Judicial Selection – Page 6 – immigrationcourtside.com

🤯 🤯 DOUBLE TAKEDOWN: 4th Circuit Slams BIA For 1) Mindlessly Trying To “Snuff” Allies From Afghanistan War☠️; & 2) Producing Incomprehensible Legal Gibberish 🤪 In Life Or Death Cases! — Two Recent Cases Show Deep Quality, Expertise Problems In Dem-Controlled “Courts” At The “Retail Level” Of U.S. Justice! 🤯🤬

1. Ben Winograd, Esquire, is an all-star appellate litigator who would have made a great BIA Chair/Chief Appellate Judge!

Dan Kowalski @ LexisNexis reports:

CA4 on Internal Relocation: Ullah v. Garland

https://www.ca4.uscourts.gov/opinions/221026.P.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca4-on-internal-relocation-ullah-v-garland

“The United States’ war in Afghanistan required regional allies willing to aid the effort. One such ally was Shaker Ullah, a Pakistani businessman who sold supplies to coalition forces. This invoked the wrath of the Pakistani Taliban, which demanded exorbitant payments from Ullah under threat of death. Ullah repeatedly refused, and the Taliban attempted to carry out its threat, promising to hunt him until it succeeded. After losing his business, home, and nearly his life, Ullah fled to the United States seeking asylum. The Immigration Judge and Board of Immigration Appeals both recognized that Ullah suffered past persecution entitling him to a presumption that the Taliban would continue to target him if he returned to Pakistan. But they agreed with the government that because Ullah lived in Islamabad (the capital of Pakistan) for a few weeks without the Taliban finding him, he could live in a new area of the country without fear of reprisal. We disagree. Ullah’s brief sojourn to Islamabad—where he never left the house— doesn’t rebut the presumption that a notorious terrorist organization continues to imperil his life. Since the record would compel any reasonable adjudicator to conclude Ullah faces a well-founded threat of future persecution, we grant Ullah’s petition for review, reverse the Board’s denial of Ullah’s preserved claims, and remand with instructions that the agency grant relief.”

[Hats way off to superlitigator Ben Winograd! Listen to the oral argument here.]

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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

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Tamara Jezic ESQUIRE Jezic & Moyse Fairfax, VA PHOTO: J&M

2. “Legacy” Arlington Immigration Court superstar Tamara Jezic runs circles around EOIR and OIL!

Dan Kowalski @ LexisNexis reports:

Multiple Failures Trigger Remand to BIA: Chen v. Garland

https://www.ca4.uscourts.gov/opinions/211371.P.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/multiple-failures-trigger-remand-to-bia-chen-v-garland

“Petitioner Zuowei Chen is a native of China admitted to the United States on a student visa in 2009. Chen now seeks review of a Board of Immigration Appeals order denying his applications for asylum, withholding of removal, and protection under the Convention Against Torture. If removed to China, Chen fears, he will be persecuted and tortured by Chinese authorities, who in 2008 allegedly imprisoned and violently beat him because of his Christian beliefs and practices. We find there are aspects of the agency’s decision that require clarification before we can meaningfully review Chen’s claims. Accordingly, we vacate the decision of the Board of Immigration Appeals and remand for further explanation, consistent with this opinion.”

[Hats off to Tamara Jezic! https://jezicfirm.com/attorneys/tamara-jezic/ Listen to the oral argument here.]

—

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

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Notably, and refreshingly, in Ullah, the 4th Circuit took the unusual step of directing the BIA to grant asylum, rather than just remanding for the BIA to screw it up again! In Chen, Trump appointee Circuit Judge Marvin Quattlebaum was part of the unanimous panel! Condemnation of EOIR’s deficient performance is uniting Article III jurists across ideological lines!

The GOP is “out for Garland’s scalp” for all the WRONG reasons! It’s actually Dems who should be demanding an accounting for his inexcusable, miserable, democracy-eroding (non)performance at EOIR!

Garland’s mess at EOIR isn’t “theoretical,” “academic,” or “speculative!” It’s ACTUALLY endangering lives, eroding democracy, and creating unnecessary chaos on a daily basis! His intransigence is also diverting HUGE amounts of resources that could be used to DEFEND American democracy, rather than seeking to hold a tone-deaf Dem Administration accountable!

In the meantime, Dems are fecklessly moaning and groaning about a lawless and ethics-free Supremes. Yet, a Dem Administration is operating a huge, nationwide “court” system presenting these same problems, in spades!♠️

And, the victims of EOIR’s substandard judging are overwhelmingly people of color, literally fighting for their lives in a dysfunctional system that the Biden Administration is unwilling and/or unable to fix. In these cases, the victims were fortunate enough to be represented by two of the “best in the business,” Ben Winograd and Tamara Jezic. But, too many others face this biased and unfair system unrepresented, a situation that Garland not only has failed to remedy, but has made worse in some ways. What “message, does this send, particularly to the younger cohort of “social justice” voters whom the Dems are counting on for the future?

Trial By Ordeal — Following the 2020 election, human rights advocates and experts expected and deserved dramatic, long overdue progressive improvements in justice at EOIR. Instead, Garland inexplicably has retained many of the most regressive features of injustice at EOIR, developed and reinforced during the Trump years. Frustration abounds, while justice for the most vulnerable among us suffers under a Dem Administration! Woman Being “Tried By Ordeal”
17th Century Woodcut
Public Realm
Source: Ancient Origins Website
https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160

How bad is EOIR under Garland? One informed observer put it this way:

BIA staff attorneys are rewarded for the number of signed decisions per month. With the present make-up of the Board, their only incentive is to crank out denials.

Dems love to talk about “change!” The GOP actually achieves it, even though the results are overwhelmingly negative, regressive, and existentially damaging to democracy! Something’s got to give here!

🇺🇸 Due Process Forever!

PWS

07-08-23

🤯🤯🤯 BACK-TO-BACK TRIPLE HEADERS FROM COURTSIDE! — 1) ⚖️👩🏽‍⚖️ SUPREMES TAP TWO GROUPS OF IMMIGRATION CASES FOR OCT ‘23 DOCKET! 2) Garland’s DOJ Continues To Take Positions “Least Favorable To Due Process For Immigrants” Before High Court, Even As 3rd Cir. Slams BIA On Notice, An Issue Unnecessarily “Headed Up” For The 3rd Time!🤯 3) Dems’ Fecklessness On Courts Takes Center Stage! ☹️👎🏼

Dean Kevin Johnson reports from ImmigrationProf Blog:

https://lawprofessors.typepad.com/immigration/2023/07/photo-courtesy-of-us-supreme-court-the-2022-term-ended-last-week-but-there-already-are-new-immigration-cases-on-the-supr.html

The 2022 Term ended last week but there already are new immigration cases on the Supreme Court’s docket for the 2023 Term.

Law 360 reports that the Supreme Court on the last day of the 2022 Term agreed to review 1) if Board of Immigration Appeals decisions denying cancellation of removal for exceptional hardship are subject to judicial review and 2) consolidated cases on the sufficiency of notice in removal proceedings.

Here are the cases:

Wilkinson v. Garland

Issue: Whether an agency determination that the statutory standard of “exceptional and extremely unusual hardship” is a mixed question of law and fact reviewable under 8 U.S.C. § 1252(a)(2)(D), or whether this determination is a discretionary judgment call unreviewable under Section 1252(a)(2)(B)(i) (and not subject to judicial review).

Campos-Chaves v. Garland (consolidated with Garland v. Singh).

The Court continues to deal with the ripple effects of Pereira v. Sessions (2018), which addressed the sufficiency of notice in removal proceedings.

Issue: Whether the government provides notice “required under” and “in accordance with paragraph (1) or (2) of” 8 U.S.C. § 1229(a) when it serves an initial notice document that does not include the “time and place” of proceedings followed by an additional document containing that information, such that an immigration court must enter a removal order in absentia and deny a noncitizen’s request to rescind that order.

KJ

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Aleksandra Gontaryuk ESQ
Managing Partner
AG Law
Newark, NJ
PHOTO: AG Law

From: Aleksandra Gontaryuk
Sent: Monday, July 3, 2023 4:29 PM
To: AILA New Jersey Chapter Distribution List <newjersey@lists.aila.org>
Subject: Precedential Decision — 3rd Circuit

https://www2.ca3.uscourts.gov/opinarch/212291p.pdf

Hot off the presses. No supplemental notice allowed to cure defective NTA unless there is a change or postponement of time and place in NTA. In this case, my client had a defective NTA, so 3rd Circuit ruled there can be no change or postponement from a defective NTA in the first place when DHS didn’t issue new NTA!! In absentia remanded.

[The case is Madrid-Mancia v. AG, available in full text at the above link.]

Aleksandra N. Gontaryuk, Esq.

AG Law Firm

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Alfred E. Neumann — Actually, Dems need an AG who WILL WORRY about systematic denials of due process, fundamental fairness, and failure to install best-qualified progressives in the disastrously dysfunctional Immigration Courts!
PHOTO: Wikipedia Commons

The notice issue presented by Campos-Chaves and Singh has been to the Supremes, albeit in different forms, twice before recently. The BIA/DOJ position has been emphatically “stuffed” by the Supremes both times! Yet, here we are again with the same backlog-enhancing, due-process-denying nonsense, this time from a Dem AG who was supposed to act like a “real” Federal Judge, not a “stooge” for DHS Enforcement.

The long and short of it is that this third trip to the Supremes on the notice issue was avoidable. That is, if Garland had appointed immigration experts, individuals not afraid to enforce the statute even where it benefits the individual, as it often will if properly and fairly interpreted, to the BIA, long a hotbed of anti-immigrant interpretations of law. Garland continues to enable a system “packed” with anti-immigrant and anti-asylum judges promoted under Trump and largely retained by Garland. This should outrage all progressives!

Dems continue to fecklessly “wring their hands” about the sharp right turn of the Supremes and the lower Article IIIs and the predictable decimation of individual rights. It all occurred in plain sight and with plenty of advance warning from the GOP as Dems diddled away their chances to stop it.

Dems aren’t going to be able to expand the Supremes, nor are term limits likely to happen. Both would require GOP support, which will not be forthcoming now that they have achieved their long-promised “takeover!” Discussing it is a waste of breath and brain cells. It also diverts attention from the Dems ongoing failure at EOIR.

The Dems best practical chance of reforming the Federal Courts would be to start “at the critical retail level” with what they control and could change tomorrow: The U.S.Immigration Courts housed (however improperly) in the DOJ. Right now they are an embarrassing mess of bad judging, anti-immigrant bias, worst practices, grotesque mismanagement, insurmountable backlogs, and hare-brained gimmicks.

Every day, in this and other forums, we see inspiring examples of the type of extraordinary progressive, creative, courageous legal talent available “in the marketplace.” They are the ones Garland should be recruiting and putting on the EOIR bench at both appellate and trial levels.

We would get an immediate, long overdue, improvement in the quality and efficiency of justice at EOIR. Correct, scholarly precedents would have carry-over into other areas of law and even gain international traction.

And, Dems would be building a “long bench” of “tried and true” candidates for Article III positions in the process! Who knows if and when a chance like this will come again? Yet, Garland and the Dems are squandering it, damaging democracy and humanity in the process! Talk about turning a “win-win” into a “lose-lose!” It’s something that Dem politicos excel at!

Dems failure to institute progressive reforms and bring in expert progressive judges at the court they do control makes the rest of their pronouncements on Federal Court reform meaningless babbling!

Tower of Babel — Dems “babble on” about Federal Court reform as GOP scores “real life” victories over individual rights and equity. It’s a waste of time, and “task avoidance” by Dems that diverts attention from the major Federal System they own 100% and operate (very badly): The U.S. Immigration Courts @ EOIR! — “Towel of Babel” By Pieter Bruegel The Elder
Public Domain

Pay no attention to Dems disingenuous complaints about the Supremes and “Trumpy” lower court judges until they demonstrate the ability and willingness to reform EOIR!

🇺🇸 Due Process Forever!

PWS

07-07-23

🤯COURTING FAILURE: GOP HAS “LEVERAGED” COURT CONTROL TO ENACT UNPOPULAR FAR-RIGHT ANTI-DEMOCRACY AGENDA BY FIAT — MEANWHILE, DEMS WON’T BRING PROGRESSIVE PRO-EQUAL-JUSTICE CHANGE TO COURTS THEY “OWN!”☹️ — The GOP Plays Hard Ball ⚾️, While Garland & Dems Play Whiffleball @ EOIR!🤮

Whiffle Ball — When it comes to playing “judicial hardball” with the GOP, Garland and the Dems are ill-equipped!
Creative Commons 3.0

Stephen Collinson writes at CNN:

https://www.cnn.com/2023/06/30/politics/conservatives-remake-america-courts

. . . .

In recent years, the [GOP’s] blind loyalty to Trump’s radicalism – especially his election lies – has caused it to even challenge the structure of democracy. A sense of national crisis and imminent political extinction, for example, ran through Trump’s rhetoric in the aftermath of the 2020 election, prompting some of his followers to use violence as a way of settling their political grievances on January 6, 2021.

Conservative Supreme Court decisions over the last two years have been especially hard for liberals to accept because they believe that the current majority is ill gotten.

The right’s dominance of the court happened in large part because then-Senate Majority Leader Mitch McConnell refused to even grant a confirmation hearing to Obama’s final pick for the top bench, Merrick Garland, who now serves as attorney general in the Biden administration. This allowed Trump to name Justice Neil Gorsuch as his first Supreme Court nominee in 2017. But McConnell later turned his back on his own questionable principle that Supreme Court nominees should not be elevated in an election year by rushing through the confirmation of Trump’s final pick, Amy Coney Barrett, in 2020 – which enshrined the current 6-3 conservative majority.

The move not only confirmed Trump’s status as a consequential president whose influence will be felt decades after he left office. It cemented McConnell among the ranks of the most significant Republican Party figures in decades and ensured conservative policies will endure even under Democratic presidencies and congressional majorities.

Recent revelations about questionable ethics practices by some of the conservative justices have further fueled fury about the legitimacy of the court among liberals.

But not all of the court’s recent decisions have infuriated the White House and Democrats. Earlier this week, for instance, liberals were hugely relieved when the court rejected a long-dormant legal theory that held that state courts and other state entities have a limited role in reviewing election rules established by state legislatures when it comes to federal elections. The so-called Independent State Legislature Theory, a favorite of the Trump campaign, had led to fears that Republican state legislatures in some states could simply decide how to allocate electoral votes regardless of results.

Still, the broad trajectory of the court – on issues including gun control, race, business, regulation, climate and many other issues – is firmly to the right.

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It’s no coincidence that the Trumpist far-right assault on democracy began during the 2016 campaign with unprovoked attacks on Mexican migrants and bogus claims about the border and immigration. It was skillfully, if corruptly, followed up with weaponization of the immigration bureaucracy and packing of the Immigration Courts by the likes of Miller, Sessions, Barr, and Cooch.

We have seen the GOP’s assault and dehumanization of migrants carry over into attacks on a wide range of disadvantaged groups in American society including African-Americans, Hispanic-Americans, Asian-Americans, Muslim-Americans, women, the LGBTQ+ community, and many others.

Although the Supremes have held that every “person” in the United States is entitled to due process under law, that concept is ludicrous as applied to the U.S. Immigration Courts, where anti-asylum, anti-immigrant, pro-DHS bias still drives much of the decision making, prosecutors appoint the judges and write the rules, the Government can change results that don’t match its political agenda, and individuals are on trial for their lives without a right to appointed counsel or many times even the ability to fully understand the proceedings against them. Predictably, the overwhelming number of individuals stuck in this abusive system are persons of color, many women and children!

This is “colorblind” American justice? Gimmie a break!

Although Dems acknowledged many of these outrageous defects in the Immigration Courts while campaigning for votes in 2020, once in power, they have shown little inclination to correct this unacceptable situation that undermines our democracy.

In particular, given a chance to reform the Immigration Courts, re-compete on a merit basis judicial positions filled under questionable procedures (at best) during the Trump Administration, bring in competent judicial administrators laser-focused on due process and best practices, and remake the Immigration Courts into a bastion of great progressive judging — driven by due process and equal protection, Garland and the Dems have whiffed. In that way they have largely followed the Obama Administration’s failure to take seriously due process for persons who happen to be in Immigration Court.

The failure of Dems to take immigrant justice seriously, and their inexcusable blown opportunity to reshape the Immigration Courts into a training and proving ground for the best and most qualified candidates for Article III judgeships ties directly into the anti-democracy shift in the Article IIIs and the GOP’s ability to carry out its right-wing agenda through a Supremes majority highly unrepresentative of Americans and our values.

An informed observer might well wonder “If the Dems are unwilling and unable to reform and improve the Federal Courts they do control — and apparently are ashamed of the progressive values they espouse — how will they ever counter the right’s anti-democracy agenda?”

🇺🇸 Due Process Forever!

PWS

07-02-23

🏴‍☠️ FOURTH FINDS BIA’S NEXUS ABUSE CONTINUES UNDER GARLAND 🤮 — Dem AG Permits His “Courts” To Engage In Specious “Any Reason To Deny” Misconduct That Artificially Suppresses Asylum Grants! ☠️ — Marvin A.G. v. Garland (published)!

Four Horsemen — BIA Asylum Panel In Action — Garland, a former Article III Appeals Judge, employs appellate judges who routinely misconstrue asylum law to wrongfully deny legal protection, thus artificially suppressing what should be much higher success rates for asylum seekers in a functional legal system properly applying asylum law! The law and precedents establishing a properly generous application of the well-founded fear standard for asylum are routinely ignored or disingenuously avoided by Garland’s biased anti-asylum “courts!” BIA panels routinely butcher “mixed motive” cases to deny asylum to deserving refugees!
Albrecht Dürer, Public domain, via Wikimedia Commons

Dan Kowalski reports for LexisNexis Immigration Community:

https://www.ca4.uscourts.gov/opinions/221499.P.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca4-on-nexus-marvin-a-g-v-garland

“Upon our review, we conclude that the Board abused its discretion by applying an incorrect legal standard in its nexus analysis for the petitioner’s asylum and withholding of removal claims. We also hold with regard to these two claims that the Board abused its discretion by arbitrarily disregarding the petitioner’s testimony about the threat of future persecution. However, we reject the petitioner’s argument that the Board abused its discretion with regard to his CAT claim. The Board provided specific reasons for finding the petitioner’s testimony insufficient to meet his burden of proof, and appropriately evaluated the evidence under the futility exception. We thus grant in part and deny in part the petition for review, vacate in part the Board’s order denying reconsideration, and remand for further proceedings consistent with this opinion. … We thus conclude that the IJ erred by applying an incorrect standard in the nexus analysis, and that the Board abused its discretion because it “compounded the [IJ’s] error by failing to recognize it.” Perez Vasquez, 4 F.4th at 223. In addition, both the IJ and the Board failed to address substantively the petitioner’s testimony about the threat of future persecution. … The Board thus applied the incorrect legal standard for the nexus analysis and arbitrarily disregarded relevant evidence. Accordingly, we hold that the Board abused its discretion in denying the petitioner’s motion to reconsider his asylum and withholding of removal claims, and we remand for the agency to “meaningfully consider [the petitioner’s] evidence” under the correct legal standard.”

[Hats off to Eric Suarez!]

Eric Suarez ESQUIRE
Partner
Sanabria & Associates
PHOTO: Firm website

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EOIR judges and the BIA routinely butcher “mixed motive” cases like this one! This endemic problem at EOIR badly distorts asylum adjudication nationwide, produces false statistics suppressing the significant number of wrongful asylum denials (particularly targeting asylum applicants of color for unfair, unjust adjudications), and refutes the Article III’s disingenuous treatment of the BIA as an “expert tribunal” entitled to Chevron deference. In that way, it seriously undermines the integrity of our entire judicial system!

In this case, counsel specifically pointed our the BIA’s errors in a timely motion to reconsider, only to have it “blown off” with basically fabricated boilerplate BS!

The petitioner appealed the IJ’s decision to the Board. After the Board affirmed the IJ’s conclusions and dismissed the appeal, the petitioner filed a motion to reconsider. The Board denied the motion, concluding that the IJ did not clearly err in its nexus determination, and reiterating the IJ’s conclusion that family membership was “incidental or subordinate” to the other reasons the gang targeted the petitioner, namely, for monetary gain and gang recruitment.

Another of my favorite parts of this decision addresses the BIA’s pronounced tendency to invent specious “non-protected” reasons for the persecution and then dishonestly characterize that at the sole or primary motivations.

The Board’s cursory conclusion that the gang had targeted the petitioner for “monetary gain and gang recruitment” does not remedy the Board’s error. Indeed, we fail to see how family membership necessarily was subordinate to these other motivations when the sole basis the petitioner presented for his fear of future persecution was that the gang would target him due to his relationships with his siblings.

Friends, this is NOT the competent, impartial, professional, expert adjudication that due process and fundamental fairness requires! Nor is it the improvement from Trump’s institutionalized White Nationalist approach to asylum and immigration promised by Biden and Harris during their 2020 campaign! It’s basically a “bait and switch” by Dems! Additionally, it sets a horrible example for Immigration Judges (many of whom lack relevant expertise in asylum law) and Asylum Officers nationwide.

Garland’s has refused to “clean house” and employ solely competent, unbiased, impartial asylum experts as BIA Appellate Immigration Judges, selected on a merit basis from among those possessing the requisite practical asylum expertise, temperament, and widely-acknowledged qualifications for these critically important judgeships.

Garland’s failure to perform his job, in turn, is having a deleterious effect on every aspect of our asylum, protection, and immigration systems and is undermining the entire rule of law. It also promotes false narratives about asylum seekers and inhibits effective representation of this vulnerable and deserving group. It’s wrong; it’s inexcusable, and it’s a “big deal!’

I leave you with this thought from an expert who actually practices before EOIR and understands what competent asylum adjudication should be:

We really do need better judges at the BIA. [Hope that this] decision that will make a dent in their current dysfunction.

Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges — Maybe HE should be in charge of selecting and training BIA Appellate Immigration Judges!

Or as my Round Table colleague Hon. “Sir Jeffrey” Chase suggests:

Maybe the Board should read my article on the proper test for nexus:

https://www.jeffreyschase.com/blog/2021/12/21/the-proper-test-for-nexus1

Great idea! But, don’t hold your breath!

SeniorCircuit Judge Barbara Milano Keenan wrote the opinion, in which Judge Thacker and Judge Heytens joined.

🇺🇸 Due Process Forever!

PWS

06-28-23

👎🏼9TH CIR. SAYS “NO CHEVRON DEFERENCE FOR YOU BIA!” — Misinterpretation Of Citizenship Removal Ground “Unmoored,” “Unreasonable,” “Untenable,” “Incoherent!” — (But, Evidently “Good Enough For Government Work” @ Garland’s EOIR!)

Dan Kowalski reports for LexisNexis Immigration Community:

CA9: BIA’s Application of Richmond Untenable, Unmoored, Unreasonable, Incoherent: Ramírez Muñoz v. Garland

June 26, 2023

(1 min read)

Ramírez Muñoz v. Garland

https://cdn.ca9.uscourts.gov/datastore/opinions/2023/06/26/21-70431.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca9-bia-s-application-of-richmond-untenable-unmoored-unreasonable-incoherent-ramirez-munoz-v-garland

“We must decide whether Ramírez’s conduct—lying to local authorities about U.S. citizenship—was for a “purpose or benefit under” a particular law. The BIA, relying on its Richmond decision, concluded that Ramírez lied about his citizenship “for the purpose of avoiding removal proceedings.” See In re Richmond, 26 I. & N. Dec. 779, 788 (B.I.A. 2016) (holding that a “purpose” under a law “includes the avoidance of negative legal consequences— including removal proceedings”). The BIA’s interpretation of § 1182(a)(6)(C)(ii)(I) is untenable. We agree with our sister circuit that “the BIA’s construction of the ‘purpose or benefit’ language [is] . . . ‘unmoored from the purposes and concerns’ of the statute.” Castro v. Att’y Gen., 671 F.3d 356, 370 (3d Cir. 2012) (quoting Judulang v. Holder, 565 U.S. 42, 64 (2011)). … We conclude that Richmond’s construction of “under” is unreasonable and do not afford it any deference. Consequently, we reject Richmond’s derivative holding that “[t]he term ‘purpose’ . . . includes the avoidance of negative legal consequences—including removal proceedings.” … We therefore grant the petition for review and remand to the agency to either grant Ramírez’s application for adjustment of status or explain, consistent with this opinion, why not.”

[Hats way off to Marco A. Jimenez!]

—

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

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Trust the BIA under Garland to come up with “teaching examples” of what’s wrong with EOIR!

Just last week we were discussing “Chevron deference” (a/k/a “Article III judicial task avoidance”) in my Immigration Law & Policy class at Georgetown Law. “Unreasonable interpretation” was one of the three ways we discussed for the Article IIIs to avoid giving Chevron deference to the BIA (the other two being “plain meaning” and “not your field of expertise”).

This is a classic (if rather brutal) example of the “unreasonable” exception to Chevron.

One reason why the “21st Century BIA” has become “unmoored” is that it is basically “tethered” to whatever DHS Enforcement wants and what appears to line up with an Administration’s “immigration enforcement agenda.” In other words, the BIA tends to interpret ambiguous statutes with “career preservation” rather than “best interpretations” in mind. That’s generally bad news for individuals seeking due process and fundamental fairness in life or death matters before EOIR!

As I recently pointed out, there is a BIA Appellate Immigration Judge position open for applications until July 5, 2023. See https://immigrationcourtside.com/2023/06/23/🇺🇸⚖️🗽👩🏽⚖️👨🏻⚖️-calling-ndpa-practical-scholars-experts-no/.

That’s a chance for NDPA “practical scholar/experts” to start counteracting what has been a two-decade downward spiral of due process, fundamental fairness, and best practices at this oft-ignored “life or death tribunal” with nationwide jurisdiction.

🇺🇸 Due Process Forever!

PWS

06-27-23

🇺🇸⚖️🗽👩🏽‍⚖️👨🏻‍⚖️ CALLING NDPA PRACTICAL SCHOLARS/EXPERTS: NOW’S YOUR CHANCE TO BECOME A BIA APPELLATE IMMIGRATION JUDGE AND HELP CHANGE THE TRAJECTORY OF AMERICAN LAW! — The “Supreme Court of Immigration” Needs Supremely Qualified, Expert Judicial Talent!

I want you — Don’t just complain about the awful mess @ the BIA! Get on the appellate bench and do something about it!
Public Domain

Summary

The Executive Office for Immigration Review (EOIR) at the Department of Justice (DOJ) is seeking a highly-qualified individual to join our team of expert professionals who serve as Appellate Immigration Judges.

This is an Excepted Service position, subject to a probationary period. The initial appointment is for a period not to exceed 24 months. Conversion to a permanent position is contingent upon appointment by the Attorney General.

Learn more about this agency

https://www.usajobs.gov/job/733279200

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Although there was no formal announcement from EOIR, it appears that Appellate Immigration Judge William Cassidy has finally retired from the BIA. As many of you know, Judge Cassidy, appointed by AG Billy Barr, was notoriously hostile to asylum seekers and to a fair application of the generous well-founded-fear standard for asylum enunciated by the Supremes in INS v. Cardoza-Fonseca and by the BIA in Matter of Mogharrabi. His “final” TRAC Immigration asylum denial rate as an Immigration Judge in Atlanta was an appalling and bone-chilling 99.1%! https://trac.syr.edu/immigration/reports/judge2022/00004ATD/index.html.

This is a chance for a “real judge” with impeccable academic knowledge, practical solutions, and actual experience representing asylum applicants in the EOIR quagmire to bring some long-overdue and absolutely essential positive, progressive, change to the BIA – a group overall known for its too-often stilted, sloppy, improperly pro-Government, “go along to get along,” “don’t rock the boat by standing up for due process and human rights” decision-making.

The BIA’s lousy performance on the “stop time rule,” where they were twice rebuked by the Supremes for ignoring the language of the statute and the Court’s own holdings, is a classic example of why we need fundamental change at the top of EOIR. This substandard performance generated more unnecessary backlog and “Aimless Docket Reshuffling” in a system that can ill afford it (2 million case backlog). It also created unnecessary confusion and uncertainty in a situation where clarity was both required and achievable. I daresay, it’s hard to imagine any NDPA “practical scholar” getting sidetracked the way the BIA did in its misguided rush to please DHS Enforcement and its political “handlers” at DOJ!

Also, because of “jurisdiction stripping” legislation over the years, limiting the review of the Article IIIs in many areas, the BIA often represents the last realistic chance for individuals to obtain justice and fair treatment! That the BIA too often acts like an “assembly line,” doesn’t diminish its potential to become part of the solution rather than a source of further problems and unfairness.

Don’t let this important Federal Judgeship, with real life or death power over the lives of individuals and the future of our democracy, go by default to another “insider” or asylum denier.

I hear complaints from practitioners nationwide about the BIA’s poor scholarship and failure to issue realistic, positive guidance. But, it’s not going to change unless the “best and the brightest” from the NDPA apply for these critical jobs at EOIR and become agents of change.

Don’t let this chance go by to make a difference in the lives of others and to use your hard-earned expertise and practical skills to fundamentally change our failing U.S. judicial system — starting at the critical “retail level.”

The deadline is July 5, 2023, conveniently during the July 4 holiday. But, don’t let mindless bureaucratic tactics and feeble efforts at recruitment deter you. Force the USG to recognize and employ “judicial excellence” – once the “vision” of EOIR (before “good enough for government work” became the motto). I urge well-qualified minority candidates to apply for this key position!

🇺🇸 Due Process Forever!

PWS

06-23-23

🗽 AFTER DECADES OF INEXCUSABLE FAILURE & CRUEL GIMMICKS, AMERICA 🇺🇸 CAN & SHOULD DO MUCH BETTER FOR ASYLUM SEEKERS — AN ESSENTIAL GROUP OF LEGAL IMMIGRANTS — New AILA Report Tells How! ⚖️

Clown Parade — AILA says this vision of the USG’s Asylum Program could be changed for the better. PHOTO: Public Domain

https://www.aila.org/highstakesasylum

Introduction

There should be a process, but there does need to be some space to be able to do this process. When you are in the thick of applying for asylum, you’re going to commit errors, you’re going to make mistakes, and it’s my understanding that these are the things that get you sent home. The work of an attorney is so important because you [as the applicant] have to turn over your soul, the best of you in this interview. The hardest part is the time, and the details required to demonstrate to the U.S. you are worthy of being allowed to remain herei

Lara Boston, MA Recently received her green card based on an asylum grant.

For people fleeing violence and persecution, nothing is more important than finding safety. For more than 40 years, U.S. asylum law has guaranteed asylum seekers the right to access legal protections enabling them to stay in the United States and avoid being returned to danger. But since the Refugee Act was signed into law in 1980, the laws on asylum eligibility have grown into a maze of convoluted requirements and pitfalls, like the children’s game “Chutes and Ladders,” with potentially deadly consequences.

Because of the complexity and requirements of asylum law, it takes time to prepare an asylum application. In my 25 years of practice, I have prepared and filed hundreds of asylum applications. Based on my experience, it takes time to get an accurate account of someone’s life when there’s violence and trauma involved. It takes time to find evidence of torture and persecution. When you read this report, I encourage you to try to imagine navigating the complex legal steps in the asylum process. Then, imagine doing it without an attorney, a nearly impossible task as extensive research and data has shown.1

This report comes at a critical moment when increased migration to the U.S. southern border and intense political pressure are pushing lawmakers to process asylum seekers faster. Faster can be accomplished, but it must also be fairer. If the system is fair, people meriting protection will receive it and those not eligible can and must depart. Toward that end, this report includes several recommendations that improve asylum processing so that it is both fair and more efficient. It is our hope that this report will contribute to policy reforms that are grounded in the realities of asylum law and the system that implements it.

Jeremy McKinney President, American Immigration Lawyers Association (AILA)

i Quotes by Lara throughout the report are from an interview conducted primarily in Spanish and then translated into English.

High-Stakes Asylum How Long an Asylum Case Takes and How We Can Do Better 3 AILA Doc. No. 23061202. (Posted 6/14/23)

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Executive summary and recommendations

The heightened levels of migration worldwide are drawing intense political and media attention to the United States’ southern border, including radical calls for blocking access to asylum seekers that would undo longstanding American humanitarian principles. More balanced, smarter approaches are available. In fact, since taking office, the Biden Administration has implemented several such policies, including the scale-up of resources to screen asylum seekers at the border and the expansion of existing legal pathways for people to obtain protection.

Unfortunately, the President is also accelerating and truncating the asylum system in an attempt to speed up the process with policies like the 2022 asylum processing rule and the dedicated dockets program.ii AILA has forcefully opposed these recent policies because they are restricting or blocking asylum access and, as a result, deeply compromising the integrity and fairness of the U.S. system.iii

This report on the asylum process draws principally upon the expertise of AILA’s membership of more than 16,000 immigration attorneys and law professors nationwide who provided more than 300 detailed responses to a survey about the critical steps and time required to prepare an asylum case.iv The report’s principal conclusion is that the minimum time required for an attorney to properly prepare an asylum case is 50 to 75 hours. While this estimate accounts for some complications, an asylum case can take much longer. For example, the attorney may need to find evidence of torture in a country that is still wracked by political violence or devote extensive interview time to obtain sensitive information from the asylum applicant while they are still suffering from trauma. See Appendix I.

The government can greatly increase the efficiency of the asylum process by increasing agency resources and capacity and by eliminating existing delays within the system. Some of those steps are being taken, but further action is urgently needed . AILA recommends the Biden Administration use a systemwide, all-of-government approach to implement a range of solutions that will improve asylum processing and the management of migration at the U.S. southern border.

America needs an asylum system that is in line with the nation’s commitments to protect asylum seekers and ensure a fair legal process while also meeting the urgent demand for greater efficiency and capacity. The country’s immigration system must be able to quickly identify who has a legitimate claim for humanitarian protection and who does not. Those not eligible should be required to depart. But imposing strict, arbitrary timelines for asylum that do not allow for adequate preparation will result in eligible asylum seekers being denied protection and sent back to face persecution or death.

ii The asylum processing rule is formally known as “Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers.” New enrollment is currently paused as the Biden administration focuses on the transition away from Title 42. For recent updates, see Featured Issue: Asylum and Credible Fear Interim Final Rule, AILA, https://www.aila.org/advo-media/issues/featured-issue-asylum-and-credible-fear#:~:text=The%20 interim%20final%20rule%20%E2%80%9CProcedures,for%20individuals%20in%20expedited%20removal. See infra at Biden administration fast-tracked programs limit the opportunity to access counsel for more information on the asylum processing rule and the dedicated docket program.

iii E.g., AILA and the Council Submit Comments on Credible Fear Screening and Asylum Processing IFR, May 26, 2022, https:// www.aila.org/infonet/comments-on-credible-fear-screening; AILA Joins Legal Service & Mental Health Providers in Letter to Administration Expressing Grave Concerns over the “Dedicated Docket”, Oct. 5, 2022, https://www.aila.org/advo-media/ aila-correspondence/2022/letter-to-administration-expressing-grave-concerns; AILA and the Council Submit Comments on Circumvention of Lawful Pathways Proposed Rule, Mar. 26, 2023, https://www.aila.org/infonet/comments-on-circumvention- of-lawful-pathways.

iv See Appendix II.

High-Stakes Asylum How Long an Asylum Case Takes and How We Can Do Better 4 AILA Doc. No. 23061202. (Posted 6/14/23)

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Ultimately, systemwide changes can only be accomplished through congressional action to appropriate the funding required to meet these systemic demands. After three decades of inaction, Congress must pass immigration laws that ensure America’s immigration system is ready for the future.

Key findings

The basic steps of preparing an asylum application takes an estimated minimum of 50 to 75 hours. This work cannot be done in one continuous period; instead, it is carried out over the course of several months. Cases with significant complexity can take far more time than this estimate.

Most asylum cases are not straightforward. Complicating factors that add time to an asylum case may include detention, past trauma experienced by the applicant, language barriers, and procuring evidence from foreign countries or expert witnesses such as medical testimony.

It is extremely difficult for an asylum seeker represented by counsel to sufficiently develop their asylum application within the mandatory deadlines established in the May 2022 asylum processing rule or the expedited family court “dedicated dockets.”
AILA recommendations
Ensure asylum timelines do not undermine fairness

When setting asylum processing deadlines, allow adequate time for an asylum seeker to obtain counsel and for the attorney to prepare for the case. Timelines should not rush trauma survivors who may need more time to recount their experience. Reasonable continuances should be allowed to obtain an attorney or for attorney preparation.

Waive or exempt asylum seekers from deadlines if the reason the deadline was not met is outside of their control.

Do not hold asylum seekers to the same evidentiary standards when they are subject to expedited adjudication timelines, such as the shortened deadlines of the 2022 asylum processing rule.
Reduce government delays and inefficiency

Establish uniform policies, centralized systems, and appropriate information sharing between immigration agencies. Agencies should centralize and digitize address changes across all agencies and simplify access to a noncitizen’s immigration record. These steps will enhance communication and data sharing, which will in turn reduce backlogs, avoid delays, and increase efficiency and fairness.

Reduce the immigration court backlog. Executive Office for Immigration Review (EOIR) should continue expanding initiatives to remove cases from the docket or facilitate the resolution of cases through pretrial conferencing. Immigration judges should administratively close or terminate appropriate cases, such as those eligible for a benefit with U.S. Citizenship and Immigration Service (USCIS).2

Do not expend finite prosecutorial resources on cases that can be resolved more expeditiously. Immigration and Customs Enforcement’s (ICE) Office of the Principal Legal Advisor (OPLA) attorneys should engage in pretrial negotiations and exercise prosecutorial discretion to avoid unnecessary litigation.
High-Stakes Asylum How Long an Asylum Case Takes and How We Can Do Better 5 AILA Doc. No. 23061202. (Posted 6/14/23)

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Legal access and representation improve fairness and government efficiency

Ensure asylum seekers and other migrants being processed rapidly at the U.S. southern border have access to legal information, advice, and full counsel during credible fear interviews (CFIs), Customs and Border Protection (CBP) inspections, and immigration court proceedings.

Congress should Fund the Department of Justice (DOJ) to provide legal representation for all immigrants. Everyone needs access to an attorney to provide legal advice and information prior to any hearings, including the CFI. Congress should appropriate DOJ funding to provide full legal representation to those in removal proceedings who cannot afford it.

Ensure access to counsel in all detention facilities. Detention facilities must be held accountable to policies that ensure attorneys have reliable confidential contact visits with clients, as well as access to free and confidential phone calls and video conferences. The government must monitor access to counsel at ICE facilities and impose penalties for violations of standards.
Reduce immigration detention

• Reduce immigration detention. Detention delays asylum cases because it creates barriers to obtaining counsel and makes case preparation far more difficult. The Department of Homeland Security (DHS) should reduce its use of immigration detention.

Improve the asylum process

The Biden administration should publish the long-awaited regulation on particular social group (PSG) asylum cases. On February 20, 2021, President Biden issued an executive order to promulgate this regulation by November 17, 2021,3 but it has not been published. A regulation would aid in consistency of application of asylum law and would reduce USCIS referrals to immigration court.

Increase transparency in adjudications by making DHS’s asylum officer training materials publicly available.

Establish an interagency task force to develop a trauma-informed adjudication system. Experts in development, mental health, welfare, and trauma science should all be involved in this process. A trauma-informed adjudication process will help ensure accurate adjudications in the first instance, which in turn will decrease appeals.

Fund additional asylum officers. Congress should appropriate funds to increase the capacity of USCIS to adjudicate asylum applications.

High-Stakes Asylum How Long an Asylum Case Takes and How We Can Do Better 6 AILA Doc. No. 23061202. (Posted 6/14/23)

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

Download and read the complete report and view accompanying video at the above link!

Here’s one of my favorite comments on Linkedin from an all-star member of the NDPA, Amy R. Grenier:

A year ago, I wanted to cite something in a regulatory comment, but the cite I needed didn’t exist yet.

Today, the American Immigration Lawyers Association released a report on asylum timelines, High-Stakes Asylum: How Long an Asylum Case Takes and How We Can Do Better. The report is based on a survey of over 300 asylum attorneys about how much time it takes to prepare an asylum application, and what complications add significant time. High-Stakes Asylum also includes recommendations on how to inject efficiency into the existing asylum process and ensure the integrity of a system that has life-and-death consequences.

I hope that you find it helpful to cite someday #immigration #lawyers #HighStakesAsylum!

Three decades ago, when I was practicing business immigration at Jones Day, we also did a robust pro bono Immigration Court BIA practice in which I played an advisory role. Even then, we allocated a minimum of 100 hours of attorney/paralegal prep time for an asylum case in Immigration Court and 40 hours for a BIA appeal.

And, at that time, the system probably wasn’t as “intentionally user unfriendly” as it is now. On some occasions, we were responding to requests for pro bono representation from Immigration Judges who believed that without representation certain previously unrepresented detained cases would “be lost and linger in the system forever.” That was long before 2 million case backlogs!

Representation is essential for due process at EOIR! This fundamental truth is neither new nor is it “rocket science!” That politicians of both parties and Article III Judges have swept this truth under the carpet doesn’t make it less true! If lives of persons who didn’t have the bad fortune to be immigrants were at issue, this intentionally due-process-denying system would have been held unconstitutional by the Supremes decades ago!

Unfortunately, A.G. Garland has fashioned a “highly, unnecessarily, and intentionally user unfriendly system” that actually discourages and impedes pro bono and low bono representation.

Even worse, he and his subordinates have failed miserably to “fully leverage” the amazing VIISTA Villanova program for training more highly-qualified non-attorney “accredited representatives” to rapidly close the representation gap throughout the nation. The asylum litigation “training modules” put together by VIISTA founder Professor Michele Pistone, with help from the National Institute for Trial Advocacy (“NITA”) puts EOIR/DOJ/DHS asylum training to shame!

Professor Michele Pistone
Villanova Law — The founder of VIISTA Villanova, brilliant lawyer, inspirational leader, teacher, scholar, social justice mavan, why isn’t she running and reforming EOIR? Why is Garland afraid of a proven “creative disrupter” driven 100% by a commitment to equal justice for all?

Incredibly, the Biden Administration “blew off” recommendations by experts that Professor Pistone or one of her colleagues be recruited to “shake up” EOIR and radically reform and improve training in asylum and other forms of protection.

Lack of fundamental expertise and private sector expedience representing asylum seekers is a key reason why EOIR under Garland continues to “wander in the wilderness” of legal dysfunction with no way out! So unnecessary! So damaging to democracy!

Many thanks to Jeremy McKinney, Greg Chen, and others who worked on the AILA report. Cite it! Use it! Demand that Congress heed it! Use it to force justice into Garland’s failed, dysfunctional, and unfair “Clown Courts!”🤡

🇺🇸 Due Process Forever!

PWS

06-16-23

🤯 CAIR COALITION COGENTLY CONCLUDES: CANNED CLAPTRAP CAN’T CHANGE CRATERING CLOWN COURTS! 🤡

Kangaroos — “We don’t need immigration expertise to be hired, and now we don’t need it to deny cases either. Just have to slap any old attachment on it! EOIR is the ‘paint by numbers’ of judging!”
https://www.flickr.com/photos/rasputin243/
Creative Commons License

https://www.caircoalition.org/2023/06/12/breaking-attorneys-advocate-better-due-process-response-immigration-judges-making

BREAKING: Attorneys advocate for better due process in response to immigration judges making conveyor-belt deportation decisions

June 12, 2023

Immigration attorneys nationwide have witnessed a concerning increase in immigration judges issuing deportation decisions without individualized analysis. Instead, these barebones decisions often rely on boilerplate “form addenda,” which are standardized summaries of immigration law not specific to any noncitizen’s case.

This week, in response to these concerning practices, Capital Area Immigrants’ Rights (CAIR) Coalition and pro bono counsel O’Melveny & Myers, along with over 50 partner organizations, have submitted a letter advocating that the Executive Office for Immigration Review (EOIR) reform its policies governing the use of form addenda.

Because they are not specific to a person’s individual case and are instead just stapled to a deportation order as legal justification, the addenda usually include irrelevant issues and sometimes incorrect statements of the law. Plus, the noncitizen and their attorney often never see a copy of the addenda.

The sign-on letter urges EOIR to take multiple, concrete steps to change its policies governing the use of form addenda. These measures include increased training on addenda usage for immigration judges, making form addenda publicly accessible, and appointing an ombudsman to investigate addenda misuse.

“Due to the drastic consequences for immigrants in deportation cases—including family separation and possible persecution and death in people’s home countries—the law requires U.S. immigration judges to conduct an individualized analysis of each noncitizen’s case when deciding on their removal proceedings,” said Peter Alfredson, Senior Attorney at CAIR Coalition. “When the stakes are that high, noncitizens deserve to know that judges are taking their claims seriously—or even looking at their claims at all—and issuing decisions that reflect that responsibility.”

“Immigration judges merely staple these form addenda to a removal order instead of doing their job to analyze each person’s case.” said Adina Appelbaum, Program Director of the Immigration Impact Lab at CAIR Coalition. “We need clearer policies from EOIR so that if judges use these addenda, they will do so in a way that is fair and respectful to the noncitizens whose lives are in their hands.”

Adina Appelbaum
Director, Immigration Impact Lab
CAIR Coalition
Charter Member, NDPA
PHOTO: “30 Under 30” from Forbes

————-

Contact

Erin Barnaby, CAIR Coalition | erin@caircoalition.org

————-

About Capital Area Immigrants’ Rights Coalition

Through free legal, social, and litigation services, Capital Area Immigrants’ Rights (CAIR) works to ensure equal justice for immigrants in the Capital region who are at risk of detention and deportation.

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Crazy catastrophic courts can’t continue!

🇺🇸 Due Process Forever!

PWS

06-14-23

🏴‍☠️ EOIR DENIES DUE PROCESS TO ASYLUM SEEKER, SAYS SLIT 9TH! — Dysfunctional Agency Renowned For “Aimless Docket Reshuffling” Of Scheduled, “Ready to Try” Cases Can’t Spare Time For Same-Day Filing By Newly Retained Counsel In “Life Or Death Matter!” — Arizmendi-Medina v. Garland

https://cdn.ca9.uscourts.gov/datastore/opinions/2023/06/07/21-298.pdfw

KEY QUOTE FROM CIRCUIT JUDGE RONALD LEE GILMAN’S MAJORITY OPINION:

. . . .

Third, the IJ was hardly inconvenienced at all. Arizmendi-Medina’s counsel offered to submit the application while the IJ was still on the bench. Although this might have required the IJ to recall Arizmendi-Medina’s case at the end of the IJ’s docket, this inconvenience was truly minimal. Cf. Jerezano, 169 F.3d at 615 (“While an IJ need not linger in the courtroom awaiting tardy litigants, so long as he is there on other business and the delay is short[,] …it is an abuse of discretion to treat a slightly late appearance as a nonappearance.”). Further, as discussed above, the December 18, 2018 hearing was a Master Calendar hearing, not a merits hearing. This means that the proceedings were ultimately not delayed at all.

And fourth, we consider the total number of continuances previously granted to Arizmendi-Medina. He received two very short continuances (only two weeks each) to find an attorney at the beginning of his immigration proceedings on July 31, 2018 and August 15, 2018. See Cruz Rendon, 603 F.3d at 1106–07, 1110 (finding that two one- month continuances were both “exceedingly short”). The proceedings were then reset at the hearing on August 29, 2018 because Arizmendi-Medina requested, and the IJ granted, a change of venue. The next hearing was scheduled for October 24, 2018 before a new IJ. Although this certainly gave Arizmendi-Medina more time to find an attorney, this delay was primarily due to the change of venue and getting the case calendared in a new court.

Finally, after Arizmendi-Medina was required to proceed pro se and was found removable at the hearing on October 24, 2018, the IJ granted another continuance so that Arizmendi-Medina could continue to look for an attorney and work on his relief application (which was presented to him for the first time at the October 24, 2018 hearing).

20 ARIZMENDI-MEDINA V. GARLAND

Arizmendi-Medina thus received only one continuance after he was found removable and presented with a relief application, and he received zero continuances after he finally secured an attorney. From start to finish, the proceedings against Arizmendi-Medina were delayed for less than five months, with nearly two months of that delay due to the change of venue.

Ultimately, all of the Ahmed factors weigh in favor of finding that the IJ abused his discretion in not granting a continuance so that Arizmendi-Medina’s recently-retained counsel could complete and submit the relief application on December 18, 2018. The abuse is especially apparent given the offer of Arizmendi-Medina’s counsel to submit the application later that same day. Such an abuse by the IJ counsels in favor of finding that Arizmendi-Medina was denied fundamental fairness. See id. at 1110 (finding that the IJ abused her discretion in part because the merits hearing was “less than one month after Cruz Rendon first appeared with counsel,” which contributed to the noncitizen’s difficulty in marshalling evidence in such a short time frame (emphasis in original)). This “prevented [Arizmendi-Medina] from reasonably presenting his case.” See Zetino, 622 F.3d at 1013 (quoting Ibarra-Flores, 439 F.3d 620-21).

. . . .

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

This faux “court” system has lost sight of its sole function: To provide due process hearings to individuals whose lives and futures are on the line!

In this case, the DOJ was obviously willing to spend more time and resources on denying the respondent his day in court than it would have taken to hold a merits asylum hearing! No wonder they have built an astounding, ever-growing 2 million case backlog! Don’t let Garland & company get away with blaming the private bar or respondents (that is, “the victims”) for DOJ’s continuing screw-ups at EOIR!

No real inconvenience or delay to the IJ! Life or death for the respondent! Attorney kept on a treadmill by EOIR’s unreasonable conduct! Who would take cases, particularly pro bono, under this type of tone-deaf “double standard.” (Would Trump-appointed dissenting Judge Danielle J. Forrest, who probably never has represented an individual in Immigration Court, REALLY practice law under these abusive circumstances?)

How many of you out there in “Courtside Land” have arrived on time for a scheduled merits hearing, with respondent and witnesses in tow, only to find out that your case had been “orbited” further out on the docket, with no or inadequate notice? How many have had long-prepared cases arbitrarily shuffled to a future year while having other cases where you were recently retained mindlessly “moved up” on the docket to satisfy EOIR’s latest “priority of the day?” Pretending like “every minute counts” in this hopelessly inefficient and bolloxed system is EOIR’s and DOJ’s way of deflecting attention and shifting the blame for their own, largely self-created failures!

In the “topsy turvy” fantasy world of EOIR, the dockets are overwhelming and totally screwed up! So much, that DHS recently took the unprecedented step of unilaterally declaring that (except for a small subset of “mandatory appearances”) THEY would decide which EOIR cases to staff with an Assistant Chief Counsel. See, https://immigrationcourtside.com/2023/05/31/🤯-wacko-world-of-eoir-dhs-prosecutors-deliver-the-big-middle-finger-bmf-🖕to-garlands-feckless-immigration-courts-unilate/. Implicit in this “in your face” action is the assumption that Immigration Judges will also act as prosecutors in these cases (even though Immigration Judges clearly lack some of the authority of prosecutors, including the exercise of prosecutorial discretion and stipulation to issues or relief).

On the other hand, private attorneys are systemically jerked around by EOIR and subjected to the threat of discipline for even relatively minor transgressions. Talk about an “uneven playing field!” In a system where lack of representation and under-representation are daily threats to due process and fundamental fairness, how does EOIR’s one-sided, anti-attorney, anti-immigrant conduct encourage new generations to chip in their time pro bono or low bono to bridge the ever-present “representation gap?”

In short, it does just the opposite! Some experienced practitioners have “had enough” and reduced or eliminated their Immigration Court presence while others have changed to other areas of practice because of EOIR’s continuing dysfunction under Garland. This should be a “solvable” problem — particularly in a Dem Administration! Why isn’t it?

Why is Garland getting away with this nonsense? How can we “change the playing field” and demand that Garland finally bring the due process reforms and expert judicial and professional, common-sense administrative personnel to America’s worst and most life-threatening courts?

Thanks to attorney Shannon Englert of San Diego for taking on Garland’s dysfunctional DOJ immigration bureaucracy!

Shannon Englert, ESQ Founder DYADlaw Vista, CA PHOTO: Linkedin

🇺🇸 Due Process Forever!

PWS

06-13-23

“`

⚖️🧑‍⚖️ THERE’S STILL TIME (BUT NOT MUCH) TO REGISTER FOR CMS’S “DEEP DIVE” INTO EOIR’S DYSFUNCTION, WITH TRUE EXPERTS

View this email in your browser

TOMORROW, June 6 at 12:30pm ET, the Center for Migration Studies of New York (CMS) will host a webinar and discussion on its latest paper entitled, The US Immigration Courts, Dumping Ground for the Nation’s Systemic Immigration Failures: The Causes, Composition, and Politically Difficult Solutions to the Court Backlog, by Donald Kerwin and Evin Millet.

Experts on the immigration court system will highlight the systemic problems in the US immigration system that have caused and sustained the backlog, and offer recommendations for reversing the backlog.

Speakers include:

Donald Kerwin, former executive director of CMS and Editor of the Journal of Migration and Human Security
Mimi Tsankov, President, National Association of Immigration Judges and member, Expert Advisory Group
Richard A. Boswell, Professor of Law, UC College of Law, San Francisco, and member, Expert Advisory Group

As well as additional members of the Expert Advisory Group:

Gregory Chen, Senior Director of Government Relations, American Immigration Lawyers Association
Anna Gallagher, Executive Director, Catholic Legal Immigration Network, Inc.
Karen T. Grisez, Pro Bono Counsel, Fried, Frank, Harris, Shriver, and Jacobsen, LLP
Hon. Dana Leigh Marks (retired), President Emerita, National Association of Immigration Judges (in her personal capacity)
Michele Pistone, Professor of Law, Villanova University
Andrew Schoenholtz, Professor from Practice, Georgetown University Law Center
Denise Noonan Slavin, retired judge, Adjunct Professor, St. Thomas University School of Law
Charles Wheeler, Senior Attorney/Director Emeritus, Catholic Legal Immigration Network, Inc.

Click the button below to register for FREE!

The Center for Migration Studies (CMS) is a New York-based educational institute devoted to the study of international migration, to the promotion of understanding between immigrants and receiving communities, and to public policies that safeguard the dignity and rights of migrants, refugees, and newcomers. For more information, please visit www.cmsny.org.

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Center for Migration Studies, New York · 307 East 60th Street · New York, NY 10022 · USA

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To be bluntly honest, this panel of experts appears to be the group that an Administration seriously committed to restoring due process, fundamental fairness, and best practices to the “retail level” of U.S. justice would have hired in January 2021, to clean house 🧹 and institute lasting institutional reforms at America’s worst courts!

They have been “hiding in plain sight” for the past 2.5 years while Garland has been flailing and failing to bring order and long-overdue reforms to his tragically broken system!

Clown Car — Isn’t it time to finally get the “EOIR Clown Show” off the road before it causes more fatalities? Many experts think so!
PHOTO CREDIT: Ellin Beltz, 07-04-16, Creative Commons License, https://creativecommons.org/licenses/by-sa/4.0/. Creator not responsible for above caption.

🇺🇸 Due Process Forever!

PWS

06-05-23

☹️ WRONG AGAIN: 1st Cir. KO’s 🥊 BIA On Firearms! — Portillo v. DHS

Dan Kowalski reports for LexisNexis immigration:

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca1-on-realistic-probability-portillo-v-dhs#

CA1 on Realistic Probability: Portillo v. DHS

May 31, 2023

(1 min read)

Portillo v. DHS

“Gerardo A. Portillo petitions for review of a decision of the Board of Immigration Appeals (“BIA”) affirming his order of removal and denying his application for adjustment of status. Because we find that a conviction under Massachusetts General Laws (“MGL”) ch. 269, § 11C is not categorically a firearm offense as defined by 8 U.S.C. § 1227(a)(2)(C), we grant the petition for review, vacate the decision below, and remand for further proceedings. … Accordingly, without resorting to “legal imagination,” we conclude that MGL ch. 269, § 11C sweeps more broadly than the federal offense, and Portillo need not produce an actual case to demonstrate that overbreadth. … For the reasons stated above, we grant the petition for review, vacate the BIA’s opinion, and remand for further proceedings consistent with this decision.”

[Hats off to Jennifer Klein, Susan Brooks Church and Kathleen Marie Gillespie! Audio of the oral argument here.]

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Congrats to the NDPA “litigation team” of Klein, Church, & Gillespie!

Notably, the unanimous 1st Circuit did a detailed 24-page analysis to get this one right. This is the type of scholarship and effort one might expect, but doesn’t consistently get, from the BIA.

Remarkably, this case has now been pending for more than six years at EOIR. Now, largely as a consequence of EOIR’s, toxic “how can we get to no” bias, present over the past several Administrations, it’s back to “square one” with no end in sight.

THAT’S how a system builds uncontrollable backlog! Maybe pruning out the “deadwood” and bringing in “practical scholar-experts” as judges at the appellate and trial levels wouldn’t solve all the problems that have been building up for decades at EOIR. But, it sure would be a great start on a better future!

🇺🇸 Due Process Forever!

PWS

06-05-23

⚖️ DON KERWIN & EVIN MILLET MAKE CASE THAT IMMIGRATION COURT DISASTER GOES FAR BEYOND EOIR: “The US Immigration Courts, Dumping Ground for the Nation’s Systemic Immigration Failures: The Causes, Composition, and Politically Difficult Solutions to the Court Backlog!”

Donald M. Kerwin, Senior Research Associate, University of Notre Dame

In forwarding this article, Don says: “The report makes the case that the backlog has nothing to do with the immigration courts and everything to do with systemic, unresolved problems in the broader US immigration system.”

Here’s the abstract with a link to the article:

https://journals.sagepub.com/doi/10.1177/23315024231175379

Abstract

The US immigration court system seeks to “fairly, expeditiously, and uniformly administer and interpret US immigration laws” (DOJ 2022a). It represents the first exposure of many immigrants to due process and the rule of law in the United States, and occupies an integral role in the larger US immigration system. Yet it labors under a massive backlog of pending cases that undermines its core goals and objectives. The backlog reached 1.87 million cases in the first quarter of FY 2023 (Straut-Eppsteiner 2023, 6). This paper attributes the backlog to systemic failures in the broader immigration system that negatively affect the immigration courts, such as:

• Visa backlogs, United States Citizen and Immigration Services (USCIS) application processing delays, and other bottlenecks in legal immigration processes.

• The immense disparity in funding between the court system and the Department of Homeland Security (DHS) agencies that feed cases into the courts.

• The failure of Congress to pass broad immigration reform legislation that could ease pressure on the enforcement and court systems.

• The lack of standard judicial authorities vested in Immigration Judges (IJs), limiting their ability to close cases; pressure parties to “settle” cases; and manage their dockets.

• The absence of a statute of limitations for civil immigration offenses.

• Past DHS failures to establish and adhere to enforcement priorities and to exercise prosecutorial discretion (PD) throughout the removal adjudication process, including in initial decisions to prosecute.

• The location of the Executive Office for Immigration Review (EOIR), which oversees US immigration courts, within the nation’s preeminent law enforcement agency, the Department of Justice (DOJ).

• The misconception of many policymakers that the court system should primarily serve as an adjunct to DHS.

• A past record of temporary judge reassignments and government shutdowns.

The paper supports a well-resourced and independent immigration court system devoted to producing the right decisions under the law. Following a short introduction, a long section on “Causes and Solutions to the Backlog” examines the multi-faceted causes of the backlog, and offers an integrated, wide-ranging set of recommendations to reverse and ultimately eliminate the backlog. The “Conclusion” summarizes the paper’s topline findings and policy proposals.

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

This is a “treasure trove” of information about systemic failure of our Immigration Courts, for which I am deeply grateful to Don & Evin.

So, is EOIR a symptom or a cause of immigration dysfunction, or a mixture of both?

I’m inclined to believe that notwithstanding the evidence described in the article that EOIR is largely a “victim” of deeper problems in our immigration system, there is a strong case to be made that more principled Attorneys General, more courageous and talented EOIR personnel, and a Democratic Party with democratic values and a spine could have thrust EOIR into a due process and legal expertise leadership role, thereby making the current immigration system operate more fairly, efficiently, and in the public interest.

I don’t think that the Democratic Party can continue to use the lack of overall immigration reform, something the current GOP does not want to see and will continue to block, is an excuse for not making the current legal system work better, starting with EOIR. See, e.g., https://immigrationcourtside.com/2023/04/14/%e2%9a%96%ef%b8%8f%f0%9f%97%bd%f0%9f%87%ba%f0%9f%87%b8-speaking-out-matthew-at-the-border-acting-on-the-message-of-chapter-25/\

It’s a shame that we’ll never know the truth. That just leaves commentators and scholars to analyze the carnage and to speculate on “what might have been” or “what could be” in a different political atmosphere.

This is perhaps interesting, even significant, from an historical standpoint. But, the practical effect remains to be seen.

If I could have just one immigration “reform, it would be an Article I EOIR! Without due process, all other reforms and improvements are doomed to failure!

🇺🇸 Due Process Forever!

PWS

05-28-23

🤯☠️ 🤮 👎🏽 WHILE TALKING A “GOOD GAME” ABOUT WOMEN’S RIGHTS, BIDEN ADMINISTRATION ALLOWS MISOGYNY TO RULE @ EOIR — Why Does It Take A Conservative 11th Circuit To Get VAWA Right??? 🤯

Women find “trial by ordeal” can be the order of the day at Garland’s BIA:

Dan Kowalski reports for LexisNexis Immigration Community:

CA11 on VAWA, “Extreme Cruelty,” Chevron: Ruiz v. Atty Gen.

https://media.ca11.uscourts.gov/opinions/pub/files/202210445.pdf

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca11-on-vawa-extreme-cruelty-chevron-ruiz-v-atty-gen#

“Esmelda Ruiz, a native and citizen of Peru, appeals the Board of Immigration Appeals’ determination that she is ineligible for relief under 8 U.S.C. § 1229b(b)(2), a provision whose language was originally adopted as part of the Violence Against Women Act of 1994 and that outlines the conditions under which certain “battered spouse[s] or child[ren]” qualify for discretionary cancellation of removal. As relevant here, it requires a petitioning alien to show that she “has been battered or subjected to extreme cruelty” by her spouse or parent. 8 U.S.C. § 1229b(b)(2)(A)(i). Ruiz contends that the Immigration Judge and the BIA made two errors in refusing her cancellation request. First, she maintains that, as a matter of law, they misinterpreted the statutory term “extreme cruelty” to require proof of physical—as distinguished from mental or emotional—abuse. And second, she asserts that, having misread the law, the IJ and the BIA wrongly concluded that she doesn’t qualify for discretionary relief. We agree with Ruiz that the IJ and the BIA misinterpreted § 1229b(b)(2) and thereby applied an erroneous legal standard in evaluating her request for cancellation of removal. Accordingly, we grant her petition for review and remand to the BIA for further consideration. … For the foregoing reasons, we agree with Ruiz—and hold— that the BIA misinterpreted 8 U.S.C. § 1229b(b)(2). The term “extreme cruelty” does not require a petitioning alien to prove that she suffered physical abuse in order to qualify for discretionary cancellation of removal; proof of mental or emotional abuse is sufficient to satisfy the “extreme cruelty” prong of § 1229b(b)(2)’s five-prong standard. We therefore GRANT the petition in part and REMAND to the BIA for further proceedings consistent with this opinion.”

[Hats way off to Anabella Trujillo! And listen to the oral argument here.]

—

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

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

Not only did the supposedly “expert” BIA get the standard completely wrong, but Garland’s OIL continued to throw up specious arguments defending the BIA’s abusive treatment of women!

When you start with “No,” and then “reason” backwards to get there, bad things happen. Frankly, the Biden Administration was elected to “clean house” 🧹 at EOIR and to bring systemic due process, expertise, best practices, and impartiality to our nation’s dysfunctional immigration tribunals — with literally millions of lives and the future of democracy at stake! Why haven’t they done it? How do they continue to get away with it?

🇺🇸 Due Process Forever!

PWS

05-20-23

⚖️🧑‍⚖️ IMMIGRATION COURTS IN CRISIS = DENIAL OF DUE PROCESS FOR INDIVIDUALS — NY Times Article Quoting Round Table’s Judge Eiza Klein & Charles Honeyman, Also NDPA Officials, Judge Mimi Tsankov and Judge Samuel Cole! — PLUS BONUS COVERAGE: My Latest “Mini Essay” — “EOIR ABUSES ASYLUM SEEKERS”

Hon. Eliza Klein — Eliza C. Klein, a retired immigration judge, said the asylum case backlog “creates a second class of citizens.”Credit…Taylor Glascock for The New York Times

https://www.nytimes.com/2023/05/12/us/politics/immigration-courts-delays-migrants-title-42.html?smid=nytcore-ios-share&referringSource=articleShare

Zolan Kanno-Youngs reports for the NYT:

. . . .

Eliza C. Klein, who left her position as an immigration judge in Chicago in April, said the latest increase in illegal border crossings will strain the understaffed work force as they prioritize migrants who crossed recently.

That will leave some older cases to languish even longer, she said.

“This is a great tragedy because it creates a second class of citizens,” Ms. Klein, who started working as an immigration judge in the Clinton administration, said of those immigrants who have been waiting years for an answer to their case. The oldest case Ms. Klein ever adjudicated had been pending in the court for 35 years, she said.

“It’s a disgrace,” Ms. Klein said. “My perspective, my thought, is that we’re not committed in this country to having a just system.”

While crowds of migrants continued to seek refuge in the United States after the lifting of Title 42, U.S. officials said the border remained relatively orderly. About 10,000 people crossed the border on Thursday, a historically large number, but that dropped significantly to about 6,200 on Friday.

Tens of thousands of migrants continued to wait in makeshift camps on both sides of the border for a chance to request sanctuary in the United States. The administration remained concerned about overcrowding; Border Patrol held more than 24,000 migrants in custody on Friday, well over the agency’s maximum capacity of roughly 20,000 in its detention facilities.

. . . .

Mimi Tsankov, the president of the National Association of Immigration Judges, said that to truly address the backlog, the Biden administration would need to do more than simply hire more judges. She said that the government should increase funding for better technology and bigger legal teams, and that Congress should reform the nation’s immigration laws.

“The immigration courts are failing,” said Samuel B. Cole, the judge association’s executive vice president. “There needs to be broad systemic change.”

. . . . .

Judge Charles Honeyman, who spent 24 years as an immigration judge and retired in 2020, said he came away from his job believing the United States would need to do a better job of deterring fraud while protecting those who would be harmed in their home country.

When handling an asylum case, Mr. Honeyman said he would assess the person’s application and examine the state of their home country by reading reports from the State Department and nonprofits. Many of the applicants lacked attorneys; he believes some cases that he denied might have turned out differently if the migrants had had legal representation.

In trying to root out fraud, he would compare a person’s testimony with the answers they had given to an asylum officer or Border Patrol agent.

. . . .

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

Read the full article at the link.

EOIR ABUSES ASYLUM SEEKERS — The Problem Goes Deeper Than The Number Of Judges: Quality & Culture Matter!

By Paul Wickham Schmidt

U.S. Immigration Judge (Retired)

Courtside Exclusive

May 16, 2023

While the NYT article notes that the majority of asylum cases are eventually denied on the merits, this data is often presented in a misleading way by the Government, and unfortunately, sometimes the media. According to TRAC Immigration, during the period Oct 2000 to April 2023, approximately 43% of asylum seekers who received a merits decision were granted asylum or some other type of relief. Approximately 57% were denied. https://trac.syr.edu/phptools/immigration/asylum/

Even in an overall hostile system, where individuals are often required to proceed without lawyers, and grant/denial rates among Immigration Judges vary by astounding levels (so great as to present prima facie due process issues), asylum seekers succeed on the merits of their claims at a very respectable rate. In a properly staffed and administered system where the focus was on due process and fundamental fairness for individuals, that number would almost certainly be substantially higher.

Moreover, the data suggests that toward the end of the Obama Administration and during the entire Trump Administration, the asylum system was improperly manipulated to increase denials.

For instance, in FY 2012, approximately 55% of asylum claims decided by EOIR on the merits were granted. https://trac.syr.edu/immigration/reports/306/. While there was no discernible worldwide improvement in human rights conditions in the following years, IJ asylum grant rates cratered during the Trump years, reaching a low of 29% in FY 2020, barely half the FY 2012 level. https://trac.syr.edu/immigration/reports/668/#:~:text=While%20asylum%20grant%20rates%20declined,after%20President%20Biden%20assumed%20office.%20That%E2%80%99s%20a%20decline%20of%20nearly%2050%%20since%20the%20FY%202012%20high.

I think there are three reasons for the precipitous decline in asylum grant rates, largely unrelated to the merits of the claims. First, Attorneys General Jeff Sessions and Bill Barr overruled some of the leading administrative precedents supporting grants of asylum. In the process, they made it crystal clear that they considered Immigration Judges to be their subordinate employees within the political branch of Government and that denial, deportation, and assistance to their “partners” at DHS Enforcement (actually DHS is a party before EOIR, not a “partner”) were the preferred results at EOIR.

Second, in greatly expanding the number of Immigration Judges, Sessions and Barr appointed almost exclusively from the ranks of prosecutors and government attorneys, even elevating an inordinate number of individuals with no immigration and human rights experience whatsoever. Not only were well-qualified individuals with experience representing individuals in Immigration Court largely passed over and discouraged from applying, but some of the best Immigration Judges quit or retired prematurely as a matter of conscience because of the nakedly anti-immigrant pro enforcement “culture” promoted at EOIR.

Additionally, the nationwide appellate court and precedent setter, the BIA, was expanded and “packed” with some Immigration Judges who denied virtually all of the asylum cases coming before them and had reputations of hostility to the private bar and asylum seekers. Remarkably, Attorney General Garland has done little to address this debilitating situation at the BIA.

Third, since the latter years of the Obama Administration, when a vastly overhyped “border surge” took place, political officials of both parties have improperly “weaponized” EOIR as a “deterrent” to asylum seekers, focusing on expeditious denials of asylum rather than the due process and expert tribunal functions the agency was supposed to serve. The result has been a “culture of denial and deportation” with particular emphasis on finding ways to “say no” to women and individuals of color seeking asylum.

The NYT Article also mentions that asylum merits decisions require a higher standard of proof than “credible fear determinations.” That’s true. But the suggestion that the standards are much higher is misleading. In fact, the standards governing merits grants of asylum before the Asylum Office and EOIR are supposed to be extremely generous.

In the seminal case, INS v. Cardoza-Fonseca, the Court said that “well-founded fear” is a generous standard, one that could be satisfied by a 10% chance of persecution. In implementing this holding, the BIA found in Matter of Mogharrabi that asylum could be granted even where the chances of persecution were substantially less than probable.

There is as also a regulation, 8 C.F.R. 208.13, issued under the Bush I Administration, that creates a rebuttable presumption of future persecution based on past persecution.

The problem is that none of these generous and remedial provisions relating to asylum has ever been properly, consistently, and uniformly applied within EOIR. As someone who during my time on the bench took these standards to heart, I found that a substantial majority of merits asylum cases coming before me could and should be granted under a proper application of asylum law.

Consequently, I am skeptical of judges who deny virtually all asylum claims. Likewise, I question the claims by political officials of both parties who pretend, without actual knowledge, that almost all asylum applicants at the border are “mere economic migrants” who deserve to be quickly and summarily removed.

Actually, under some circumstances, severe economic hardships can amount to persecution. Moreover, under the legally required “mixed motive” analysis for asylum, an economic aspect does not automatically obviate other qualifying grounds.

So, at its root, “credible fear” is actually an even more generous application of what is already supposed to be (but often isn’t in reality) a very generous standard for asylum. The alleged “disconnect” between the number of individuals found to have credible fear and the number actually granted asylum on the merits appears to be more a function of defective and overly restrictive decision-making at EOIR than it is of unjustified generosity of Asylum Officers screening for credible fear. It’s also important to remember that at the credible fear stage, individuals haven’t had time to marshal the substantial corroborating evidence eventually required (some would say unrealistically and unreasonably) in formal merits asylum hearings before EOIR.

Finally, just aimlessly increasing the number of Immigration Judges, without solving the systemic legal, logistical, management, quality control, training, and “cultural” problems infecting EOIR creates its own set of new problems.

Recently, a veteran practitioner before EOIR wrote the following:

In about eleven years, our local DMV went from twelve (12) judges in Baltimore and Arlington in 2012 to a hundred (100) judges in 2023 (8 BAL, 18 HYA, 30 WAS, 9 FCIAC, 14 RIAC, 21 STE). That’s an increase of 733.33%. This seismic expansion has resulted in many attorneys being overscheduled for individual hearings, which has an adverse effect on our clients, our ethical obligations, due process, and mental health.

Well-prepared attorneys, many serving pro bono or “low bono,” are absolutely essential to due process and fundamental fairness in Immigration Court, particularly in cases involving asylum and other forms of protection. For EOIR to schedule cases in a manner that does not take into consideration the legitimate needs and capacities of those practicing before their courts is nothing short of malpractice on the part of DOJ leadership.

There is a silver lining here. The EOIR judicial hiring program gives NDPA stars a chance to get on the bench at the retail level level, bring much needed balance and perspective, and to develop the credentials for future Article III judicial appointments. Since change isn’t coming “from the top,” we need to make it happen at the “grass roots level!” Keep those applications coming!

🇺🇸Due Process Forever!

PWS

05-16-23

⚖️👩🏽‍⚖️ IMMIGRATION COURTS: ABOUT HALF OF THE 19 NEWLY-APPOINTED IMMIGRATION JUDGES HAVE EXPERIENCE REPRESENTING INDIVIDUALS BEFORE EOIR!

Here’s the official list with bios from EOIR:

https://lnks.gd/l/eyJhbGciOiJIUzI1NiJ9.eyJidWxsZXRpbl9saW5rX2lkIjoxMDAsInVyaSI6ImJwMjpjbGljayIsInVybCI6Imh0dHBzOi8vd3d3Lmp1c3RpY2UuZ292L2VvaXIvcGFnZS9maWxlLzE1ODM1MzEvZG93bmxvYWQiLCJidWxsZXRpbl9pZCI6IjIwMjMwNTEyLjc2Njc5NzYxIn0.JuSaHIpyovBHrDQUPD-sjQQccVOsekUbLd1QWO9w_Po/s/1130895796/br/190560600642-l

For my colleague Judge “Sir Jeffrey” Chase, Judge Maria Baldini-Potermin is the name that jumps out:

Maria T. Baldini-Potermin, Immigration Judge, Chicago Immigration Court

Maria T. Baldini-Potermin was appointed as an immigration judge to begin hearing cases in May 2023. Judge Baldini-Potermin earned a Bachelor of Arts in 1990 from the University of Dayton and a Juris Doctor in 1997 from the University of Minnesota Law School. From 2008 to 2023, she was the owner and managing attorney at Maria Baldini- Potermin and Associates PC in Chicago. During this time, from 2009 to 2023, she served as the author of “Immigration Trial Handbook,” a book she co-authored from 2008 to 2009. Also, from 2009 to 2021, she served as the update editor for “Immigration Law and Crimes” . From 2009 to 2021, she also served as a member of the board of directors of the National Immigration Project of the National Lawyers Guild, where she served as board chair and interim executive director in 2019. From 2007 to 2008, she was an associate immigration attorney at Gostynska Frakt Ltd., and from 2001 to 2007, at Scott D. Pollock and Associates PC in Chicago. From 1999 to 2001, she served as a National Association of Public Interest Law (NAPIL) Equal Justice Fellow with the Midwest Immigrant Rights Center (now National Immigrant Justice Center) in Chicago. From 1997 to 1999, she served as a NAPIL Equal Justice Fellow with the Immigrant Law Center of Minnesota (Oficina Legal) in Saint Paul, Minnesota. From 1996 to 1997, she served as an immigration law clerk at Guyton Law Office in Saint Paul, Minnesota. From 1994 to 1997, she trained law students at the Asylum Law Project in Minneapolis. From 1992 to 1994, she served as an accredited representative, and from 1991 to 1992, as a paralegal, with the South Texas Pro Bono Asylum Representation Project (ProBAR) in Harlingen, Texas. From 1990 to 1991, she served as a paralegal with the Brownsville Catholic Charities Canada Asylum Project in Brownsville, Texas. Judge Baldini-Potermin is a member of the Illinois State Bar and the Minnesota State Bar. She is admitted to practice before the U.S. Courts of Appeals for the Second, Fifth, Sixth, and Seventh Circuits, and the Supreme Court of the United States.

For me, it’s Judge Angela Munro whom I worked with on training for the Annual Conference during my time at EOIR:

Angela Munro, Immigration Judge, Boston Immigration Court

Angela Munro was appointed as an immigration judge to begin hearing cases in May 2023. Judge Munro earned a Bachelor of Arts in 2000 from Brown University, a Master of Arts in 2004 from the Fletcher School at Tufts University, and a Juris Doctor in 2008 from Northeastern University School of Law. From 2010 to 2023, she served as an attorney advisor at the Board of Immigration Appeals, EOIR. From 2008 to 2010, she served as a judicial law clerk at the Boston Immigration Court entering on duty through the Attorney General’s Honors Program. Judge Munro is a member of the Massachusetts Bar and the New York State Bar.

Another bio that caught my eye is Judge Hannah B. Kubica who once practiced at Joyce & Associates in Boston with my long-time friend and Round Table colleague Judge Bill Joyce.

Hannah B. Kubica, Immigration Judge, Boston Immigration Court

Hannah B. Kubica was appointed as an immigration judge to begin hearing cases in May 2023. Judge Kubica earned a Bachelor of Arts in 2005 from Vanderbilt University and a Juris Doctor in 2008 from the Villanova University Charles Widger School of Law. From 2016 to 2023, she was in private practice as an associate, and later as a senior associate, at McHaffey & Nice LLC in Boston where she represented noncitizens before EOIR and U.S. Citizenship and Immigration Services, Department of Homeland Security. During her time in private practice, she provided pro bono services at Rian Immigrant Center, formerly the Irish International Immigrant Center. From 2016 to 2011, she was in private practice as an associate at Joyce & Associates PC in Boston. From 2011 to 2008, Judge Kubica was in private practice at GNP Law Firm in the greater Boston area, and at Weir & Partners LLC in Philadelphia. Judge Kubica is a member of the Massachusetts Bar and the Pennsylvania Bar.

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

Congrats and good luck to all of the new Judges. Remember: The job is about due process, fundamental fairness, practical scholarship, and best practices, NOT “pleasing your handlers” or making DHS Enforcement happy!

We’re “making progress” in getting more NDPA practical scholars on the Immigration Bench! But, we need even more to fundamentally change the culture at EOIR and to make due process the overriding mission, as it was supposed to be! So, NDPA’ers, keep those judicial applications coming!

🇺🇸 Due Process Forever!

PWS

05-13-23

•	Visa backlogs, United States Citizen and Immigration Services (USCIS) application processing delays, and other bottlenecks in legal immigration processes.
•	The immense disparity in funding between the court system and the Department of Homeland Security (DHS) agencies that feed cases into the courts.
•	The failure of Congress to pass broad immigration reform legislation that could ease pressure on the enforcement and court systems.
•	The lack of standard judicial authorities vested in Immigration Judges (IJs), limiting their ability to close cases; pressure parties to “settle” cases; and manage their dockets.
•	The absence of a statute of limitations for civil immigration offenses.
•	Past DHS failures to establish and adhere to enforcement priorities and to exercise prosecutorial discretion (PD) throughout the removal adjudication process, including in initial decisions to prosecute.
•	The location of the Executive Office for Immigration Review (EOIR), which oversees US immigration courts, within the nation’s preeminent law enforcement agency, the Department of Justice (DOJ).
•	The misconception of many policymakers that the court system should primarily serve as an adjunct to DHS.
•	A past record of temporary judge reassignments and government shutdowns.

1. Ben Winograd, Esquire, is an all-star appellate litigator who would have made a great BIA Chair/Chief Appellate Judge!

2. “Legacy” Arlington Immigration Court superstar Tamara Jezic runs circles around EOIR and OIL!

🇺🇸 Due Process Forever!

Related posts:

Dean Kevin Johnson reports from ImmigrationProf Blog:

🇺🇸 Due Process Forever!

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Stephen Collinson writes at CNN:

🇺🇸 Due Process Forever!

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Dan Kowalski reports for LexisNexis Immigration Community:

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Dan Kowalski reports for LexisNexis Immigration Community:

🇺🇸 Due Process Forever!

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Summary

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🇺🇸 Due Process Forever!

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Crazy catastrophic courts can’t continue!

🇺🇸 Due Process Forever!

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KEY QUOTE FROM CIRCUIT JUDGE RONALD LEE GILMAN’S MAJORITY OPINION:

🇺🇸 Due Process Forever!

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🇺🇸 Due Process Forever!

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Dan Kowalski reports for LexisNexis immigration:

CA1 on Realistic Probability: Portillo v. DHS

🇺🇸 Due Process Forever!

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Here’s the abstract with a link to the article:

🇺🇸 Due Process Forever!

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Women find “trial by ordeal” can be the order of the day at Garland’s BIA:

Dan Kowalski reports for LexisNexis Immigration Community:

CA11 on VAWA, “Extreme Cruelty,” Chevron: Ruiz v. Atty Gen.

🇺🇸 Due Process Forever!

Related posts:

Related posts:

Here’s the official list with bios from EOIR:

For my colleague Judge “Sir Jeffrey” Chase, Judge Maria Baldini-Potermin is the name that jumps out:

For me, it’s Judge Angela Munro whom I worked with on training for the Annual Conference during my time at EOIR:

Another bio that caught my eye is Judge Hannah B. Kubica who once practiced at Joyce & Associates in Boston with my long-time friend and Round Table colleague Judge Bill Joyce.

🇺🇸 Due Process Forever!

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