AMERICA’S KANGAROO COURT SYSTEM: EOIR HELPING DHS COME UP WITH WAYS TO DUMP ON UNACCOMPANIED KIDS! — THE “THE FACADE OF JUSTICE AT JUSTICE” CONTINUES WHILE CONGRESS AND ARTICLE III COURTS ABDICATE RESPONSIBILITY FOR A SYSTEM THAT MOCKS DUE PROCESS AND THE CONSTITUTION! — CNN’S Tal Kopan With The Scoop!

http://www.cnn.com/2017/10/11/politics/trump-administration-dhs-immigration-policies/index.html

Tal reports:

“Washington (CNN)Even as the Trump administration is asking Congress to approve a tough overhaul of the nation’s immigration laws, the Department of Homeland Security is also quietly exploring ways it could transform the US immigration system on its own.

The department has been examining a range of subtle modifications to immigration policies that could have major consequences, including limiting protections for unaccompanied minors who come to the US illegally, expanding the use of speedy deportation proceedings, and tightening visa programs in ways that could limit legal immigration to the US, according to multiple sources familiar with the plans.
None of the policies being explored are finalized, according to the sources, and are in various stages of development. Any of them could change or fall by the wayside. Some of them are also included at least in part in the wish list of immigration priorities that President Donald Trump sent to Congress this week, and it’s unclear whether the administration will wait to see the results of negotiations over the future of the Deferred Action for Childhood Arrivals (DACA) program that President Donald Trump has chosen to end.

Still, the proposals under consideration illustrate the extent to which the administration could attempt to dramatically change immigration in the US through unilateral executive action.
“Do you think Obama did a lot? That’s my answer,” said one former DHS official when asked how transformative the change could be. “They could do quite a bit.”
DACA itself was an example of how former President Barack Obama, frustrated with congressional inaction, sought to use executive authority to take action on immigration, putting in place the program to protect young undocumented immigrations brought to the US as children from deportation in 2012.
But the administration is now exploring rolling back more Obama-era policies, and changing even older systems.
DHS did not respond to a request for comment about the policies being explored or its process.
Targeting protections for unaccompanied minors
One effort underway is exploring what can be done about unaccompanied children (UACs), a category of undocumented immigrants who are caught illegally crossing the border into the US, are under age 18, and are not accompanied or met by a parent or guardian in the US. Those UACs, by law and legal settlement, are handed over to the Department of Health and Human Services for settling in the US, given protections from expedited removal proceedings and given special opportunities to pursue asylum cases in the US.
DHS and the Department of Justice have been exploring options to tighten the protections for UACs, including no longer considering them UACs if they’re reunited with parents or guardians in the US by HHS or once they turn 18.

In a previously unreported memo, obtained by CNN, the general counsel of the Executive Office of Immigration Review, which manages the nation’s immigration courts, wrote in a legal opinion that the administration would be able to decide a UAC was no longer eligible for protections — a sea change in the way the 2008 law granting those protections has been interpreted.
The Trump administration has portrayed the UAC protections as a loophole in the law that can be exploited by gangs, though experts have testified before Congress that the minors under the program are more likely to be victimized by gangs in the US due to a lack of a support network than to be gang members. The administration also has sought to crack down on parents who pay smugglers to bring their children into the US illegally, even to escape dangerous situations in Central America.
The White House also asked Congress to amend the 2008 law to restrict UAC protections.
In previously unreported comments made last month at a security conference in Washington, acting Immigration and Customs Enforcement Director Tom Homan said that ICE is actively looking at the adults HHS places UACs with, and if they are in the US illegally, they will be processed for deportation — and if a smuggler was paid, they could be prosecuted for human trafficking.
DOJ touts effects of surge of immigration judges sent to border
DOJ touts effects of surge of immigration judges sent to border
“You cannot hide in the shadows, you can’t be an illegal alien in the United States, have your undocumented child smuggled at the hands of a criminal organization, and stay in the shadows,” Homan said. “We’re going to put the parents in proceedings, immigration proceedings, at a minimum. … Is that cruel? I don’t think so. Because if that child is really escaping fear and persecution, he’s going to stand in front of an immigration judge to plead his case, his parents should be standing shoulder to shoulder with him. I call that parenting.”
DHS is also continuing to weigh its options to expand the use of expedited removal more generally — a speedier process of deportation that bypasses a lengthy court process in particular cases — as authorized by Trump’s January executive order on immigration.
Legal immigration tightening
Other efforts in the works include ways to tighten legal avenues to come to the US.
Two policies being looked at are the subject of litigation in the DC Circuit court — work authorizations for spouses of high-skilled visa holders and an expansion of a program that allows STEM students to stay in the US an extra two years for training.
Both policies were challenged in the courts, and now the administration is considering whether to roll them back.
On the spousal authorizations, DHS told the court as much in a filing last month, asking for extra time for the DHS review to finish.
That filing points to a DHS review of “all” of the agency’s immigration policies, citing the President’s Executive Order to “buy American and hire American.”
“Executive Order 13,788 is an intervening event necessitating careful, considered review of all of DHS’s immigration policies to ensure that the interests of US workers are being protected,” the attorneys wrote, citing the order’s instructions to create new rules, if necessary, “to protect the interests of United States workers in the administration of our immigration system.”
Trump admin quietly made asylum more difficult in the US
Trump admin quietly made asylum more difficult in the US
DHS has also moved to tighten asylum claim credibility thresholds, and is exploring asking Congress for more authority to do so. Another target is reportedly cultural exchange visas, which according to The Wall Street Journal are also under scrutiny after the “hire American” order.
Further unilateral moves wouldn’t even require policy changes, immigration attorneys fear. Attorneys who represent immigration clients fear that simply by slowing down the visa process, DHS could substantially decrease the number of immigrants admitted to the United States. US Citizenship and Immigration Services announced this summer it would begin requiring interviews for all green card applicants on employment and refugee grounds, and that it would roll out required interviews for other categories over time, adding a substantial and potentially lengthy hurdle to achieving legal permanent residency.
“If the wait time for naturalizations increases by three months, USCIS can naturalize 25% fewer people per year, which would mean millions of people over a four-year period,” said Leon Fresco, an immigration attorney and former Obama administration DOJ official. “Even without a policy change, the administration (can accomplish) dramatic reductions to legal immigration through increases in processing times and taking a hawkish approach to finding reasons for denials of immigration applications.”
DHS pointed CNN to statistics showing no increase in the rate of denials of immigration applications, though the backlog of pending applications has grown steadily over the past two years.
Internal jockeying
One-quarter of DACA renewals not in on deadline day
One-quarter of DACA renewals not in on deadline day
Sources familiar with the inner workings of DHS describe an environment where political appointees and policy staff with strongly held opinions circulate ideas that sometimes reach the press before front office and secretarial staff are even aware of the discussions.
While political appointees and career officials are not described as butting heads, some of policy ideas do end up moderated by career employees on practical grounds. One source also described some employees of USCIS, which administers DACA, as getting emotional when the plan was made to end the program.
“Once it gets to a senior level, there are pretty robust discussions,” another source familiar said. “And once it gets to that level there are folks with ideas, and then folks who have been around for a while who say, ‘That won’t work.'”
Those competing ideas are then ultimately decided on by the secretary and high-level decision makers, though sources say political appointees are sometimes in a position to have influence over what information flows to the front office and top officials.
“The secretary and the decision makers end up with that (dynamic),” the source said.”

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Immigration “Courts” run and controlled by Political Enforcement Officials and actively engaged in looking for ways to diminish the rights of individuals coming before them are not “real courts” and are not capable for delivering fair, unbiased, and impartial justice in accordance with the Due Process Clause of the U.S. Constitution. This kangaroo court system, operating under false premises, is unconstitutional (in addition to be incompetently administered)! 

Will the Article III Courts ever do their duty, put this corrupt and unlawful system out of its misery, and restore at least some semblance of due process and justice for immigrants? Or, will they “go along to get along” and thus make themselves part of one of the most shameful charades of justice In American Legal History?

7TH CIR. “SCHOOLS” BIA IN BIA’S OWN AUTHORITY TO GRANT WAIVER — ARTICLE III THWARTS BIA’S ATTEMPT TO “GET TO NO!” — Matter of KHAN, 26 I&N Dec. 797 (BIA 2016) BLOWN AWAY — BAEZ-SANCHEZ V. SESSIONS! — There’s Is Now A “Circuit Split” With The 3rd Cir., Which “Went Along To Get Along” With The BIA!

rssExec.pl

Baez-Sanchez v. Sessions, 7th Cir., 10-06-17 (published)

PANEL:  Before BAUER, EASTERBROOK, and HAMILTON, Circuit Judges.

OPINION BY: Judge EASTERBROOK

KEY QUOTE:

LDG addressed the question whether the Attorney Gen‐ eral has the authority to waive the inadmissibility of an alien seeking a U visa. We assumed that, in removal proceedings, IJs may exercise all of the Attorney General’s discretionary powers over immigration. The panel did not justify that as‐ sumption, because the parties had not doubted its correct‐ ness. But after LDG the Board concluded that the assumption is mistaken. In re Khan, 26 I&N Dec. 797 (2016), holds that IJs have only such powers as have been delegated and that the power to waive an alien’s inadmissibility during proceedings seeking U visas is not among them. The Third Circuit has agreed with that conclusion. Sunday v. Attorney General, 832 F.3d 211 (3d Cir. 2016). We must decide in this case whether to follow Sunday and Khan.
Delegation from the Attorney General to immigration judges is a matter of regulation, and arguably pertinent reg‐ ulations are scattered through Title 8 of the Code of Federal Regulations. The BIA in Khan observed, correctly, that the panel in LDG had not mentioned 8 C.F.R. §§235.2(d), 1235.2(d), which omit any delegation to IJs of the power to waive an alien’s admissibility. And that’s true, for those regu‐ lations concern the powers of District Directors rather than the powers of IJs. The principal regulation that does cover IJs’ authority is 8 C.F.R. §1003.10, which provides in part:
(a) Appointment. The immigration judges are attorneys whom the Attorney General appoints as administrative judges within the Office of the Chief Immigration Judge to conduct specified classes of proceedings, including hearings under section 240 of the [Immigration and Nationality] Act. Immigration judges shall act as the Attorney General’s delegates in the cases that come be‐ fore them.
(b) Powers and duties. In conducting hearings under section 240 of the Act and such other proceedings the Attorney General may assign to them, immigration judges shall exercise the powers and duties delegated to them by the Act and by the Attorney General through regulation. In deciding the individual cases be‐ fore them, and subject to the applicable governing standards, immigration judges shall exercise their independent judgment and discretion and may take any action consistent with their au‐ thorities under the Act and regulations that is appropriate and necessary for the disposition of such cases. Immigration judges shall administer oaths, receive evidence, and interrogate, exam‐ ine, and cross‐examine aliens and any witnesses. Subject to §§ 1003.35 and 1287.4 of this chapter, they may issue administra‐ tive subpoenas for the attendance of witnesses and the presenta‐ tion of evidence. In all cases, immigration judges shall seek to re‐ solve the questions before them in a timely and impartial man‐ ner consistent with the Act and regulations.

The Attorney General’s brief in this court observes that §1003.10(b) does not delegate to IJs any power to waive an alien’s inadmissibility. Sure enough, it doesn’t. But §1003.10(a) does. It says that “[i]mmigration judges shall act as the Attorney General’s delegates in the cases that come before them.” This sounds like a declaration that IJs may ex‐ ercise all of the Attorney General’s powers “in the cases that come before them”, unless some other regulation limits that general delegation. The BIA in Khan did not identify any provision that subtracts from the delegation in §1003.10(a). Nor did the Third Circuit in Sunday. Indeed, neither the BIA nor the Third Circuit cited §1003.10(a). We therefore adhere to the view of LDG that IJs may exercise the Attorney Gen‐ eral’s powers over immigration.”

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In the end, of course, the respondent didn’t win much. The 7th Circuit remanded the case to the BIA to “exercise Chevron authority” on the question of whether the Attorney General himself has been stripped of authority to grant these waivers by the legislation that established the DHS as a separate entity.

But, we already know the answer to that question. The BIA has no desire to exercise jurisdiction over this waiver. Indeed, to do so, could turn out to be “career threatening” if you work for notorious xenophobe Jeff Sessions.

Moreover, even before the advent of Sessions, the BIA abandoned any pretense of  impartiality in exercising Chevron jurisdiction. The BIA usually looks for the interpretation least favorable to the respondent, that of the DHS, and adopts that as it “preferred interpretation.”  To do otherwise could hamper any Administration’s efforts to achieve enforcement objectives, thereby endangering the BIA as an institution. Moreover, agreeing with the private litigant in a published decision could undermine the efforts of the DOJ’s Office of Immigration Litigation to facilitate successful defense of petitions for review removal orders in the Article III Courts.

If this sounds like a strange scenario for a supposedly fair, impartial, and unbiased “court” to adopt, that’s because it is! The BIA is there primarily to slap a “patina of due process” on removal orders without really interfering with the DHS’s “removal railroad.” And that’s useful because of Chevron and the ability of  OIL and the DOJ to disingenuously claim that respondents receive “full due process” from the Immigration Courts and the BIA and that Article III Courts, therefore, ought not to worry themselves about the results. And, in a surprising number of cases, the Article IIIs oblige. They don’t want to be stuck having to redo tens of thousands of mass produced BIA appeals.

So, what’s not to like about this system? The Attorney General gets his wholly owned courts to churn out removal orders that look fair (but really aren’t in many cases). The BIA Appellate Judges get to keep their high paying jobs in the Falls Church Tower without having to personally “face up” to the poor folks they are railroading out of the country to places where their lives and futures are in danger. OIL gets to buttress its narrow readings of immigration statutes against immigrants with so-called “court decisions” from the BIA that really aren’t really decisions by independent decision makers. The DHS gets lots of removal orders to keep the “Enforcer In Chief” happy, plus they gain leverage to use against any U.S. Immigration Judge who keeps ruling in favor of respondents. “We’ll just take you to the BIA and get it reversed.”  The Article IIIs get to largely avoid moral or legal responsibility for this facade of fairness and due process. Out of sight (which folks are when they get removed), out of mind. We’re just “deferring” to the BIA. Don’t blame us! And, don’t forget Congress! They get to pretend like none of this is happening and claim they are “solving” the problem just by throwing a few more positions and a little more money at EOIR. No need for meaningful oversight into the charade of due process in the U.S. Immigration Courts. And, there are a few guys over on the GOP side of the Hill who hate immigrants and despise due process as much as Sessions does. They undoubtedly see this as a model for the entire U.S. justice system, or better yet, have lots of ideas on how to avoid the Immigration Courts entirely and make the “removal railway” run even faster.

The only folks who aren’t served are the poor folks looking to the U.S. Immigration Courts as courts of last resort to save their lives, preserve their futures, or at least listen sympathetically to their case for remaining. Some of these poor fools actually believe all they stuff about Americans being fair and humane. Those guys were really discombobulated when I had to tell them that while I had absolutely no doubt that some very ”bad things” were going to happen to them upon return, that just doesn’t matter to the U.S. legal system. While I sometimes had the unenviable task of “telling it like it is,” the BIA, the DOJ, and the Federal Courts really couldn’t care less if migrants end up getting killed, raped, or maimed upon return or if their families in the U.S. have to go on welfare. There’s just no place for them in our system.

The other folks who might not come out so well are the rest of America — the non-xenophobes. Most Americans aren’t actually xenophobes in the Trump-Sessions-MIller-Bannon-GOP Restrictionist tradition. While those of us who know what’s happening might be powerless to stop it, we can document it for future generations. We’re making a record.

In the age of information, none of this is going away or going to be swept under an “eternal carpet.” Someday there will be a “day or recokening” for our descendants, just like the one for those of us whose current privilege was built on enslaved African American labor and its many benefits as well as by a century of “Jim Crow” laws which siphoned off African American Citizens’ Constitutional rights and human dignity and conferred them instead on undeserving white folks in both the South and the North.

We have certainly demonstrated that we can be “tone deaf” to both the motivations and the actual effects of our current broken immigration policies. Indeed, there can be no better evidence of that than the election of Trump and empowerment of his xenophobe racist cronies like Sessions and Miller.

But, in the end, we won’t escape the judgement of history, nor will they. The ugliness of our current immigration policies and practices, and the “false debate” about them (there, in fact is no legitimate case for the “restrictionist agenda” — just a racial and cultural one), might be buried in a barrage of alt-right media and “Sessions bogus law and fact free pronouncements.” But, someday, those are going to look just as “legit’ as Conferederate broadsides or the racially hateful rhetoric of Jefferson Davis do today outside the membership of various hate groups and the alt-right.

PWS

10-07-17

DOUBLE WHAMMY: BIA “BRAND X’s” Ninth Circuit On Material Misrepresentation & Extrajudicial Killings — Effectively Overrules Article III’s Interpretation! — Matter of D-R-, 27 I&N Dec. 105 ( BIA 2017)!

https://www.justice.gov/sites/default/files/pages/attachments/2017/09/14/3902_0.pdf

PANEL:  BIA Appellate Immigration Judges Grant, Malphrus, Mullane

OPINION BY: Judge Malphrus

HEADNOTES:

“(1) A misrepresentation is material under section 212(a)(6)(C)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(C)(i) (2012), when it tends to shut off a line of inquiry that is relevant to the alien’s admissibility and that would predictably have disclosed other facts relevant to his eligibility for a visa, other documentation, or admission to the United States. Forbes v. INS, 48 F.3d 439 (9th Cir. 1995), not followed.

(2) In determining whether an alien assisted or otherwise participated in extrajudicial killing, an adjudicator should consider (1) the nexus between the alien’s role, acts, or inaction and the extrajudicial killing and (2) his scienter, meaning his prior or contemporaneous knowledge of the killing. Miranda Alvarado v. Gonzales, 449 F.3d 915 (9th Cir. 2006), not followed.”

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Chief Justice John Marshall must be turning over in his grave at how with Chevron and Brand X the Supremes have turned the judicial authority of the United States over to administrative judges within the Executive Branch. Why have an Article III Judiciary at all if it is too timid, afraid, or unqualified to rule on questions of law?

PWS

09-18-17

 

 

 

5TH CIR BONKS BIA: Misdemeanor Evading Arrest Under Texas Penal Code § 38.04 (2011) Is NOT A CIMT! — Laryea v. Sessions

-5thCIMT

Laryea v. Sessions, 5th Cir., 09-12-17 (unpublished — sadly)

PANEL:

DAVIS, GRAVES, and COSTA, Circuit Judges.

PER CURIAM

KEY QUOTE:

“Here, examining the record of conviction, Laryea was convicted of a Class A misdemeanor, which does not involve flight using a vehicle. We hold that fleeing from a police officer, without more, does not rise to the level of moral turpitude because it is not “inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.”21 Therefore, we find that the conduct involved in Laryea’s offense, “intentionally flee[ing] from a person he knows is a peace officer

attempting lawfully to arrest or detain him,” is not a CIMT.”

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The standard for crimes involving moral turpitude seems to me to be completely subjective and highly arbitrary. Hard to see how it passes constitutional muster, but it has, over many years. Interestingly, it appears that this Respondent was able to file his own petition for review. I wonder if he had “informal help.”

PWS

09-14-17

 

 

THIS IS DUE PROCESS? — 10th Cir. Rips BIA’s Anti-Asylum Decision-Making — BIA Ignores Record, Makes Up Law To “Stick It” To PRC Asylum Seeker! — Qiu v. Sessions! — “The nonsensical nature of the BIA’s supposed reasoning on this point is illustrative of the BIA’s failure to give fair consideration to any of the arguments in Petitioner’s motion to reopen in this case, and it represents the very definition of an abuse of discretion!” — Read My Latest “Mini-Essay” — “HOW THE BIA FAILS TO PROVIDE FAIRNESS AND DUE PROCESS TO ASYLUM SEEKERS!”

16-9522

Qiu v. Sessions, 10th Cir., 09-12-17

PANEL: PHILLIPS, McKAY, and McHUGH, Circuit Judges.

OPINION BY: Judge McKay

KEY QUOTES:

The BIA held that Petitioner had not submitted sufficient evidence to show a change in country conditions, and thus that her motion to reopen was untimely under 8 U.S.C. § 1229a(c)(7)(C). The BIA first held that Petitioner had not submitted sufficient evidence to show that the treatment of Christians in China has worsened since her 2011 immigration hearing. This factual finding is not supported by substantial—or, indeed, any—evidence in the record. The agency provided no rational explanation as to how numerous accounts of a 300 percent increase in the persecution of Christians, “unprecedented violations” of religious freedoms beginning in 2014, and possibly “the most egregious and persistent” wave of persecution against Christians since the Cultural Revolution of 1966–76 was insufficient to show that the treatment of Christians in China had worsened since 2011. Nor is there anything in the record that would contradict Petitioner’s extensive evidence of a substantial increase in the government’s mistreatment of Christians since 2011. The BIA pointed to the fact that some portions of the State Department’s 2014 report include substantially similar language to the 2008 and 2009 reports. However, the State Department’s habit of cutting and pasting portions of its old reports into newer reports does nothing to refute all of the other evidence that the level and intensity of persecution against Christians has increased significantly since 2011. Nor does anything in the State Department report suggest that the U.S. Commission and various human-rights organizations are all reporting false data or drawing false conclusions about the deterioration of the treatment of Christians in China. The BIA thus abused its discretion by holding, completely contrary to all of the evidence, that Petitioner had not shown that the treatment of Christians in China has worsened in recent years.

The BIA also suggested that the substantial increase in the persecution of Christians was simply irrelevant because “[a] review of the record before the Immigration Judge indicated that China has long repressed religious freedom, and that underground or unregistered churches continued to experience varying degrees of official interference, harassment, and repression, including breaking up services, fines, detention, beatings, and torture.” (R. at 5.) However, the fact that there was already some level of persecution in China does not prevent Petitioner from showing a change in country conditions due to a significant increase in the level of persecution faced by Christians in her country. To hold otherwise would be to bar reopening for petitioners who file for asylum when they face some, albeit insufficient, risk of persecution in their country, while permitting reopening for petitioners who file for asylum without there being any danger of persecution, then seek reopening after their country fortuitously begins persecuting people who are in their protected category thereafter. But surely Congress did not intend for 8 U.S.C. § 1229a(c)(7)(C) to protect only petitioners who file frivolous asylum applications under no threat of persecution, while extending no help to petitioners who seek reopening after an existing pattern of persecution becomes dramatically worse. The BIA’s reasoning would lead to an absurd result, one we cannot condone.

Instead, we agree with the Second, Seventh, Ninth, and Eleventh Circuits that a significant increase in the level of persecution constitutes a material change in country conditions for purposes of 8 U.S.C. § 1229a(c)(7)(C) and that the BIA abuses its discretion when it fails to assess and consider a petitioner’s evidence that the persecution of others in his protected category has substantially worsened since the initial application. See Paul v. Gonzales, 444 F.3d 148, 157 (2d Cir. 2006) (“Proof that persecution of Christians in Pakistan has become more common, intense, or far-reaching—i.e., the very proof that petitioner purports to have presented in filing his motion to reopen—would clearly bear on this objective inquiry [into the likelihood of future persecution]. Under the circumstances, the BIA’s refusal even to consider such evidence constitutes an abuse of discretion.”); Poradisova v. Gonzales, 420 F.3d 70, 81–82 (2d Cir. 2005) (holding that the BIA abused its discretion in denying a motion to reopen based on worsened country conditions: evidence that the human-rights situation in Belarus is “in an ‘accelerating deterioration’” and “that the situation has worsened since the Poradisovs’ original application” “certainly warranted more than a perfunctory (and clearly inaccurate) mention by the BIA as being ‘merely cumulative’”); Shu Han Liu v. Holder, 718 F.3d 706, 709, 712–13 (7th Cir. 2013) (holding that a petitioner seeking to file an untimely motion to reopen must meet her burden of “show[ing] that Chinese persecution of Christians (of her type) had worsened,” and concluding that the BIA abused its discretion in ignoring evidence that current conditions in China were worse than conditions at the date of the petitioner’s final removal hearing); Chandra v. Holder, 751 F.3d 1034, 1039 (9th Cir. 2014) (“The BIA abused its discretion when it failed to assess Chandra’s evidence that treatment of Christians in Indonesia had deteriorated since his 2002 removal hearing.”); Jiang v. U.S. Attorney Gen., 568 F.3d 1252, 1258 (11th Cir. 2009) (holding that the BIA clearly abused its discretion by overlooking or “inexplicably discount[ing]” evidence of “the recent increased enforcement of the one-child policy” in the petitioner’s province and hometown).

Finally, the BIA rejected Petitioner’s mother’s statement regarding her recent religious persecution in Petitioner’s hometown as both unreliable and irrelevant. The BIA held that the statement was unreliable for two reasons: (1) it was unsworn, and (2) it was prepared for the purposes of litigation. The first of these reasons is incorrect both as a matter of fact and as a matter of law. Petitioner’s mother concluded her statement by expressly swearing to the truth of everything she had stated therein, and thus the BIA’s factual finding that the statement was unsworn is refuted by the record. And even if the BIA were correct in its factual finding, we note that several “[o]ther circuits have admonished the Board for dismissing or according little weight to a statement due to its unsworn nature.” Yu Yun Zhang v. Holder, 702 F.3d 878, 881 (6th Cir. 2012). There is no statutory support for the BIA’s contention that documents at immigration hearings must be sworn, and “numerous courts,” “without so much as pausing to note the unsworn nature of a document, . . . have relied on such documents when considering claims of asylum applicants.” Zuh v. Mukasey, 547 F.3d 504, 509 (4th Cir. 2008). “Moreover,” the Fourth Circuit noted in Zuh, “it seems untenable to require a sworn statement from a person harassed because of a relationship with an asylum applicant and potentially endangered by helping that applicant.” Id.; see also Yu Yun Zhang, 702 F.3d at 881 (“Given the documented persecution of Christians in China, it seems an arbitrarily high threshold to require that letters attesting to government abuse and admitting membership in a persecuted organization be notarized.”).

As for the BIA’s second reason for rejecting the statement as unreliable, the fact that the evidence was prepared while litigation was ongoing is all but inevitable in the context of a motion to reopen, and we hold that the BIA may not entirely dismiss an asylum applicant’s evidence as unreliable based solely on the timing of its creation. Neither the BIA decision nor the government brief cites to a single statute or circuit court decision to support the idea that the timing of a statement’s creation is a dispositive or even permissible factor in evaluating its reliability in an asylum case. Furthermore, we note that the Sixth Circuit has held that it simply “does not matter that [evidence] may have been written for the express purpose of supporting [a petitioner’s] motion to reopen,” citing for support to a Ninth Circuit case which held that the BIA may not “denigrate the credibility” of letters written by the petitioner’s friends based simply on the inference that her friends “‘would tend to write supportive letters.’” Yu Yun Zhang, 702 F.3d at 882 (quoting Zavala-Bonilla v. INS, 730 F.3d 562, 565 (9th Cir. 1984)). We need not resolve this broader question in the case before us today; even if the timing of a statement’s creation might perhaps play some role in determining its credibility and the weight it should be afforded, the BIA cannot entirely dismiss a statement as unreliable based simply on the fact that it was prepared for purposes of litigation. The protections that the asylum statute was intended to provide would be gutted if we permitted the BIA to entirely reject all evidence presented by an asylum applicant that is prepared following the filing of the initial asylum application, and we see neither legal or logical support for such a ruling. We accordingly hold that the BIA abused its discretion in this case by rejecting Petitioner’s mother’s statement as unreliable based solely on the (erroneous) finding that it was unsworn and on the timing of its creation.

Finally, the BIA dismissed Petitioner’s mother’s statement as irrelevant because “the respondent’s mother is not similarly situated to the respondent, inasmuch as the incidents giving rise to her purported violations occurred in China, not in the United States.” (R. at 4.) This reasoning defies understanding. The heart of the matter is whether Petitioner will be persecuted if she is removed to China—to the town where her mother has allegedly been persecuted for the religious beliefs she shares with Petitioner, and where the local police have allegedly made threatening statements about Petitioner—and it is simply absurd to dismiss her mother’s experiences as irrelevant because her mother’s experiences occurred in China. Indeed, it is the very fact that her mother’s experiences occurred in China that makes them relevant to Petitioner’s motion to reopen. Tinasmuch as the incidents giving rise to her purported violations occurred in China, not in the United States.” (R. at 4.) This reasoning defies understanding. The heart of the matter is whether Petitioner will be persecuted if she is removed to China—to the town where her mother has allegedly been persecuted for the religious beliefs she shares with Petitioner, and where the local police have allegedly made threatening statements about Petitioner—and it is simply absurd to dismiss her mother’s experiences as irrelevant because her mother’s experiences occurred in China. Indeed, it is the very fact that her mother’s experiences occurred in China that makes them relevant to Petitioner’s motion to reopen. The nonsensical nature of the BIA’s supposed reasoning on this point is illustrative of the BIA’s failure to give fair consideration to any of the arguments in Petitioner’s motion to reopen in this case, and it represents the very definition of an abuse of discretion. 

The BIA provided no rational, factually supported reason for denying Petitioner’s motion to reopen. We conclude that the BIA abused its discretion by denying the motion on factually erroneous, legally frivolous, and logically unsound grounds, and we accordingly remand this case back to the BIA for further consideration. In so doing, we express no opinion as to the ultimate merits of the case.”

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HOW THE BIA FAILS TO PROVIDE FAIRNESS AND DUE PROCESS TO ASYLUM SEEKERS

By

Paul Wickham Schmidt

United States Immigration Judge (Retired)

Everyone should read the Tenth Circuit’s full opinion detailing the mounds of evidence that the BIA ignored and/or mischaracterized, at the above ink.

Folks, the 10th Circuit, former home of Justice Neil Gorsuch, is hardly known as a “haven” for asylum seekers. So, that the 10th finally is fed up with the BIA’s biased anti-asylum seeker decision making speaks volumes.

I’ve made the observation before that the BIA appears to be on “anti-asylum autopilot.” This looks for all the world like a “cut and paste” denial mass-produced by BIA staff from boilerplate that is unrelated to the facts, evidence, or, as this case shows, even the law. The BIA sometimes twists the law against asylum seekers; other times, as in this case, the BIA simply pretends that the law doesn’t exist by ignoring it. I can just imagine the BIA opinion drafter thinking to him or her self, “Oh boy, another routine PRC motion denial. This should sail through the panel without any problem.  Need to get those numbers up for the month.”

This is not an isolated incident. As I’ve pointed out before, there is a strong anti-asylum bias in the BIA’s decisions. Virtually no BIA precedents (particularly since the “Ashcroft purge” when true deliberation and dissent were tossed out the window) illustrate how commonly arising situations can and should result in many more grants to asylum seekers under the generous principles enunciated by the Supreme Court in INS v. Cardoza-Fonseca and by the BIA in Matter of Mogharrabi, yet routinely ignored by today’s BIA.

The majority of asylum seekers are credible individuals coming from countries where persecution, torture, and human rights abuses are well-documented. Even in the Northern Triangle, where the BIA has intentionally skewed the law against asylum seekers, torture by gangs by and cartels while the corrupt government authorities are either complicit or “willfully blind” abounds. The BIA, and some U.S. Immigration Judges, have to work overtime and routimely turn a blind eye to both facts and the law to deny protection in the majority of cases.

At a minimum, most Southern Border arrivals fleeing gang violence should be getting temporary grants of protection under the CAT. Instead, they are often railroaded out of the country, sometimes without even seeing a U.S. Immigration Judge, other times with no legal assistance to help them in making a claim. And, the Sessions-led Justice Department had the absolute gall to claim that this lawless and unconstitutional behavior amounts to a “return to the rule of law” at EOIR!

Where’s the outrage from this type of gross abuse of the system by politicos who should have no role in the operations of the U.S. Immigration Courts? Where is the Congressional oversight of Sessions’s use of the USDOJ as a tool to advance a blatantly restrictionist, White Nationalist political agenda? How does a system that functions this poorly, on all levels, justify elimination of annual in-person training of U.S. Immigration Judges?

When you read the full decision, you can see the voluminous evidentiary package that the respondent’s counsel put together just to get a reopened hearing. And, it resulted in an illegal denial by the BIA. Only an appeal to a Court of Appeals saved the day. How could any unrepresented asylum seeker achieve due process in a system that demands unreasonable documentation, routinely denies individuals the legal assistance necessary to assemble and present such evidence, and then ignores the evidence when it is presented? What kind of due process is this?

And, the Article III Courts have to shoulder some of blame. In particular, the Fifth Circuit “goes along to get along” with the BIA, and turns a blind eye to violations of human rights laws and skewed factfinding in “rubber stamping” inadequate hearings coming from detention centers in obscure locations in Texas.

Reiterating a point I’ve made numerous times, why is a captive, enforcement-oriented, pro-Government tribunal that performs in the manner detailed in this case entitled to “deference” on either the facts or the law (so-called “Cheveon deference” that has been criticized by Justice Gorsuch and others)? What’s “expert” about a tribunal that routinely ignores and misconstrues basic asylum law as detailed in this decision?

At a minimum, in light of the types of gross miscarriages of justice that have come to light in some recent Court of Appeals decisions, the BIA should change its internal operating procedures to require that all asylum denials be reviewed by a  three-judge panel. But, don’t hold your breath. That would slow down the “assembly line” at the “Falls Church Service Center.” And turning out large numbers of final orders of removal without any real deliberation is what the “Sessions-Era BIA & EOIR” is all about.

Folks, we need an independent U.S. Immigration Court, including a competent Appellate Division (“BIA”). And in the future, selections of BIA Appellate Immigration Judges should be made in the same careful manner that applies to U.S. Supreme Court and Court of Appeals Judges.

The “life and death” power wielded by U.S. Immigration Judges and BIA Appellate Immigration Judges actually exceeds that of most Article III Judges. Yet the selection process for the Immigration Judiciary is opaque, cumbersome, secretive, closed, and consistently produces one-sided results skewed toward “insiders” or those with government experience. In other words, those with a history of “going along to get along” in the system rather than showing independent thinking and the courage to stand up for due process even when  it isn’t “in vogue” with the politicos in an Administration (and genuine due process for migrants is seldom”in vogue” these days in either GOP or Democratic Administrations).

Proven expertise, excellence, sensitivity to individual situations, and commitment to due process for migrants and correct application of human rights law and protections should be a minimum qualification for an Appellate Immigration Judge. And, the same question should be asked that was asked of Justice Gorsuch: “If necessary, are you willing to stand up and rule against the President and the Administration.” Obviously, in the case of the current BIA, the answer would largely be “No.”

PWS

09-13-17

 

UNPUBLISHED 2D CIR REMINDS BIA THAT “PERSECUTION”DOESN’T REQUIRE ACTUAL PHYSICAL HARM — Mann v. Sessions

MANN AKA v. SESSIONS III | FindLaw

KEY QUOTE:

“Were the only grounds available to Mann those of future persecution, we would be inclined to affirm. But however unsuccessful Mann’s case may be with respect to future persecution, without a full consideration of the first prong of “persecution”, that is, of “past persecution”, the IJ’s analysis is incomplete, and thus the result in this suit invalid. In evaluating a past persecution claim, the agency must consider the harm suffered in the aggregate.

In evaluating a past persecution claim, the agency must consider the harm suffered in the aggregate. Poradisova, 420 F.3d at 79-80. Past persecution can be established by harm other than threats to life or freedom, including “non-life-threatening violence and physical abuse,” Beskovic v. Gonzales, 467 F.3d 223, 226 n.3 (2d Cir. 2006). And, while the harm must be severe, rising above “mere harassment,” Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d Cir. 2006), it is sufficient, in order to show past persecution, that the applicant was “within the zone of risk when [a] family member was harmed, and suffered some continuing hardship after the incident.” Tao Jiang v. Gonzales, 500 F.3d 137, 141 (2d Cir. 2007).

Mann’s claim of past persecution rested on the following incidents: Mann and his brother were longtime members of the Congress Party. Members of opposition parties, the Akali Dal Party and the Bharatiya Janata Party (“BJP”) had successively solicited Mann and his brother’s departure from the Congress Party to join their parties. After Mann and his brother refused to depart the Congress Party, the opposition party members stopped Mann and his brother in the street and assaulted Mann’s brother. At the time of the assault, both Mann and his brother were in a car in the middle of doing political work. Mann managed to escape the car and their attackers. His brother, however, was severely injured: he both lost a leg and suffered mental incapacitation. Subsequently, Mann fled his hometown, residing in Chandigarh, a neighboring city, for two months, and, after that, moved to Delhi. During that time, his family was responsible for caring for his brother’s permanent disabilities and injuries.

Upon review, the IJ found the fact that Mann himself had not suffered physical harm to be dispositive of his past persecution claim. Yet physical harm is not always needed for a showing of past persecution. And, it is not required in an analysis undertaken under Tao Jiang’s “zone of risk” and “continuing hardship” tests.

Because (i) the IJ’s analysis does not directly address the question of whether Mann was sufficiently within “the zone of risk” when a family member (here, his brother) was seriously harmed, and, (ii) it is certainly conceivable that on direct reconsideration Mann’s flight from his hometown and help to his family in caring for his brother constitutes the sufferance of “some continuing hardship,” we hereby GRANT Mann’s petition for review, and VACATE the decision of the BIA. We REMAND Mann’s claim of persecution to the BIA for further consideration in light of Tao Jiang’s “zone of risk” and “continuing hardship” requirements.”

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Another example of faulty asylum analysis by the BIA. Why does the Supreme Court require Federal Courts to “defer” to a supposedly “expert” administrative tribunal that all too often appears to have less expertise in applying asylum law than the Article III Courts? Also, why doesn’t the Second Circuit publish helpful cases like this so that they can be widely cited and used as a tool to improve BIA adjudications?

According to the UN Handbook, credible asylum seekers should be given “the benefit of the doubt.” That’s not happening in some Immigration Courts and on some BIA panels.Why not? What’s the excuse?

Just another example of why we need an independent Article I Immigration Court. And, we need a diverse BIA with real expertise and an overriding commitment to fairness, due process, careful appellate adjudication, and correct application of  human rights laws.

PWS

09-11-17

 

3RD CIR REAFFIRMS THAT 18 USC 16(B) “CRIME OF VIOLENCE” AS INCORPORATED INTO THE INA IS UNCONSTITUTIONALLY VAGUE: Mateo v. Attorney General — Supremes Remain MIA

151160p

Before: McKEE, JORDAN, and VANASKIE, Circuit Judges.

OPINION BY: JUDGE VANASKIE

KEY QUOTE:

“The petitioner in Baptiste, like Mateo, faced removal on the basis of his purported status as an alien convicted of a crime of violence under § 16(b). As stated previously, § 16(b) defines a crime of violence as “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” In order to determine whether the crime of conviction is a crime of violence under § 16(b), courts utilize the same categorical approach that was applied to the ACCA’s residual clause. Baptiste, 841 F.3d at 617. The petitioner in Baptiste argued that the Supreme Court’s holding in Johnson striking down the residual clause should apply to negate § 16(b). After comparing the features of the § 16(b) analysis to those found to contribute to the unconstitutionality of the residual clause in Johnson, we agreed that the same defects were present in § 16(b), rendering the provision unconstitutional. Regarding the first feature, we recognized that the same “ordinary case inquiry” is used when applying the categorical approach in both contexts. Id. Like the residual clause, § 16(b) “offers no reliable way to choose between . . . competing accounts of what” that “judge- imagined abstraction” of the crime involves. Johnson, 135 S.Ct. at 2558. Thus, we concluded in Baptiste that “the ordinary case inquiry is as indeterminate in the § 16(b) context as it was in the residual clause context.” 841 F.3d at 617. Turning to the second feature—the risk inquiry—we observed that despite slight linguistic differences between the provisions, the same indeterminacy inherent in the residual clause was present in § 16(b). Id. “[B]ecause the two inquiries under the residual clause that the Supreme Court found to be indeterminate—the ordinary case inquiry and the serious potential risk inquiry—are materially the same as the inquiries under § 16(b),” we concluded that “§ 16(b) is unconstitutionally vague.” Id. at 621. This conclusion applies equally to Mateo’s petition. Our treatment of § 16(b) is in step with the Sixth, Ninth, and Eleventh Circuits, which have all similarly deemed the provision to be void for vagueness in immigration cases. See Shuti, 828 F.3d at 451; Dimaya, 803 F.3d at 1120; Golicov v. Lynch, 837 F.3d 1065, 1072 (10th Cir. 2016). The Seventh Circuit has also taken this position in the criminal context. See United States v. Vivas-Ceja, 808 F.3d 719, 723 (7th Cir. 2015). In fact, the only circuit that has broken stride is the Fifth Circuit.7 See United States v. Gonzalez-Longoria, 831 F.3d 670, 677 (5th Cir. 2016) (en banc). In the meantime, we await the Supreme Court’s decision in the appeal of Dimaya.”

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The Dimaya case before the Supremes (again) should be a good test of whether newest Justice Gorsuch will adhere to his strict constructionist principles where they will produce a favorable result for a migrant under the immigration laws.

The Johnson case, relied on by the Third Circuit, was written by none other than the late Justice Antonin Scalia, a leading strict constructionist and conservative judicial icon, who nevertheless found that his path sometimes assisted migrants in avoiding removal.  So, on paper, this should be a “no brainer” for Justice Gorsuch, who has also been critical of some of the BIA’s “Chevron overreach” and non-responsiveness to Article III Courts.

PWS

09-07-17

 

GOBBLEDYGOOK CENTRAL: After 12 Years Kicking Around The System, 9th Circuit Declines Chevron Deference To Matter of Cortez Canales, 25 I. & N. Dec. 301 (BIA 2010) & Punts Issue Back To BIA — Lozano-Arredondo v. Sessions — Why “Chevron Must Go!” — Somewhere In This Judicially-Created Mess, It’s All About A 2-Decades Old “Petty Theft” Conviction!

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/08/08/11-72422.pdf

Key quote:

“We grant Lozano-Arredondo’s petition and remand to the BIA. We hold, first, that petit theft under Idaho law does not qualify categorically as a crime involving moral turpitude. We also hold that under the modified categorical approach, the record of conviction is inconclusive. Because the effect of that inconclusive record presents an open legal question now pending before another panel of this court, our analysis ends there. On remand, once this burden of proof question is resolved, the BIA should determine whether Lozano- Arredondo’s conviction qualifies as a crime involving moral turpitude under the modified categorical approach, unless the case is resolved on other grounds.

Second, we hold the BIA erred by deciding at Chevron step one that an “offense under” § 1227(a)(2)(A)(i) does not include the within-five-years element. Because the BIA “erroneously contends that Congress’ intent has been clearly

24 LOZANO-ARREDONDO V. SESSIONS

expressed and has rested on that ground, we remand to require the agency to consider the question afresh.” Delgado, 648 F.3d at 1103–04 n.12 (quoting Negusie, 555 U.S. at 523) (internal quotation marks omitted); see INS v. Ventura, 537 U.S. 12, 16–17 (2002). In light of this holding and the explanations we have given, the BIA must reconsider its interpretation of the phrase “offense under” in § 1229b(b)(1)(C).”

PANEL:  Circuit Judges William A. Fletcher, Raymond C. Fisher and N. Randy Smith

OPINION BY: Judge Fisher

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

Com’ on Man! This case has been around the system since 2005 — 12 years! The conviction is now two decades old. The case depends on two legal questions.

The 9th Circuit should answer the legal questions and either 1) affirm the BIA’s final order of removal, or 2) remand the case to the BIA to apply the law that has been determined by the 9th Circuit to the facts of this case. The court’s prose is impenetrable; the court’s rationale, based on Chevron, is irrational.

It’s time for Chevron to go and for Article III Courts to do their job of deciding legal questions rather than bogging down the system with infinite delays through needless remands to have the BIA pass on difficult legal questions. That’s the Article III Courts’ Constitutional function; they have been avoiding it for years under the Supreme’s judge-made facade of Chevron and Brand X.

(Yes, I know the 9th Circuit is only following Chevron, as they are bound to do. This is something the Supremes need to address, sooner rather than later. The result in this case is pure legal obfuscation.)

Oh yeah, while we’re at it, if there is an “open legal question” before another panel of the 9th Circuit, why remand the case to the BIA which can’t resolve that? Why not send this case to the “other panel” or ask your colleagues on the other panel if they could expedite their consideration of this issue?

PWS

08-08-17

 

3rd Cir. “Just Says No” To DOJ Request For Remand To Give BIA Chance To Misconstrue Statute — PA misdemeanor count of obstructing the administration of law or other governmental function is categorically NOT a CIMT — Ildefonso-Candelario v. Atty. Gen.

http://www2.ca3.uscourts.gov/opinarch/163625p.pdf

Key quote:

“Instead of defending the conclusion that section 5101 is categorically a crime involving moral turpitude, the government requests a remand without decision to permit the BIA to reconsider its position in the matter. See Ren v. Gonzales, 440 F.3d 446, 448 (7th Cir. 2006); see generally SKF USA Inc. v. United States, 254 F.3d 1022, 1027-30 (Fed. Cir. 2001) (outlining approaches to agency remand requests). The government points out that the BIA is generally entitled to Chevron deference for reasonable interpretations of ambiguous terms, Mehboob, 549 F.3d at 275, and theorizes that the BIA might conjure up an interpretation of the term “moral turpitude” enabling a conclusion that section 5101 categorically involves “conduct that is inherently base, vile, or depraved,” Knapik, 384 F.3d at 89.

Yet the government has been unable, either in its brief or at oral argument, to articulate any understanding of the phrase “crime involving moral turpitude” that could plausibly encompass section 5101. This is not because of a failure of imagination. It instead reflects the simple fact that there is no conceivable way to describe the least culpable conduct covered by section 5101 — such as the illegal but nonviolent political protest described in Ripley — as inherently vile, or as “a reprehensible act committed with an appreciable level of consciousness or deliberation.” Partyka, 417 F.3d at 414. Moreover, no “emerging case law,” Ren, 440 F.3d at 448, involving either section 5101 or the definition of moral turpitude in other contexts calls for giving the BIA a second bite at the apple. See Jean-Louis, 582 F.3d at 469 (declining to remand where the relevant legal materials, including BIA decisions, “lead[] inexorably to the conclusion” that an offense is not morally turpitudinous).

10

Under the circumstances, we see no reason for remanding without correcting the legal error apparent on the face of the petition. See Mayorga v. Att’y Gen., 757 F.3d 126, 134 (3d Cir. 2014); cf. City of Arlington v. FCC, 133 S. Ct. 1863, 1874 (2013) (“[W]here Congress has established an ambiguous line, the agency can go no further than the ambiguity will fairly allow.”). We thus deny the government’s request for a voluntary remand and hold that 18 Pa. Cons. Stat. § 5101 is not categorically a crime involving moral turpitude.”

PANEL: JORDAN, KRAUSE, Circuit Judges and STEARNS, District Judge.

OPINION BY: JUDGE STEARNS

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

Looks like the 3rd Circuit is starting to get the picture on how the BIA, under pressure from the politicos in the DOJ to produce more removals, has a strong tendency to construe the law against respondents and in favor of just about any DHS position that will facilitate removals.

That’s why it’s time for the Article III Courts to put an end to Chevron and the pro-Government, anti-individual results that it favors. “Captive” administrative tribunals responsible to Executive Branch politicos can’t be trusted to fairly and independently construe ambiguous statutory language. That’s properly the job of the Article III Courts; they have been shirking it for far too long! The Supremes have essentially reversed the results of Chief Justice John Marshall’s “victory” over President Thomas Jefferson in Marbury v. Madison!

PWS

08-04-17

 

 

BIA/DURESS DEFENSE — NEW COMMENTARY FROM JUDGE JEFFREY S. CHASE: “Former IJs and Board Members File Amicus Brief in Negusie Remand”

https://www.jeffreyschase.com/blog/2017/7/17/former-ijs-and-board-members-file-amicus-brief-in-negusie-remand

Jeffrey writes:

“An Amicus brief was recently filed with the BIA on behalf of seven former immigration judges (including myself) and a former BIA board member in the case of Negusie v. Holder.  (In addition to the former Board member, one of the included IJs also served as a temporary Board member).   The case was remanded by the U.S. Supreme Court in order for the Board to determine whether there is a duress exception to the bar to asylum which applies to those who have persecuted others on account of a protected ground.

The context for the brief is as follows.  After initially ceding a limited duress exception to the Board, DHS recently changed its position.  In now opposing such exception, DHS relies in part on its contention that the complex analysis such determinations require would overburden the currently backloggedimmigration courts.

The amicus brief on behalf of the former IJs and Board member offers three primary points in rebuttal to this portion of DHS’s claim.  First, the brief points out that the immigration courts’ present backlog is largely the result of policy decisions made by both EOIR and DHS itself.  As the brief argues, it is disingenuous for DHS to create policies that contribute to the immigration courts’ backlog, and then argue to limit immigration judge’s decision-making authority as a means of alleviating its self-created burden.  The brief adds that such “bureaucratic failures resulting in the immigration court backlog cannot be a reason to deny people their right to a fair and just outcome.”

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

Read Jeffrey’s complete analysis over on his own website at the above link.

Why the “Chevron Doctrine” has gotta go:

Folks, the Supremes remanded the Negusie case in 2009 — that’s right, approximately eight years ago! Since that time, the supposedly “expert” BIA has been screwing around trying to came up with guidance.

It was obvious from the Supreme’s decision that they all had firm opinions on the correct answer (notwithstanding some very disingenuous protests to the contrary). So, why send the case back several levels in the system, all the way to a non-Article III administrative tribunal to make a decision that the BIA is either unwilling or incapable of making in a timely manner?

It’s time for the Supremes to step up to the plate and decide difficult and controversial issues when they are presented to them, not “punt” back to lesser qualified Executive agencies that lack the necessary judicial independence to make the best and fairest decisions. Why have a Supreme Court that is afraid to decide important legal issues?

In the meantime, lives are in the balance as the BIA flounders about trying to reach a decision. U.S. Immigration Judges and lower Federal Courts have had to “go it alone” on real-life cases while the BIA ruminates. Indeed, I had to decide such cases at the trial level on several occasions without any meaningful guidance from the BIA.

Moreover, the obvious unfairness of these delays is well illustrated here. During the eight years at the BIA, the Administration has changed and is now taking a much more restrictive position. But, if the BIA had done its job, the precedent, presumably more generous, would have been established years ago, and many cases would already have been finally determined thereunder.

It’s time to put an end to the absurdly “undue deference” that the Supremes give to non-Article III decision makers on questions of law under Chevron.

PWS

07-17-17

THE ASYLUMIST: Jason Dzubow Wins Key “Firm Resettlement” Case — Wonders Why BIA Won’t Publish When Failing System Cries Out For More Consistency!

http://www.asylumist.com/2017/06/22/the-bia-on-firm-resettlement-2/

“Ultimately, the BIA accepted one of several arguments we presented. The Board held:

The intent of the firm resettlement bar is to disqualify asylum applicants who have previously found another country of refuge, not another country in which he or she faces a danger of persecution…. Given respondent’s situation with regard to [the third country], we conclude that, even assuming she otherwise would be viewed as having firmly resettled in that country, she is not barred from asylum.

Id. (emphasis in original). Thus, the Board went beyond the analysis of Matter of A-G-G- and looked to the intent of the firm resettlement bar. The intent, the BIA says, was only to bar “aliens who had already found shelter and begun new lives in other countries.” Id. (emphasis in original) (citing Rosenberg v. Yee Chien Woo, 402 U.S. 49, 56 (1971)).

It seems to me that the Board’s emphasis on the intent of the bar is significant. If you only read the firm resettlement bar (INA § 208(b)(1)(B)(2)(vi)) and Matter of A-G-G-, you could reasonably conclude–like the DHS attorney and the IJ in my case–that once a person is firmly resettled, she is forever barred from asylum. But that is not the conclusion the Board has now reached.

I am glad for the result and for my clients, but I am disappointed that the BIA chose not to publish this decision. The issue that my clients faced–where the country of resettlement is unsafe–is not uncommon. A number of my clients have faced similar situations, and I suspect that they are not unique. A published decision would have helped clarify matters and provided better guidance to our country’s Immigration Judges.

Maybe I am asking for too much. Maybe I should just be happy with what we got. Maybe I am being a big jerk for looking this gift horse in the mouth. But I can’t help but think that if the BIA would publish more decisions–especially in cases where there is no existing precedent–our Immigration Court system would be more consistent and more efficient. And so while I am thankful that we received a good decision from the Board in this particular case, I am also thinking about how much more good the Board could do if it made a concerted effort to fulfill its role as “the highest administrative body for interpreting and applying immigration laws,” and if it would publish more cases.”

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

I agree, Jason. As you know from our Asylumist interviews last summer, there was a time when the BIA published more cases. It was during the era of the “Schmidt Board.”

Many of the precedents involved controversial issues of first impression under IIRIRA. There was open dialogue with some separate opinions. Sometimes, the dissent better predicted the future development of the law than the majority opinion. Most were en banc, so every Board Appellate Judge had to take a public vote. And, some of them actually granted relief to the respondent.

But those days are long gone. Today’s Board exists 1) to push cases through the system to final orders of removal on more or less of an assembly line, 2) not to rock the boat, 3) to provide OIL with ways to defend the Government’s “party line” under Chevron, and 4) to preserve the institution and the jobs of the Appellate Judges.

You’ll notice that I didn’t mention anything about due process, fairness, best practices, consistency, law development, informative dialogue, justice, or even practicality.  And, Jason, let’s face it. Who would want to publish a decision favorable to a respondent with Jeff “Gonzo Apocalypto” Sessions — a guy who basically never has a kind, humane, or generous word to say about any migrant, legal or not — as your boss?

In a functioning system, an appellate court that stood for fairness, due process, and best practices could be part of the solution. But, our current U.S. Immigration Court system is dysfunctional. And, mostly, the Board is just another part of the problem. Basically, if you don’t stand up for anything or anybody, you stand for nothing.

PWS

06-28-17

9th Circuit Reverses BIA, Says CAL Fleeing From A Police Officer Not A Categorical CIMT! — Ramirez-Contreras v. Sessions — Read My Mini-Essay “Hard Times In The Ivory Tower”

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/06/08/14-70452.pdf

Here is the summary prepared by the court staff:

“Immigration

The panel granted Ramirez-Contreras’s petition for review of the Board of Immigration Appeals’ decision concluding that his conviction for fleeing from a police officer under California Vehicle Code § 2800.2 is categorically a crime involving moral turpitude that rendered him statutorily ineligible for cancellation of removal.

In holding that Ramirez-Contreras’s conviction is not a crime of moral turpitude, the panel accorded minimal deference to the BIA’s decision due to flaws in its reasoning.

Applying the categorical approach, the panel viewed the least of the acts criminalized under California Vehicle Code § 2800.2, and concluded that an individual can be convicted under subsection (b) for eluding police while committing three traffic violations that cannot be characterized as “vile or depraved.” Therefore, the panel held that California Vehicle Code § 2800.2 is not a crime of moral turpitude because the conduct criminalized does not necessarily create the risk of harm that characterizes a crime of moral turpitude.

The panel also held that the modified categorical approach does not apply because the elements of California Vehicle Code § 2800.2 are clearly indivisible.”

Before: Mary M. Schroeder, Andre M. Davis,** and Mary H. Murguia, Circuit Judges.

Opinion by Judge Schroeder

** The Honorable Andre M. Davis, United States Circuit Judge for the U.S. Court of Appeals for the Fourth Circuit, sitting by designation.

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HARD TIMES IN THE IVORY TOWER

by Paul Wickham Schmidt

The BIA has been having a rough time lately on its rulings concerning both “aggravated felonies” and “crimes involving moral turpitude.” The BIA appears to take an “expansive” or “inclusive” approach to criminal removal statutes, while most courts, including the Supremes, seem to prefer a narrower approach that assumes the “least possible crime” and ameliorates some of the harshness of the INA’s removal provisions.

In my view, the BIA’s jurisprudence on criminal removal took a “downward turn” after Judge Lory D. Rosenberg was forced off the BIA by then Attorney General John Ashcroft around 2002. Judge Rosenberg’s dissents often set forth a “categorical” and “modified categorical” analysis that eventually proved to be more in line with that used by higher Federal Courts all the way up to the U.S. Supreme Court.

Since the “Ashcroft purge,” the BIA has visibly struggled to get on the same wavelength with the reviewing courts on analyzing criminal removal provisions. At the same time, the BIA’s own precedents have been remarkable for their lack of meaningful dissent and absence of any type of visible judicial dialogue and deliberation. Maybe that’s what happens when you try to build a “captive court” from the “inside out” rather than competitively selecting the very best Appellate Immigration Judges from different backgrounds whose  views span the entire “real world” of immigration jurisprudence.

Just another reason why it’s time to get the United States Immigration Courts (including the “Appellate Division” a/k/a/ the BIA) out of the Executive Branch and into an independent judicial structure. No other major court system in America is run the way DOJ/EOIR runs the Immigration Courts. And, that’s not good news for those seeking genuine due process within the immigration system.

PWS

06-09-17

Dean Kevin Johnson Summarizes Today’s SCt Argument In Esquivel-Quintana v. Sessions For SCOTUS Blog — Issue: Sexual Abuse Of A Minor!

http://www.scotusblog.com/2017/02/argument-analysis-justices-divided-meaning-sexual-abuse-minor-removal-purposes/#more-252948/

“The question before the Supreme Court is whether Esquivel-Quintana’s conviction constitutes an “aggravated felony” as “sexual abuse of a minor” under U.S. immigration law. The case raises fascinating, and complex, questions about Chevron deference to an agency’s reasonable interpretation of an ambiguous statute and about the rule of lenity that is generally applied to the interpretation of removal and criminal laws.

. . . . .

In sum, the justices did not seem to have reached a consensus as to whether Esquivel-Quintana’s crime constituted “sexual abuse of a minor” under the immigration laws. The justices’ questions revealed the complicated interaction among the relevant statutory provisions; the high stakes of removal for lawful permanent residents, the complex state/federal issues involved, and the intersection of criminal and immigration law add to the difficulty and significance of this case. A decision is expected by the end of June.”

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PWS

02/27/17