FOURTH CIRCUIT JOINS 9TH, 2d, & 6TH IN REVERSING BIA’S OVERLY RESTRICTIVE READING OF ASYLUM ELIGIBILITY – ADDITIONAL EVIDENCE OF A PRE-EXISTING CLAIM CAN BE A “CHANGED CIRCUMSTANCE” JUSTIFYING “LATE” ASYLUM FILING! — ZAMBRANO V. SESSIONS (PUBLISHED)!

4th Cir on changed circumstances-1yr

Zambrano v. Sessions, 4th Cir., 12-05-17 (published)

PANEL: KEENAN and WYNN, Circuit Judges, and John A. GIBNEY, Jr., United States District Judge for the Eastern District of Virginia, sitting by designation.

OPINION BY: Judge Gibney

KEY QUOTE:

“This Court agrees with the logic of the Ninth, Second, and Sixth circuits. New facts that provide additional support for a pre-existing asylum claim can constitute a changed circumstance. These facts may include circumstances that show an intensification of a preexisting threat of persecution or new instances of persecution of the same kind suffered in the past. The Court remands to the BIA and leaves the determination of whether the facts on record constitute changed circumstances which materially affect the petitioner’s eligibility for asylum to the BIA’s sound discretion.

III.
The BIA erred when it categorically held that additional proof of an existing claim

does not establish changed circumstances. Accordingly, we grant the petition for review, vacate the BIA’s order, and remand the case to the BIA for further consideration in light of this opinion.”

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

This is a very important decision for asylum applicants in the Fourth Circuit, as this situation arises frequently in Immigration Court.

With three well-reasoned Circuit decisions already in the books, why is the BIA holding out for a discredited rationale? How many individuals who weren’t fortunate enough to have Ben Winograd or an equally talented lawyer argue for them in the Court of Appeals have already been wrongfully removed under the BIA’s discredited rationale? Where’s the BIA precedent adopting this rationale and making it binding on IJ’s nationwide before more individuals are wrongfully removed? How is this “through teamwork and innovation being the world’s best administrative tribunal guaranteeing fairness and due process for all?”

The answer to the latter question is sadly obvious. While the BIA’s problems predated his tenure, the attitude of Attorney General Jeff Sessions, as demonstrated in his recent pronouncement on so-called “Immigration Court efficiency” elevates “false efficiency,” speed, and cranking out removals above fundamental fairness and Due Process. Why have an elaborate administrative court system that doesn’t put Due Process first and foremost as “real” (non-captive) courts generally do? Why not just send all removal cases to U.S. District Judges and Magistrate Judges who make Due Process and fairness “job one” and aren’t preoccupied with “jacking up” removal statistics to please political bosses?

And, I’d like to see how far the DHS/Sessions’s (they are pretty much the same these days) boneheaded, arrogant, unrealistic, and wasteful “no PD” policy would get in a “real” court system where widespread, reasonable, and prudent use of PD by prosecutors is understood and accepted as an essential part of fairness, efficiency, and responsible use of publicly-funded judicial resources. Indeed, in some of my past “off the record” conversations with Article III Judges, they were absolutely flabbergasted to discover the unwillingness of DHS to meaningfully exercise “PD” in the pre-Obama era and to learn that at DHS the “cops,” rather than the prosecutors were responsible for setting PD policies!

PWS

12-08-17

 

ATTN “COURTSIDERS” – HEAR ME “LIVE” ON RADIO IN RICHMOND, VA, THE INTERNET, AND FACEBOOK TOMORROW, FRIDAY, DEC. 8, 2017!

I’ll be on two local radio shows hosted by Richmond Attorney Pablo Fantl tomorrow.

Both are am radio stations, and are available online.  They also will broadcast on Facebook Live, and will be available in the archives afterwards.  I will post links on immigrationcourtside.com once the recordings are available.

From 11:30-12:30     Radio Poder 1380 am   http://www.wbtk.com/

From 1:00-2:00         Maxima 1320 am          https://maxima1320.com/

These are programs directed at informing the Hispanic community in Richmond. Although I’m not bilingual, Pablo has promised excellent interpretation services. And, gosh knows, I’m pretty used to being translated into many languages from my days on the immigration bench.

Hope you’ll “tune in!”

PWS

12-07-17

 

 

BATTLE OF THE PUNDITS: RAPPAPORT V. LITHWICK – NOLAN SAYS “If the Supreme Court allows the courts to continue to do this to Trump, they will interfere with any national security decision he makes that impacts a country with a large Muslim population, regardless of the circumstances.” – DAHLIA SAYS “Thousands of people will be harmed for no reason other than Donald Trump dislikes Muslim countries and crafted a nearly legal theory to achieve his ban after two abject failures.” – YOU DECIDE!

http://thehill.com/opinion/immigration/363473-with-travel-ban-scotus-can-correct-lower-courts-anti-trump-bias

Nolan writes in The Hill:

“According to Eric Posner, a professor at the University of Chicago Law School, the lower U.S. courts have created a “Trump exception” to settled law on presidential powers with their travel ban decisions. They have ignored the Supreme Court’s admonition that courts may not “look behind” a “facially legitimate” reason for an executive order, which in these cases was a national security interest in stricter vetting.

Trump appealed to the Supreme Court, but his case became moot when he replaced the temporary travel ban with a permanent program with the Presidential Proclamation he issued on September 24, 2017, “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats.”

When fourth and ninth circuit courts enjoined implementation of his proclamation, he went back to the Supreme Court. On December 4, 2017, the Court ordered stays of the fourth circuit and the ninth circuit injunctions.

The Court did not state its basis for granting Trump’s stay request in either decision, but stays are not granted for meritless cases. I expect Trump to prevail on the merits of his case.

. . . .

He [Judge Derick Watson of the USDC in Hawaii] goes on to say that nevertheless “any reasonable, objective observer would conclude … that the stated secular purpose of the Executive Order is, at the very least, ‘secondary to a religious objective’ of temporarily suspending the entry of Muslims.” This “assessment rests on the specific historical record,” which “focuses on the president’s statements about a ‘Muslim ban,’” including on the campaign trail.

If the Supreme Court allows the courts to continue to do this to Trump, they will interfere with any national security decision he makes that impacts a country with a large Muslim population, regardless of the circumstances.”

Go on over to The Hill at the link to read Nolan’s complete article! I note that Nolan’s article is also posted on SCOTUSDaily. Here’s the link:

SCOTUSDaily pdf

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

https://slate.com/news-and-politics/2017/12/the-new-travel-is-an-abomination-why-have-we-stopped-caring.html

Meanwhile, Dahlia Lithwick writes in Slate:

“Way, way back in February, a three-judge panel of the United States Court of Appeals for the 9th Circuit heard oral arguments in State of Washington v. Trump, the first iteration of the first appeal of the first attempt at Donald Trump’s travel ban. This version was a hastily executed implementation of the president’s promise to create a Muslim ban, signed on Jan. 27, just a week after Trump took office.

America was riveted, listening eagerly to arguments broadcast without images and parsing—or trying to parse—complicated appellate questions about standing, and justiciability, and religious animus. As the court ultimately found—before this first version was pulled from commission and replaced with a new one—Trump’s ban trampled over all sorts of due process rights.

Almost a year later, a different panel of the 9th Circuit heard on Wednesday a different oral argument, about a third iteration of a Trump executive order limiting immigration from some majority-Muslim countries. This one, though, was offered without the glare of national media and by seemingly worn-out advocates. More than anything, the argument was reminiscent of one of those old-timey dance marathons, in which weary partners pushed one another around a high school gymnasium in the futile hope that anything might still matter.

Wednesday’s effort made the second argument about the very same issuesfrom May seem positively zippy (May? Remember May??). But here we are in December, and the travel ban has been sanitized and then sanitized again. The current version, announced in September, targets 150 million travelers from Muslim-majority countries Chad, Iran, Libya, Somalia, Syria, and Yemen, as well as the non–Muslim majority outlier North Korea along with some Venezuelan government officials. It was promptly blocked by judges before it went into effect, and on Monday the Supreme Court allowed it to go forward for the time being, warning the appeals courts that they had better rule quickly.So here in December, it is now being defended by seemingly competent counsel, despite the fact that—if one noticed such things anymore—the president was tweeting Muslim revenge porn only a week ago.

. . . .

We should all possibly care about travel ban 3.0 and its cretinous defenders a whole lot more than we apparently do, simply because it’s permanent, it’s nearly as bad as the original, and the Supreme Court appears inclined to tolerate it. Thousands of people will be harmed for no reason other than Donald Trump dislikes Muslim countries and crafted a nearly legal theory to achieve his ban after two abject failures.

A fortiori, for the record, means an argument made with greater reason or more convincing force. Who knew that something so grotesquely cynical and cruel as this travel ban could become a fortiori, just from sheer wariness, repetition, and fatigue?”

Read the rest of Dahlia’s article over at Slate at the above link.

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

Clearly, “different strokes for different folks!” But, we all have a stake in this one way or the other!

Interestingly, Nolan and Dahlia appear to agree on one thing: the Supremes (or at least a majority of them, excluding Justices Sotomayor and Ginsburg who dissented from the dissolution of the stay) have signaled that they are ready to “greenlight” Trump’s “Travel Ban 3.0.” In other words, if Trump is exceeding “political and societal norms” (which many of us think he is) ultimately it will be up to the political branches of Government and the voters, not the courts, to rein him in.

PWS

12-07-17

BIG TRUMP WIN: SUPREMES GEEENLIGHT TRUMP’S HIT ON MUSLIMS!

https://www.washingtonpost.com/politics/courts_law/supreme-court-allows-full-enforcement-of-trump-travel-ban-while-legal-challenges-continue/2017/12/04/486549c0-d5fc-11e7-a986-d0a9770d9a3e_story.html

Robert Barnes reports in the WashPost:

“The Supreme Court on Monday granted President Trump’s request that his revised travel ban be enforced fully while legal challenges to it proceed in lower courts.

The justices approved a request from the president’s lawyers to lift restrictions on the order — which bans most travelers from eight nations, most with Muslim majorities — that had been imposed by lower courts.

The court gave no reason for its decision, but said it expected lower court review of the executive orders to proceed quickly. Justices Ruth Bader Ginsburg and Sonia Sotomayor would have kept in place partial stays on the order.

Judges in two judicial circuits — the U.S. Court of Appeals for the 4th Circuit in Richmond and the U.S. Court of Appeals for the 9th Circuit in San Francisco — had cast doubt on Trump’s third executive order banning almost all travel from certain countries.

Oral arguments are scheduled for soon in both federal appeals court cases on whether the ban exceeds the president’s broad powers on immigration.

The latest iteration — the third ban that Trump has ordered — blocks various people from eight countries — Syria, Libya, Iran, Yemen, Chad, Somalia, North Korea and Venezuela. Six of the countries have Muslim majorities.”

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

Read the complete article at the link.

Yeah, I know that this technically isn’t a “decision on the merits.” But that’s what we call “legal BS.”

The majority of Supremes are clearly signaling that they expect the lower courts to rule in Trump’s favor. If they don’t get the message, the Supreme majority will cream them “on the merits.” If there were a realistic chance of the plaintiffs prevailing, the Supremes wouldn’t have lifted the injunction imposed below.

Nolan and others who said that “Travel Ban 3.0” was a “slam dunk” winner for the Trumpsters were correct. It’s basically “open season” on Muslims, refugees, and others on the Administration’s “hit parade.” Any change will have to come at the ballot box!

PWS

12-04-17

 

 

 

 

GONZO’S WORLD: WHAT HAPPENS WHEN A DIVERSE “NATION OF IMMIGRANTS” ANOINTS A COMMITTED XENOPHOBE AS ITS CHIEF LAW OFFICER? – Gonzo Is Deconstructing Our System Of Justice, One Day At A Time!

https://www.washingtonpost.com/world/national-security/while-eyes-are-on-russia-sessions-dramatically-reshapes-the-justice-department/2017/11/24/dd52d66a-b8dd-11e7-9e58-e6288544af98_story.html?utm_term=.6b27aa9221e3

“For more than five hours, Attorney General Jeff Sessions sat in a hearing room on Capitol Hill this month, fending off inquiries on Washington’s two favorite topics: President Trump and Russia.

But legislators spent little time asking Sessions about the dramatic and controversial changes in policy he has made since taking over the top law enforcement job in the United States nine months ago.

From his crackdown on illegal immigration to his reversal of Obama administration policies on criminal justice and policing, Sessions is methodically reshaping the Justice Department to reflect his nationalist ideology and hard-line views — moves drawing comparatively less public scrutiny than the ongoing investigations into whether the Trump campaign coordinated with the Kremlin.

Sessions has implemented a new charging and sentencing policy that calls for prosecutors to pursue the most serious charges possible, even if that might mean minority defendants face stiff, mandatory minimum penalties. He has defended the president’s travel ban and tried to strip funding from cities with policies he considers too friendly toward undocumented immigrants.

Attorney General Jeff Sessions during a House Judiciary Committee hearing on Nov. 14. (Alex Brandon/AP)

Sessions has even adjusted the department’s legal stances in cases involving voting rights and lesbian, gay, bisexual and transgender issues in a way that advocates warn might disenfranchise poor minorities and give certain religious people a license to discriminate.

Supporters and critics say the attorney general has been among the most effective of the Cabinet secretaries — implementing Trump’s conservative policy agenda even as the president publicly and privately toys with firing him over his decision to recuse himself from the Russia case.

. . . .

In meetings with top Justice Department officials about terrorist suspects, Sessions often has a particular question: Where is the person from? When officials tell him a suspect was born and lives in the United States, he typically has a follow-up: To what country does his family trace its lineage?

While there are reasons to want to know that information, some officials familiar with the inquiries said the questions struck them as revealing that Sessions harbors an innate suspicion about people from certain ethnic and religious backgrounds.

Sarah Isgur Flores, a Justice Department spokeswoman, said in a statement, “The Attorney General asks lots of relevant questions in these classified briefings.”

Sessions, unlike past attorneys general, has been especially aggressive on immigration. He served as the public face of the administration’s rolling back of a program that granted a reprieve from deportation to people who had come here without documentation as children, and he directed federal prosecutors to make illegal-immigration cases a higher priority. The attorney general has long held the view that the United States should even reduce the number of those immigrating here legally.

In an interview with Breitbart News in 2015, then-Sen. Sessions (R-Ala.) spoke favorably of a 1924 law that excluded all immigrants from Asia and set strict caps on others.

“When the numbers reached about this high in 1924, the president and Congress changed the policy and it slowed down immigration significantly,” Sessions said. “We then assimilated through 1965 and created really the solid middle class of America, with assimilated immigrants, and it was good for America.”

Vanita Gupta, the head of the Justice Department’s civil rights division in the Obama administration who now works as chief executive of the Leadership Conference on Civil and Human Rights, said Sessions seems to harbor an “unwillingness to recognize the history of this country is rooted in immigration.”

“On issue after issue, it’s very easy to see what his worldview is of what this country is and who belongs in this country,” she said, adding that his view is “distinctly anti-immigrant.”

Those on the other side of the aisle, however, say they welcome the changes Sessions has made at the Justice Department.

Jessica Vaughan, director of policy studies for the Center for Immigration Studies, which advocates for moderating levels of immigration, said she would give the attorney general an “A-plus” for his work in the area, especially for his crackdown on “sanctuary cities,” his push to hire more immigration judges and his focus on the MS-13 gang.

“He was able to hit the ground running because he has so much expertise already in immigration enforcement and related public safety issues and the constitutional issues, so he’s accomplished a lot in a very short time,” Vaughan said.”

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

Read the compete article, which deals with much more than immigration, at the link.

Immigrants, refugees, immigration advocates, and career civil servants involved in immigration at the DOJ seems to be “star-crossed.” After decades of relative indifference to the importance of immigration, an Attorney General finally shows up  who makes it his highest priority.

Only problem is that he’s a committed xenophobe and White Nationalist whose largely false and exaggerated narrative on immigration comes right from the alt-right restrictionist playbook and harks back to the Jim Crow era of the American South — only this time with Hispanics and Muslims as the primary targets.

In any “normal” American business, obsession with tracing back lineage of someone’s family would be prima facie evidence of prohibited “national origins discrimination.” But, for Gonzo, it’s just another day at the office.

Notwithstanding his less than stellar performances before Congress and that he’s fallen off Trump’s “A-Team” (notwithstanding probably doing more to deconstruct the Constitution and “Good Government” than any other cabinet officer), he’s unlikely to be going anywhere soon. So the damage will continue to add up for the foreseeable future. It’s not like Senator Liz Warren and others didn’t try to warn America about this dude!

Meanwhile, perhaps not to be outdone, over at the U.S. State Department, Secretary of State Rex Tillerson is proceeding to deconstruct the Career Foreign Service and reduce the Stated Department and our Diplomatic Corps to “administrative roadkill.” You can read about that debacle in this NY Times article:

https://www.nytimes.com/2017/11/24/us/politics/state-department-tillerson.html

PWS

11-26-17

 

HAS CONGRESS BECOME IRRELEVANT? – Dan Balz Explains How With No Big Legislation To Date, Trump Is Successfully Implementing His White Nationalist Agenda!

https://www.washingtonpost.com/politics/how-trump-is-really-changing-things/2017/11/25/a5dbc1b2-d1f4-11e7-a87b-47f14b73162a_story.html?utm_term=.3c01b91b4c2b

Balz writes in the Washington Post:

“It has been a long and unproductive year for President Trump. Repealing and replacing the Affordable Care Act cratered. The wall on the U.S.-Mexico border hasn’t been built or even funded. Tax reform, though moving forward, is still well short of a Rose Garden signing ceremony. Despite unified Republican control of government, Trump’s got little to show for it.

Yet it has also been a long and quite productive year for the president. He has dramatically changed the direction of federal policy toward the environment, the energy industries, immigration, education, civil rights, trade and the federal workforce, and he is rapidly remaking the federal court system. What President Barack Obama started in many of these areas, Trump has started to reverse.

The president’s tweets draw outsize attention to his grievances and his petty feuds. The absence of notable legislative successes focuses criticism on his style of leadership. Those realities overshadow what he has done and is doing unilaterally, to the extent of his executive powers. In other ways, his presidency seems unique. In the arena of executive action, he is pursuing a model established by his recent past predecessors, with worrisome consequences to constitutional governance.

That’s the conclusion of an essay in the most recent issue of the Forum, a nonpartisan journal of ideas and political analysis. Sidney M. Milkis and Nicholas Jacobs, both of the University of Virginia, argue that Trump’s deployment of what they call “executive-centered partisanship” is both in keeping with the modern presidency and a potentially damaging shift in our politics.

The authors take note of Trump’s acceptance speech at the Republican National Convention, where he said that he, an outsider, knew better than anyone how to solve the problems of broken government. “Nobody knows the system better than me,” he said. “Which is why I alone can fix it.”

The first year of his presidency appears to make a mockery of that statement, given the problems he’s had in Congress and the fact that his approval ratings are the lowest of any president at this point in his term as far back as there was polling.

Yet, as the authors note, “Often overlooked among the disappointments and recriminations of Trump’s frenzied beginning is his administration’s aggressive and deliberate assault on the Liberal state. . . . Since day one, Trump has forcefully — and sometimes successfully — taken aim at the programmatic achievements of his predecessor.”

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

Read the complete article at the link.

Immigration is one of the key areas in which Trump has been able to change the landscape and undo much of Obama’s legacy without any significant legislative changes. And, there is no obvious reason why he can’t keep it up. Unlike other areas, Trump has his own “captive” Federal Immigration Judiciary, run by Jeff Sessions. And, Congress has proved unwilling, unable, or both to wade into significant immigration legislation for more than a decade.

PWS

11-26-17

 

GONZO’S WORLD: “MINISTRY OF INJUSTICE” — How Gonzo Is Successfully Draining Justice From The Department Of Justice

https://www.nbcnews.com/think/opinion/jeff-sessions-slowly-surely-undoing-america-s-criminal-justice-progress-ncna823126

James Braxton Peterson reports for NBC News:

“The Russia investigation may be undercutting Attorney General Jeff Sessions’ credibility, but it has not undermined his efforts to take the U.S. Justice Department back in time.

The time Sessions wants to go back to features an unforgiving system of mass incarceration that disproportionately targets people of color in a legal structure too often stacked against them.

To do this, the attorney general has issued a slew of policy rollbacks — unfortunate for a Justice Department that was only incrementally making progress toward equal justice under President Barack Obama and Attorney General Eric Holder.

In this sense, Sessions’ Justice Department might be the most effective unit of the Trump administration. If Trumpism’s goal is, at least in, part to destroy the progress achieved under the Obama administration, Sessions’ scorecard so far outstrips his GOP colleagues in the Cabinet and former colleagues in the Senate.

In March, for example, the nation’s top law enforcement officer visited St. Louis, next-door to Ferguson, ground zero for the Black Lives Matter movement. Sessions was in St. Louis talking about crime initiatives but also seeming to criticize one of the most useful tools for documenting police brutality: civilian cell phone videos. The choice of venue could not have been a coincidence. By focusing on “targeted police killings,” he deflected attention from the challenges now confronting law enforcement.

In fact, Sessions has had little to say on how the Justice Department might address matters of police brutality, much less on the matter of Black Lives Mattering. Instead, he has mostly showcased President Donald Trump’s belief that strong policing and incarceration are key to maintaining law and civil order.

. . . .

It is as if Sessions’ Justice Department is operating on a set of alternative facts. Because the statistics are well known: Whites and blacks use and sell drugs at roughly the same rates, and African Americans make up roughly 13 percent of the U.S. population. Yet law enforcement records are remarkably different for each demographic. According to Human Rights Watch: “Black adults are more than two-and-a-half times as likely as white adults to be arrested for drug possession. In 2014, Black adults accounted for just 14 percent of those who used drugs in the previous year but close to a third of those arrested for drug possession.” In many states, a felony conviction also means losing the right to vote.

It is as if Sessions’ Justice Department is operating on a set of alternative facts.

Sessions looks eager to re-open the “war on drugs” — or, more appropriately, the war on poor people who use drugs. No available metric on this decades-long war shows any significant success in limiting access to drugs in the United States or in reducing addiction to controlled substances.

What the “war on drugs” has been good at is: stigmatizing poor people afflicted with the disease of addiction; profiling black and brown folks and arresting them at rates exponentially greater than their white counterparts; and creating revenue streams for the Prison Industrial Complex.

. . . .

Sessions’ success will be key if Trump wants to make good on his law-and-order promises.

Sadly, it is working. The Justice Department is slowly transforming into an injustice department right before our eyes.

Mass incarceration, its impact on families and communities and the often racially biased ways in which its policies operate is still one of the most pressing human rights issues of our time. It’s a shame that, in the era of Trump, we are unable to effectively address the challenges we face.

James Braxton Peterson is the author of three books, including “Prison Industrial Complex for Beginners.”

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

Read Peterson’s full article at the link.

Peterson doesn’t even get into Gonzo’s brazen attacks on justice for Latinos, immigrants, Dreamers, refugees, LGBTQ individuals, so-called “Sanctuary Cities,” lawyers, reporters, Federal Judges, critics of the Administration, forensic science, private property, or users of legalized marijuana. And, he only mentions in passing Gonzo’s disingenuous statements on Russia and his lackadaisical handling of the real threats Russia poses to our national security. Grim as Peterson’s article is, it actually substantially understates the true carnage that Gonzo is inflicting on our Constitution and our system of justice. It could turn out to be irreparable!

Senator Liz Warren was right!

PWS

11-24-17

ASYLUM: LAW YOU CAN USE: All-Star Professor Michele Pistone Of Villanova Law Writes & Directs “Must See TV” — “Best Practices in Representing Asylum Seekers”

Go on over to Dan Kowalski’s LexisNexis Immigration Community here for all the links to the 19-part series on You Tube made possible by the American Law Institute with an introduction by none other than Justice Sandra Day O’Connor:

https://www.lexisnexis.com/legalnewsroom/immigration/b/immigration-law-blog/archive/2017/11/16/video-series-best-practices-in-representing-asylum-seekers.aspx?Redirected=true

Thanks, Michele, for all you do for the cause of Due Process for migrants and better Immigration Court practices!

PWS

11-17-17

 

LPR CANCELLATION: Split 9th Follows 5th — Holds That “Admission In Any Status” Includes Unlawful Status — Saldivar v. Sessions!

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/11/07/13-72643.pdf

Saldivar v. Sessions, 9th Cir., 11-07-17, published

PANEL: Stephen Reinhardt, Alex Kozinski, and Kim McLane Wardlaw, Circuit Judges.

OPINION BY: Judge Reinhardt

DISSENT: Judge Kozinski

KEY QUOTE:

“The structure of § 1229b thus confirms what was already unambiguously clear from the plain meaning of the text: the statute requires continuous presence for seven years after a procedurally lawful admission in any immigration status, lawful or unlawful.8 Perhaps, had Congress required admission “in any status whatsoever” in § 1229b(a)(2), the government might have acknowledged that unlawful status was covered by the phrase it now finds ambiguous. However, as we have explained, the term “any,” in its plain meaning, is all-inclusive and any further language would be pure surplusage. In short, any is any, and a status is a status, be it lawful or unlawful.”

JUDGE KOZINSKI, DISSENTING, WAS UNIMPRESSED:

“My colleagues misread the INA, trample our precedent and turn their backs on Chevron, all to create a giant loophole that will enable thousands to lie their way to relief that Congress never intended them to have. The Fifth Circuit got it wrong and the Ninth now follows them down the rabbit hole. It’s time for another opinion.”

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

Read the complete opinion at the link.

The 9th Circuit majority declines to give the “Chevron deference” to the BIA precedent Matter of Blancas- Lara, 23 I. & N. Dec. 458, 460 (BIA 2002) by finding the statute “unambiguous.” So far, no “Circuit split.”

Undoubtedly, migrants without visas arriving at the border have lots of reasons to lie or otherwise misrepresent. However, with due deference to Judge Kozinski, it seems highly unlikely that the off-chance of applying for discretionary relief 10 years in the future would be one of them.

I find it interesting that it has taken 15 years since the BIA’s decision in Blancas-Lara for the Article IIIs to come to grips with the issue.

PWS

11-11-17

 

 

 

 

 

GONZO’S WORLD: His Own Credibility Has Become A Bad Joke — But, Under Gonzo The DOJ & The SG’s Office Rapidly Losing Credibility & Respect From The Federal Courts!

https://www.law.com/nationallawjournal/sites/nationallawjournal/2017/11/09/justice-department-faces-questions-for-supreme-court-attack-on-aclu-ethics/

Marcia Coyle reports for the National Law Journal:

“The U.S. Justice Department’s request that the Supreme Court consider sanctions against lawyers who advocated for an immigrant teenager at the center of an abortion case has raised questions about the government’s motivation and threatened to jeopardize the reputation of the solicitor’s office before the justices. Former Justice Department attorneys called the government’s action in the Supreme Court “extraordinary” and said they had no memory of a similar Supreme Court petition.”

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

You’ll need a full subscription to the NLJ to get beyond what I’ve quoted above. But, you get the idea.

And remember, you read first in some of my earlier blogs in immigrationcourtside.com about the DOJ’s and SG’s likely loss of years of hard earned respect and credibility by arguing the relatively “law free” politicized “Gonzo” positions forced on them by Sessions and the rest of the White Nationalist Trumpsters. Remember, the pro bono lawyers being smeared by Sessions’s DOJ were fighting to vindicate a migrant teenager‘s clear constitutional rights against an attempt by Government officials to substitute their own personal opinions for the constitutional rules and to misrepresent their true intentions (use delay and obfuscation tondefeat constitutional rights) in doing so. Sounds like it’s Sessions and his group whose law licenses should be re-examined.

The public and to some extent the media might have allowed the “Trump/Sessions Crowd” to “normalize” the presentation of lies, misrepresentations, intentional omissions, distortions, and political screeds as “facts” or “legal arguments.” But, most Article III Courts don’t like being played for fools, particularly by the USDOJ which traditionally has been expected to meet higher standards of integrity, fairness, and responsibility to accurately inform the tribunals before which they appear.

Ironically, although Gonzo tried to tag immigration lawyers fighting to preserve their clients’ statutory and constitutional rights as “dirty,” that tag is much more likely to stick to Gonzo and some of the ethically challenged DOJ lawyers doing his bidding. Not to mention that the DOJ is wasting the time of the Supremes with its basically frivolous request, intended largely as political grandstanding to satisfy Gonzo’s anti-abortion, anti-US Constitution political backers.

PWS

11-10-17

REAL DUE PROCESS MAKES A STUNNING DIFFERENCE! – NY PROJECT FINDS THAT REPRESENTED IMMIGRANTS ARE 12X MORE LIKELY TO WIN CASES!

https://www.vox.com/policy-and-politics/2017/11/9/16623906/immigration-court-lawyer

Dara Lind reports for VOX

“Omar Siagha has been in the US for 52 years. He’s a legal permanent resident with three children. He’d never been to prison, he says, before he was taken into Immigration and Customs Enforcement detention — faced with the loss of his green card for a misdemeanor.

His brother tried to seek out lawyers who could help Siagha, but all they offered, in his words, were “high numbers and no hope” — no guarantee, in other words, that they’d be able to get him out of detention for all the money they were charging.

Then he met lawyers from Brooklyn Defender Services — part of the New York Immigrant Family Unity Project, an effort to guarantee legal representation for detained immigrants. They demanded only one thing of him, he recalls: “Omar, you’ve got to tell us the truth.”

But Siagha’s access to a lawyer in immigration court is the exception.

There’s no right to counsel in immigration court, which is part of the executive branch rather than the judiciary. Often, an immigrant’s only shot at legal assistance before they’re marched in front of a judge is the pro bono or legal aid clinic that happens to have attorneys at that courthouse. Those clinics have such limited resources that they try to select only the cases they think have the best shot of winning — which can be extremely difficult to ascertain in a 15-minute interview.

But advocates and local governments are trying to make cases like Siagha’s the rule, not the exception. Soon, every eligible immigrant who gets detained in one of a dozen cities — including New York, Chicago, Oakland, California, and Atlanta — will have access to a lawyer to help fight their immigration court case.

The change started at Varick Street. The New York Immigrant Family Unity Project started in New York City in 2013, guaranteeing access to counsel for detained immigrants.

According to a study released Thursday by the Vera Institute for Justice (which is now helping fund the representation efforts in the other cities, under the auspices of the Safe Cities Network), the results were stunning. With guaranteed legal representation, up to 12 times as many immigrants have been able to win their cases: either able to get legal relief from deportation or at least able to persuade ICE to drop the attempt to deport them this time.

So far, cities have been trying to protect their immigrant populations through inaction — refusing to help with certain federal requests. Giving immigrants lawyers, on the other hand, seemingly makes the system work better. And if it works, it could leave the Trump administration — which is already upset with the amount of time it takes to resolve an immigration court case — very frustrated indeed. (The Department of Justice, which runs immigration courts, didn’t respond to a request for comment.)

Immigration court is supposed to give immigrants a chance for relief. In reality … it depends.

As federal immigration enforcement has ramped up over the past 15 years, nearly every component of it has gotten a sleek bureaucratic upgrade, a boatload of money, and heightened interest and oversight from Congress. But immigration court has been overlooked as everything else has been built up around it.

The reason is simple. Chronologically, most immigrants have to go through immigration court after being apprehended and before being deported. But bureaucratically, immigration courts are run by the Executive Office for Immigration Review, housed in the Justice Department instead of by the Department of Homeland Security. And when it comes to money and bureaucratic attention, that makes all the difference in the world.

From the outside, the striking thing about immigration court is how slow it is — lawyers already report that hearings for those apprehended today are scheduled in 2021. That’s also the Trump administration’s problem with it; the federal government is sweeping up more immigrants than it did in 2016 but deporting fewer of them.

But it doesn’t seem that way from the inside, to an immigrant who doesn’t have any idea what’s going on — especially one who’s being kept in detention.

This is the scene that Peter Markowitz accustomed himself to, as a young immigration lawyer at the Varick Street courtroom in New York: “People brought in, in shackles, with their feet and hands shackled to their waist, often not understanding the language of the proceedings, having no idea of the legal norms that were controlling their fate — being deported hand over fist.”

I know he’s not exaggerating; in my first morning watching immigration court proceedings in Minneapolis in 2008, I saw at least 10 detainees get issued deportation orders before lunch. Almost none had lawyers. Sometimes the judge would pause and explain to the detainee, in plain English, what was really going on — but she didn’t have to, and sometimes she wouldn’t bother.”

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Read Dara’s full article at the link.

No lawyer = no due process. Rather than trying to hustle folks out of the country without a full and effective chance for them to be heard — in other words, true Due Process — Jeff Sessions should be changing the Immigration Court system to put less reliance on detention and detention center “kangaroo courts” and more emphasis on insuring that each individual scheduled for a hearing has fair and  reasonable access to competent counsel.

I totally agree that due process can’t be put on a “timetable,” as Sessions and his crew at the DOJ seem to want. As observed by none other than Chief Justice John Roberts — certainly no “bleeding heart liberal” —“It takes time to decide a case on appeal. Sometimes a little; sometimes a lot.” Nken v. Holder, 556 U.s. 418 (2009). That’s even more true on the trial level.

I have a somewhat different take on whether representation and providing full due process will ultimately slow down the system. In the short run, represented cases might take longer than unrepresented ones (although I personally found that not invariably true). However, as noted by Chief Judge Katzmann, lack of representation both promotes wrong, and therefore unfair, results, but also inhibits the proper development of the law. (Perhaps not incidentally, I note that Chief Judge Katzmann actually took time to attend and participate in Annual Immigration Judge Training Conferences back in the day when the “powers that be” at DOJ and EOIR deemed such training to be a necessary ingredient of a fair judicial system — something that was eliminated by Sessions’s DOJ this year. Apparently, new, untrained Immigration Judges can be expected to “crank out” more final orders of removal than trained judges.)

When I was in Arlington, the vast majority of the non-detained respondents were represented, and the majority of those got some sort of relief — in other words, won their cases to some extent. As time went on, this development required the DHS to adjust its position and to stop “fully litigating” issues that experience and the law told them they were going to lose.

That, in turn, led to more efficient and focused hearings as well as decisions to drop certain types of cases as an exercise of prosecutorial discretion. Had that process been allowed to continue, rather than being artificially arrested by the Trump regime, it could well have eventually led to more efficient use of docket time and alternate means of disposing of cases that were “likely losers” or of no particular enforcement value to the DHS or the country at large.

By contrast, “haste makes waste” attempts to force cases through the system without representation or otherwise in violation of Due Process often led to appellate reversals, “do-overs,” and re-openings, all of which were less efficient for the system than “doing it right in the first place” would have been!

In my view (echoed at least to some extent by my colleague retired Judge Jeffrey Chase), more conscientious publication of BIA precedents granting asylum could and should have taken large blocks of asylum cases off the “full merits” dockets of Immigration Judges — either by allowing them to be “short docketed” with the use of stipulations or allowing them to be favorably disposed of by the DHS Asylum Offices.

No system that I’m aware of can fully litigate every single possible law violation. Indeed, our entire criminal justice system works overwhelmingly from “plea bargaining” that often bears little if any resemblance to “what actually happened.” Plea bargaining is a practical response that reflects the reality of our justice system and  the inherent limitations on judicial time. And effective plea bargaining requires lawyers on both sides as well as appropriate law development as guidance that can only happen when parties are represented. The absurd claim of Sessions and the DHS that the law allows them no discretion as to whether or not to bring certain categories of removal cases is just that — absurd and in direct contradiction of the rest of the U.S. justice system.

The current policies of the DHS and the DOJ, which work against Due Process, rather than seeking to take advantage of and actively promote it, are ultimately doomed to failure. The only question is how much of a mess, how many wasted resources, and how much pain and unfairness they will create in the process of failing.

Andrea Saenz, mentioned in the article is a former Judicial Law clerk at the New York Immigration Court. I have always admired her clear, concise, “accessible” legal writing — much like that of Judge Jeffrey Chase — and have told her so.

I am also proud that a number of attorneys involved in the “New York Project” and the Brooklyn Defenders are alums of the Arlington Immigration Court or my Georgetown Law RLP class — in other words, charter members of the “New Due Process Army!”  They are literally changing our system, one case and one individual life at a time. And, they and their successors will still be at it long after guys like Jeff Sessions and his restrictionist cronies and their legally and morally bankrupt philosophies have faded from the scene.

Thanks to my friend the amazing Professor Alberto Benítez from the GW Law Immigration Clinic for sending me this item!

PWS

11-10-17

GONZO’S WORLD: WARNING — GONZO ATTACKS LAWYERS WHO DARE TO DEFEND THE CONSTITUTIONAL RIGHTS OF MIGRANTS!

http://www.slate.com/blogs/the_slatest/2017/11/03/justice_department_declares_war_on_aclu_attorneys_who_oppose_trump.html Continue reading GONZO’S WORLD: WARNING — GONZO ATTACKS LAWYERS WHO DARE TO DEFEND THE CONSTITUTIONAL RIGHTS OF MIGRANTS!

GOIN’ DOWN AGAIN! — DC Cir. Rejects Trump Administration’s Position — Orders USG To Permit Undocumented Teen’s Abortion!

https://www.washingtonpost.com/local/public-safety/appeals-court-in-washington-allows-detained-immigrant-teen-to-seek-abortion/2017/10/24/51811cd8-b8c8-11e7-9e58-e6288544af98_story.html

Maria Sacchetti and Ann E. Marimow report for the Washington Post:

 

“An undocumented immigrant teen asking to end her pregnancy is entitled to seek an abortion without delay, according to a ruling Tuesday from a federal appeals court in Washington.

The order from the full U.S. Court of Appeals for the D.C. Circuit — without oral argument — reverses a decision last week from a three-judge panel of the same court that would have postponed the abortion for the 17-year-old who is being held in federal custody in Texas. The Trump administration had denied the teen’s request, citing the government’s new policy of refusing to “facilitate” abortions for unaccompanied minors.

The timeline was at issue because the teenager is more than 15 weeks pregnant and Texas law bans most abortions after 20 weeks.

The 6-3 ruling sent the case back to a lower court judge who within hours of the decision had ordered the government to “promptly and without delay” transport the teen to a Texas abortion provider.

“Today’s decision rights a grave constitutional wrong by the government,” D.C. Circuit Judge Patricia A. Millett wrote.

In the dissent were the court’s three active judges nominated to the bench by Republican presidents. Judge Brett M. Kavanaugh said the majority has “badly erred” and created a new right for undocumented immigrant minors in custody to “immediate abortion on demand.”

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Read the complete story at the link.

Not to worry, Judge K.  Your Anti-Constitution, Anti- Abortion “creds” remain intact. So you should still have a shot at the next Trump Supreme appointment.

Will the Trumpsters now seek “Supreme Intervention?”

PWS

10-24-17

 

DRAMA CONTINUES FOR PREGNANT TEEN AS APPEALS COURT LOOKS TO “BROKER DEAL” WITHOUT DECIDING ANYTHING!

http://www.slate.com/blogs/the_slatest/2017/10/20/d_c_circuit_s_dubious_compromise_won_t_guarantee_undocumented_minor_s_abortion.html

Mark Joseph Stern reports for Slate:

“On Friday afternoon, the U.S. Court of Appeals for the District of Columbia Circuit granted an undocumented minor in federal custody conditional access to abortion—within the next few weeks. The decision marks a compromise by two conservative judges keen to preserve their anti-abortion bona fides without transgressing Supreme Court precedent, which clearly protects the minor’s right to terminate her pregnancy. This ruling will force the minor at the heart of this case, who is referred to as Jane Doe, to continue her unwanted pregnancy for at least 11 more days.

. . . .

Thus, it is quite possible that Kavanaugh’s handiwork will fail, and the government will be back in court in a few weeks arguing against Doe’s abortion rights. By that point, Doe will be approaching the point at which she cannot legally terminate her pregnancy in Texas. The government’s intervention has already prevented her from getting a first-trimester abortion, a simpler procedure than a second-trimester abortion. Now HHS has been handed a strategy to keep her pregnant for weeks longer. Kavanaugh may think he has played the conciliator in this case. But in reality, he’s given the government another chance to run down the clock on Doe’s abortion rights.”

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Read Stern’s complete article at the above link.

Looks to me like Judge Kavanaugh’s political instincts and desire to keep alive a possible nod for the Supremes trumps his responsibility to the Constitution, to litigants, and to the public to make tough decisions (which, after all, is what he actually gets paid for). Little wonder that trial judges (not as many places to “run and hide” at the “retail level”) often look at their “ivory tower” appellate colleagues with a jaundiced eye!

PWS

10-21-17

U.S. IMMIGRATON JUDGES: QUOTAS WILL SPELL THE END OF DUE PROCESS IN IMMIGRATION COURT!

HERE ARE TWO POSITION PAPERS PREPARED BY THE NATIONAL ASSOCIATION OF IMMIGRATION JUDGES (“NAIJ”) THE COLLECTIVE BARGAINING ORGANIZATION THAT REPRESENTS ALL U.S. IMMIGRATION JUDGES  (FULL DISCLOSURE: I am a Retired Member of the NAIJ)

NAIJ HAS GRAVE CONCERNS REGARDING IMPLEMENTATION OF QUOTAS ON IMMIGRATION JUDGE PERFORMANCE REVIEWS, October 18, 2017

“The imposition of quotas or deadlines on judges can impede justice and due process. For example, a respondent must be given a “reasonable opportunity” to examine and present evidence. Section 240(b) (4) (B) of the Act. Given that most respondents do not speak English as their primary language and much evidence has to be obtained from other countries, imposing a time frame for completion of cases interferes with a judge’s ability to assure that a respondent’s rights are respected.

Not only will individuals who appear in removal proceedings potentially suffer adverse consequences, but also the public’s interest in a fair, impartial and transparent tribunal will be jeopardized by implementation of such standards.

THE SOLUTION

While it cannot be denied that additional resources are desperately needed immediately, resources alone cannot solve the persistent problems facing our Immigration Courts. The problems highlighted by the response to the recent “surge” underscores the need to remove the Immigration Court from the political sphere of a law enforcement agency and assure its judicial independence. Structural reform can no longer be put on the back burner. Since the 1981 Select Commission on Immigration, the idea of creating an Article I court, similar to the U.S. Tax Court, has been advanced.xvi In the intervening years, a strong consensus has formed supporting this structural change.xvii For years experts debated the wisdom of far-reaching restructuring of the Immigration Court system. Now “[m]ost immigration judges and attorneys agree the long term solution to the problem is to restructure the immigration court

system….” xviii

The time has come to undertake structural reform of the Immigration Courts. It is apparent that until far-reaching changes are made, the problems which have plagued our tribunals for decades will persist. For years NAIJ has advocated establishment of an Article I court. We cannot expect a different outcome unless we change our approach to the persistent problems facing our court system. Acting now will be cost effective and will improve the speed, efficiency and fairness of the process we afford to the public we serve. Our tribunals are often the only face of the United States justice system that these foreign born individuals experience, and it must properly reflect the principles upon which our country was founded. Action is needed now on this urgent priority for the Immigration Courts. It is time to stop the cycle of overlooking this important component of the immigration enforcement system – it will be a positive step for enforcement, due process and humanitarian treatment of all respondents in our proceedings.

6

NAIJ CONCERNS RE QUOTAS

AILA Doc. No 17102062.  (Posted 10/20/17)

We realize that immediate action is needed, and that a structural overhaul and creation of an Article I Court, while the best and only durable solution, may not be feasible right now. However, Congress can act easily and swiftly resolve this problem through a simple amendment to the civil service statute on performance reviews. . Recognizing that performance evaluations are antithetical to judicial independence, Congress exempted Administrative Law Judges (ALJs) from performance appraisals and ratings by including them in the list of occupations exempt from performance reviews in 5 U.S.C. § 4301(2)(D). This provision lists ALJs as one of eight categories (A through H) of employees who are excluded from the requirement of performance appraisals and ratings.xix To provide that same exemption to Immigration Judges, all that would be needed is an amendment to 5 U.S.C. § 4301(2) which would add a new paragraph (I) listing Immigration Judges in that list of exempt employees.

We urge you to take this important step to protect judicial independence at the Immigration Courts by enacting legislation as described above.

Thank you.

FOR ADDITIONAL INFORMATION, CONTACT

THE HONORABLE A. ASHLEY TABADDOR, PRESIDENT NATIONAL ASSOCIATION OF IMMIGRATION JUDGES C/o Immigration Court
606 S. Olive Street, 15th Floor

Los Angeles, CA 90014 (310)709-3580 ashleytabaddor@gmail.com www.naij-usa.org

Read the complete memo at this link:

NAIJ2

 

Threat to Due Process and Judicial Independence Caused by Performance Quotas on Immigration Judges

“15) If EOIR is successful in tying case completion quotas to judge performance evaluations, it could be the death knell for judicial independence in the Immigration Courts. Judges can face potential termination for good faith legal decisions of which their supervisors do not approve.

16) In addition, Circuit Courts will be severely adversely impacted and we will simply be repeating history which has proven to be disastrous. One need only remember the lasting impact of Attorney General Ashcroft’s “streamlining” initiative at the Board of Immigration Appeals.

17) The United States Government Accountability Office issued its report entitled “IMMIGRATION COURTS-Actions Needed to Reduce Case Backlog and Address Long-Standing Management and Operational Challenges Report to Congressional Requesters” in June 2017, GAO-17-438, (GAO Report). This GAO Report contains a section entitled, “Comprehensive Performance Assessment Could Help EOIR Identify Effective Management Approaches to Address the Case Backlog;” however, nowhere is the suggestion made that numerical or time based criteria be added to performance evaluations for immigration judges. AILA Doc. No 17102061. (Posted 10/20/17)

18) There is no reason for the agency to have production and quantity based measures tied to judge performance reviews. The current court backlog cannot be attributed to a lack of Immigration Judge productivity. In fact, the GAO report shows that Immigration Judge related continuances have decreased (down 2 percent) in the last ten years. GAO Report at 124. The same report shows that continuances due to “operational factors” and details of Immigration Judges were up 149% and 112%, respectively. GAO Report at 131, 133. These continuances, where Judges were forced to reset cases that were near completion in order to address cases that were priorities of various administrations, have a much greater impact on case completion rates. 19) The imposition of quotas or deadlines on judges can impede justice and due process. For example, a respondent must be given a “reasonable opportunity” to examine and present evidence. Section 240(b) (4) (B) of the Act. Given that most respondents do not speak English as their primary language and much evidence has to be obtained from other countries, imposing a time frame for completion of cases interferes with a judge’s ability to assure that a respondent’s rights are respected.”

Read this entire memorandum at the following link:

NAIJ1

 

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Folks, Due Process is “on the run” at the U.S. Immigration Courts. If Congress doesn’t take at least some corrective action to protect quasi-judicial independence, our U.S. Immigration Courts will no longer be able to provide fair and impartial adjudication in accordance with Constitutional requirements. Today, the statutory and Constitutional rights of immigrants are under attack. Tomorrow it could be YOUR Constitutional rights. Who is going to speak up for YOUR RIGHTS if YOU are indifferent to the rights of others?

PWS

10-21-17