

Law360: The Second Circuit on Thursday revived a Mexico native’s bid to cancel his deportation on grounds that his children would experience extreme hardship without him, saying he should have been allowed live witness testimony to support his case.

 

3rd Circ. Finds Judge Stymied Asylum Seeker’s Right To Atty

Law360: The Third Circuit on Thursday in a precedential opinion resurrected a Dominican man’s request for asylum, finding that the lower courts interfered with his right to an attorney by denying a request to reschedule a hearing so that the lawyer he retained just 24 hours before would be better prepared.

 

CA4 On Corroboration: Garcia Rogel V. Garland

LexisNexis: One of those circumstances requiring review by a three member panel is when the IJ’s decision “is not in conformity with the law or with applicable precedents.” 8 C.F.R. § 1003.1(e)(6)(iii). Petitioner’s appeal of the IJ’s decision therefore should have been adjudicated by a three member panel of the BIA. … In conclusion, we grant the petition for review so that the IJ may reconsider the police report in light of In re Arreguin de Rodriguez, 21 I. & N. Dec. 38 (B.I.A. 1995).

 

6th Circ. Says BIA Ruling Has Its Hands Tied In Asylum Case

Law360: A split Sixth Circuit appellate panel has denied the asylum bid of a Salvadoran couple fleeing the gang MS-13, saying the U.S. Board of Immigration Appeals did not err when it found the couple had not shown the Salvadoran authorities were incapable of protecting them from the gang.

 

Split 9th Circ. Revives Indian Man’s Asylum Bid

Law360: The Board of Immigration Appeals did not go through with an analysis that would have shown an Indian man was persecuted for his political affiliation, a split Ninth Circuit panel ruled Wednesday in reviving the man’s asylum bid.

 

9th Circuit Revives Mexican Man’s Bid To Avoid Deportation

Law360: The Ninth Circuit on Friday held that a Mexican man who was tortured and harassed in his home country should get another shot at avoiding deportation, ruling that the Board of Immigration Appeals erred in how it went about overturning an immigration judge’s decision in the man’s favor.

 

CA9 on Standard of Review: Chavez-Escamilla v. Garland

LexisNexis: The BIA failed to correctly apply the clearly erroneous standard. While the BIA indicated disagreement with the IJ’s findings, it did not explain why the IJ’s decision was illogical, implausible, or without support. … Clear error review requires the BIA to “explain how these alleged errors showed lack of logic, plausibility, or support in the record on the part of the IJ.”

 

11th Circ. Says Private Dispute Doesn’t Support Asylum Bid

Law360: The Eleventh Circuit on Tuesday denied a petition from a Honduran man seeking asylum over claims that narcotics traffickers targeted his family, saying the dispute with the traffickers stemmed from a private “vendetta,” making him ineligible for asylum to avoid persecution.

 

Notice of Potential Class Membership, Al Otro Lado v. Mayorkas (PDF, 212.97 KB)

USCIS: This notice is intended to provide information for individuals who (1) may be an AOL PI Class Member; (2) had the “third-country transit rule” applied to their immigration case; (3) were ordered removed from the U.S. under an “expedited removal order”; and (4) currently reside in the United States.

 

Notice Of Appeal From A Decision Of An Immigration Judge – Comments Requested

EOIR: As part of EOIR’s “Access EOIR” initiative, the agency is seeking to revise its Form EOIR-26, Notice of Appeal from a Decision of an Immigration Judge, to include a section for unrepresented respondents to consent to have their case be considered for inclusion in the BIA Pro Bono Project.

 

USCIS 30-Day Notice and Request for Comments on New Version of e-Request Tool

AILA: USCIS 30-day notice and request for comments on a new version of USCIS’s e-Request Tool. Comments are due 10/17/22. (87 FR 56968, 9/16/22)

 

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

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

Avalanche
Merrick Garland ignores the existential threat from the avalanche of dangerous and defective decisions by his Trump holdover BIA. But, the rest of us see exactly what’s happening.
PHOTO: Creative Commons

I count no fewer than seven Circuit rejections of wrong-headed BIA decisions in Elizabeth’s report this week. The legal incompetence of EOIR under Garland is astounding! 

Disturbingly, several reversals involve outrageous denials of routine continuances. Garland runs a system where cases languish for years, sometimes decades, because of poor judicial decisions and inept docket management by EOIR. Yet, some IJ’s and the BIA are “programmed” to deny well-justified continuances in clear violation of Due Process. What a disgrace!

Garland has failed miserably to bring enough well-qualified judges and competent administrators into his dysfunctional Immigration Courts. Yet, he wanders around America giving clueless speeches about the wonders of the American justice system and the greatness of immigrants!

Meanwhile, a nationwide rebellion among practitioners is brewing against Garland’s latest round of mindless, due-process-denying “Aimless Docket Reshuffling.” It’s going to take more than a few cosmetic “regional stakeholder meetings” to get things back on track at EOIR. Everyone except Garland and his lieutenants knows that!

And, the continuing meltdown at EOIR helps “fuel” disgraceful stunts by nativist racists like DeSantis and Abbott.

🇺🇸 DUE PROCESS FOREVER!

PWS

09-18-22