Tag: 1st Cir.

🆘‼️ WANTED: BIA JUDGES WHO UNDERSTAND MIXED MOTIVE! 🤯 — 1st Cir. Outs Garland BIA’s Latest “Whack Job” On Asylum Seeker! — Khalil v. Garland — Forget The Nativist “Border BS,” THIS Is America’s REAL “Immigration Crisis!” ☠️

 

I want you
Pass Immigration 101? Understand “mixed motive” and how it should be used to protect, not reject? Willing to stand up for due process and the legal and human rights of migrants? Prepared to promote justice and resist the evil culture of “any reason to deny?” We need YOU on the BIA today! “Revolution by evolution” is a crock. We need an aggressive “Due Process Revolution” from within EOIR NOW!
Public Domain

youBhttps://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/23-1443P-01A.pdf

United States Court of Appeals For the First Circuit

No. 23-1443

AMGAD SAMIR HALIM KHALIL,

Petitioner,

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF

THE BOARD OF IMMIGRATION APPEALS

Before

Gelpí, Howard, and Rikelman,

Circuit Judges.

Saher J. Macarius, with whom Audrey Botros and Law Offices of Saher J. Macarius LLC were on brief, for petitioner.

Yanal H. Yousef, Trial Attorney, Office of Immigration Litigation, with whom Brian Boynton, Principal Deputy Assistant Attorney General, Civil Division, and Anthony P. Nicastro, Assistant Director, Office of Immigration Litigation, were on brief, for respondent.

Julian Bava, with whom Adriana Lafaille, Sabrineh Ardalan, Tiffany Lieu, American Civil Liberties Union Foundation of Massachusetts, Inc., and Harvard Immigration & Refugee Clinical Program, were on brief, for amici curiae.

March 29, 2024

RIKELMAN, Circuit Judge.

. . . .

We turn, then, to Khalil’s argument that the factual record compels the conclusion that religion was at least one central reason for his beating. We review the factual finding

– 15 –

against Khalil on this issue under the substantial evidence standard. Pineda-Maldonado, 91 F.4th at 87.

Here, a reasonable adjudicator would be compelled to conclude that Khalil’s religion qualifies as a central reason for the beating. Khalil’s attackers demanded he convert, beat him when he refused to do so, demanded again that he convert, and beat him more intensely when he again refused. The attackers’ own statements show that, regardless of whatever else prompted the beating, Khalil would not have been harmed had he agreed to convert. See Sanchez-Vasquez v. Garland, 994 F.3d 40, 47 (1st Cir. 2021) (deeming perpetrators’ statements essential to the nexus determination); Ivanov v. Holder, 736 F.3d 5, 14-15 (1st Cir. 2013) (determining persecutors were driven by a religious motive that they “recognized and gave voice to” during their attack of the applicant); Singh v. Mukasey, 543 F.3d 1, 7 (1st Cir. 2008) (explaining that perpetrators’ statements “are a crucial factor” for determining the central reason for harm); cf. Esteban-Garcia v. Garland, 94 F.4th 186, 194 (1st Cir. 2024) (finding no nexus because persecutors “didn’t say anything” about the applicant’s protected ground).

The attackers’ demands that Khalil convert to another faith and their increased violence in response to his refusal to do so make this case unlike Sompotan v. Mukasey, 533 F.3d 63 (1st Cir. 2008), which the IJ relied on in finding that the beating was

– 16 –

the result of a personal dispute only. In Sompotan, we held that the record did not compel the conclusion that those who robbed the petitioners and their restaurant while yelling “Chinese bastard, crazy Christian, crazy Chinese” were motivated by religious and racial animus rather than by a desire to rob because “[t]he fact that [robbers] would stoop to the level of using racial slurs is, unfortunately, not surprising.” 533 F.3d at 70. By contrast, the attackers here did not make just a passing reference to Khalil’s religion. Rather, they made religious demands on him during the attack and beat him more vigorously when he refused to cede to those demands.

The arguments the government offers as to why substantial evidence supports the agency’s no-nexus determination do not alter our conclusion. The government emphasizes that Khalil recounted his attackers’ demands that he convert only in his asylum interview and written declaration attached to his asylum application, but not in his testimony before the IJ. But in evaluating whether substantial evidence supports the agency’s conclusion, we are tasked with reviewing “the record as a whole.” Barnica-Lopez, 59 F.4th at 527. Further, at his hearing, Khalil described the beating exclusively during the government’s cross-examination, and the government strategically asked him only one question about what his attackers said during the beating: Did they reference the blood test results? The framing of the

– 17 –

government’s questions on cross-examination does not change our assessment of the record as a whole. The government also contends that, because Khalil testified that the imam had no issue with him until the imam found out about the blood test results, religion did not motivate the attack. But that argument ignores the attackers’ own words and actions.

For all these reasons, we find that the record compels the conclusion that Khalil’s religion played more than an incidental role in his beating. We therefore grant the petition for review as to Khalil’s asylum claim premised on mixed-motive persecution.5

. . . .

********************
Many congrats and much appreciation to the NDPA team involved in this litigation!👏🙏

Oh yeah, the BIA also screwed up the CAT analysis! 🤯

This is another classic example of deficient scholarship and an “any reason to deny culture” that Garland, inexplicably, has allowed to flourish in some parts of EOIR on his watch!

This is the REAL “immigration crisis” gripping America, and one that obviously could be solved with better-qualified judges and dynamic due-processed-focused leadership at EOIR!

“Revolution by evolution” is a meaningless piece of bureaucratic gobbledegook I sometimes heard during Dem Administrations to justify their often gutless, inept, and dilatory approach to due process at EOIR! What total poppycock! EOIR needs a dramatic “Due Process Revolution” from within! And, it needs it yesterday, with lives and the future of American justice on the line!

There’s an opportunity, open until April 12, 2024, to become a BIA Appellate Judge and start improving the trajectory of American justice at the “retail level!” 

⚖️🗽👩🏾‍⚖️ CALLING NDPA ALL-STARS!🌟 — WANTED: BIA APPELLATE JUDGE DEDICATED TO DUE PROCESS, ASYLUM EXPERTISE, & PROMOTING BEST PRACTICES!  — Apply By April 12, 2024! — Better Judges For A Better America!

Better judges for a better America! 👩🏾‍⚖️⚖️😎🗽🇺🇸

🇺🇸 Due Process Forever!

PWS

03-30-24

Hour

Related posts:

  1. 🇺🇸🗽⚖️😎 THERE’S STILL SOME INSPIRING NEWS TO REPORT: 1) CHICAGO PASTORS WELCOME BUSSES; 2) GW LAW CLINIC STUDENTS HELP NEW ARRIVALS; 3) W&M LAW CLINIC WINS 27 CASES; 4) NDPA STAR KIM WILLIAMS, ESQ, TRIUMPHS OVER GARLAND DOJ’S “NEXUS NONSENSE” IN 1ST CIR; 5) HRF’S ROBYN BARNARD CALLS OUT BIDEN’S THREAT TO TRASH ASYLUM; 6) CEO BILL PENZY LIKES & APPRECIATES IMMIGRANTS!
  2. 🆘🤮IS 11TH CIR. GROWING WEARY OF GARLAND’S SCOFFLAW BIA? —Two Trips To The Circuit, & The BIA Still Violates Own Regulations, Ignores Precedent, Spouts Gibberish While OIL’s Defense Of This Nonsense & Malfeasance By EOIR Raises Serious Ethical Questions! — THAMOTAR v. U.S. ATT’Y GEN. — Garland’s Dysfunctional & Systematically Unjust Courts Undermine OUR Democracy☠️ — Demand An IMMEDIATE End To The Scofflaw Nonsense🤡 🧹 At OUR Justice Department! 🏴‍☠️
  3. ⚖️🗽🧑🏽‍⚖️”MEDLEY OF INJUSTICE” — CIRCUITS CONTINUE TO LOWER HAMMER 🔨 ON BIA: Anti-Asylum Misogyny; Illegal & Incredibly Stupid “Policies;” “Perplexing” Lack Of Legal Knowledge Highlighted In Latest Batch Of Reversals! — “Attempted rape by a gang of men, in broad daylight on a public street, is especially terrorizing because it powerfully demonstrates the perpetrator’s domination, control over the victim and imperviousness to the law. Requiring evidence of additional harms both minimizes the gravity of the sexual assault and demeans the victim.”
  4. 😩TIRED OF PANDERING POLITICOS BASHING HUMAN RIGHTS & DEHUMANIZING BORDER COVERAGE BY THE MEDIA? — Here’s Some Straight Talk On The Border From Migration Expert Harvard Law Professor Gerald L. Neuman! ⚖️🗽 — “There is danger that any new legislation would decrease protection, which would mean that we would be taking no steps forward, and several steps backward, and that nonetheless, issues about migration would remain just as divisive as they are now.”🤯

⚖️🗽 PROUDLY JOINING NGOs & LAW PROFESSORS IN 1ST CIR. AMICUS BRIEF CHALLENGING BIA’S MISAPPLICATION OF “EQUITABLE TOLLING” WHERE FEDEX DELIVERED NOA 1-DAY LATE! — Diaz-Valdez v. Garland 

Professor Mary Holper
Professor Mary Holper
Associate Clinical Professor
Director of the Immigration Clinic
Associate Dean for Experiential Learning
Boston College Law
PHOTO: BC Law

Here’s the brief expertly prepared for us by NDPA All-Star Mary Holper and her team of student attorneys at Boston College Legal Services LAB Immigration Clinic:

23-1576 Amicus Brief Diaz Valdez

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

As we argue, the BIA’s action here violated their own precedent in Matter of Morales-Morales, 28 I. & N. Dec. 714 (BIA 2023). As stated in our brief:

In Morales-Morales, the case in which the BIA first held that it could equitably toll a notice of appeal deadline, the BIA stated that the quintessential example of an extraordinary circumstance warranting equitable tolling is when “a party uses a guaranteed delivery service, and the service fails to fulfill its guarantee.” See Morales-Morales, 28 I. & N. Dec. at 717. When presented with exactly those facts, however—FedEx’s Priority Overnight service failed to deliver Ms. Diaz-Valdez’s notice of appeal on time, violating its guarantee—the BIA arbitrarily and capriciously refused to equitably toll the deadline. 

One could well ask why Garland is spending Government time and resources defending the BIA’s erroneous and unjust actions. No wonder EOIR can’t help building more and more backlog — much of it through poor quality, anti-immigrant decision-making that causes unnecessary delays, confusion, gross inconsistencies, and contributes to the dreaded “Aimless Docket Reshuffling” — an endemic problem at EOIR!

Thanks again to Mary and her team for their outstanding help. Also, as pointed out in the intro to the brief, I joined in my individual capacity, NOT as a representative of the Round Table, Georgetown Law, or any other group or entity with which I am associated. 

🇺🇸 Due Process Forever!

PWS

12-01-23

Related posts:

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  2. 🆘🤮IS 11TH CIR. GROWING WEARY OF GARLAND’S SCOFFLAW BIA? —Two Trips To The Circuit, & The BIA Still Violates Own Regulations, Ignores Precedent, Spouts Gibberish While OIL’s Defense Of This Nonsense & Malfeasance By EOIR Raises Serious Ethical Questions! — THAMOTAR v. U.S. ATT’Y GEN. — Garland’s Dysfunctional & Systematically Unjust Courts Undermine OUR Democracy☠️ — Demand An IMMEDIATE End To The Scofflaw Nonsense🤡 🧹 At OUR Justice Department! 🏴‍☠️
  3. 🗽 BORDER: WashPost’s Maria Sacchetti’s Nuanced Report Is Well Worth A Read: “The perceived success of Biden’s approach depends on which side of the border the migrants are on.” — Right to apply for asylum is a “simple rule” that politicos of both parties lack the will & skill to follow!🤮
  4. ☠️👎🏼 ANOTHER SUPER-SHODDY PERFORMANCE BY BIA ON CENTRAL AMERICAN ASYLUM OUTED BY 9TH CIR. — Reyes-Corado v. Garland

🤯 BIA’S ANTI-ASYLUM JURISPRUDENCE CONTINUES TO TAKE A BEATING IN CIRCUITS — 1st Cir. Rejects Bogus “Changed Conditions” In Guatemala — 3rd Cir. Says No To BIA’s Bogus Jurisdictional Ruling For Asylee!

Kangaroos
Dems control the composition of one of the most consequential Federal Appellate Tribunals, the BIA. Is THIS really the look that they want to project? 
https://www.flickr.com/photos/rasputin243/
Creative Commons License

Dan Kowalski reports for Lexis Nexis Immigration Community:

CA1 on Changed Country Conditions (Guatemala) – Mendez Esteban v. Garland

http://media.ca1.uscourts.gov/pdf.opinions/22-1215P-01A.pdf

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca1-on-changed-country-conditions-guatemala—mendez-esteban-v-garland#

“[T]he 2017 report and the testimony from Mendez do not — together or independently — establish that changes in Guatemala have fundamentally altered the specific conditions that gave rise to Mendez’s substantiated claim of political persecution. Accordingly, the BIA’s conclusion that DHS rebutted Mendez’s presumption of well-founded fear is not supported by substantial evidence. We therefore find Mendez statutorily eligible for asylum. … [W]e grant the petition for review as to Mendez’s claims for asylum and withholding of removal. We deny the petition as to Mendez’s claim for CAT protection. We accordingly affirm the denial of Mendez’s CAT claim, vacate the denials of Mendez’s political opinion-based asylum and withholding of removal claims, and remand to the IJ for further proceedings consistent with this opinion.”

[Hats off to Samuel Brenner, Emma Coreno, Patrick Roath and Rachel Scholz-Bright!]

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

CA3 on Jurisdiction: Kosh v. Atty. Gen.

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca3-on-jurisdiction-kosh-v-atty-gen#

“Appellant Ishmael Kosh petitions us to review the order from the Board of Immigration Appeals (“BIA”) that terminated his asylum status and denied his applications for withholding of removal and protection under the Convention Against Torture. He maintains that the Department of Homeland Security (“DHS”) improperly sought to terminate his asylum status in asylum-only proceedings because he first entered the United States under the Visa Waiver Program. Per Kosh, that limiting program no longer applies to him, so he is entitled to complete-jurisdiction removal proceedings instead. In such unlimited proceedings, asylees can raise an adjustment-of-status claim as a defense to removal. We conclude that, if Kosh re-entered the country as an asylee without signing a new Visa Waiver Program form limiting his defenses, he is entitled to complete-jurisdiction proceedings. We thus grant his petition for review, vacate the BIA’s decision, and remand for further proceedings consistent with this opinion.”

[Hats off to Ben Hooper and Jonah Eaton!]

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

As many practitioners know, the BIA’s continual bogus “fundamentally changed circumstances” findings for countries where the human rights conditions have remained abysmal for decades, certainly NOT materially improving, and in most cases in the Northern Triangle getting worse, are an endemic problem. Following a finding of past persecution, ICE, not the respondent, bears the burden of proof!

If that burden were honestly and expertly applied, considering individualized fear of harm, ICE would rebut the presumption by a preponderance of the evidence in only a minuscule percentage of cases. Certainly, that was my experience over 21 years on both the trial and appellate benches at EOIR.

Moreover, in this and most other cases of past persecution, even if ICE were able to satisfy its burden of rebutting the presumption of future persecution by a preponderance of the credible evidence, the respondent would be a “slam dunk” for a grant of discretionary asylum on the basis of “other serious harm.” It’s not clear that any of the three judicial entities that considered this case understood and properly applied the “other serious harm” concept.

The BIA’s chronic failure to fulfill its proper role of insuring a fair application of asylum and other protection laws and to provide guidance “shutting down” IJs who routinely manufacture bogus reasons to deny is a systemic denial of due process and failure of judicial professionalism. That it continues to happen under a Dem Administration pledged to restore the rule of law and due process for asylum seekers is astounding, deplorable, and a cause for concern about what today’s Dems really stand for!

This case should have been granted by the IJ years ago. An appeal by ICE on this feeble showing should have been subject to summary dismissal. 

That cases like Mendez Esteban are still aimlessly kicking around Garland’s dysfunctional system in an elusive search for justice is a serious indictment of the Biden Administration’s approach to asylum and to achieving long overdue, life-changing, and readily achievable reforms that are within their power without legislative action. It also helps explain why Garland has neither reduced backlogs nor sufficiently improved professionalism, even with many more IJs on the bench.

Practical tips for fighting against bogus “presumption rebuttals” by IJs under 8 CFR 208.13:

  • Insist that the IJ actually shift the burden to ICE to rebut the presumption of future persecution based on past persecution.
  • Use the regulatory definition of “reasonably available” internal relocation to fight  bogus IJ findings. For example, countries in the Northern Triangle are “postage stamp sized” and plagued by nationwide violence and corruption. The idea of “reasonably available internal location” under all the factors is prima facie absurd! (A “better BIA” would have already pointed this out in a precedent.)
  • Argue for a discretionary grant of asylum even in the absence of a current well founded fear based on 1) “compelling circumstances” arising out of the past persecution (“Chen grant”), and/or “other serious harm” under the regulations — a much broader concept than persecution that does NOT require nexus to a protected ground.

Knowing and using the law aggressively to assert your client’s rights, making the record, and exhausting all appellate options are the best defenses to biased, anti-asylum, often disconnected from reality denials of life-saving relief to your clients!

🇺🇸 Due Process Forever!

PWS

05-13-23

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  2. ☠️🤮🤯 HOW CAN JUDGES WHO DON’T KNOW WHAT TORTURE IS FAIRLY PREDICT ITS FUTURE PROBABILITY? — THEY CAN’T! — 1st Cir. “Outs” EOIR’s CAT Denial Conveyor Belt!
  3. ☹️👎🏽BUMBLING BIA BADLY BUNGLES BASICS, AGAIN! — Applies Wrong Standard In Seeking To Reverse Valid CAT Grant — Obviously Frustrated 3rd Cir. Reinstates IJ Decision Following BIA’s Inept Attempt @ Appellate  Review! — Arreaga Bravo v. A.G.
  4. 🧑🏽‍⚖️⚖️🗽🇺🇸WHO’S JUDGE IS IT ANYWAY? — The Crisis Of Independence In Our Immigration Courts! — Coming April 7, 2021! — Sponsored By The HNBA! — Don’t Miss It!

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

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

Dan Kowalski reports from LexisNexis Immigration Community:

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

Aguilar-Escoto II

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

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

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

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

THE REST OF THE STORY:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

🇺🇸 Due Process Forever!

PWS

02-10-23

Related posts:

  1. ⚖️🗽🧑🏽‍⚖️”MEDLEY OF INJUSTICE” — CIRCUITS CONTINUE TO LOWER HAMMER 🔨 ON BIA: Anti-Asylum Misogyny; Illegal & Incredibly Stupid “Policies;” “Perplexing” Lack Of Legal Knowledge Highlighted In Latest Batch Of Reversals! — “Attempted rape by a gang of men, in broad daylight on a public street, is especially terrorizing because it powerfully demonstrates the perpetrator’s domination, control over the victim and imperviousness to the law. Requiring evidence of additional harms both minimizes the gravity of the sexual assault and demeans the victim.”
  2. ⚖️🧑🏽‍⚖️JUDICIAL REVIEW — C.A. 2 — Brace Of Bad BIA Bobbles On Basics Brings “Culture Of Denial” Into Focus — Justice Will Continue To Be Illusive @ EOIR 👎🏽 Until Garland Steps Up & Replaces His Fatally Flawed BIA With Real Judges Who Are Progressive Practical Scholars In Immigration, Due Process, Human Rights, With A Firm Commitment To Bringing Racial & Gender Equity To Now-Disgraced Immigration Courts!🤮
  3. ⚖️🗽🧑🏽‍⚖️COURTS OF APPEALS CONTINUE TO THROW ROTTEN TOMATOES 🍅 @ BIA’S ANTI-ASYLUM BIAS — Basic Analytical, Legal Errors Continue From Weaponized, Non-Expert “Star Chamber” ☠️ Posing As ”Tribunal!” — Judge Garland Must Fix This Inexcusable, Unnecessary, Systemic Failure Now! — Justice For Persons Of Color & Migrants Can’t “Wait For Godot!”
  4. 😎WIN ONE, LOSE ONE☹️:  9TH CIR. ANNIHILATES MATTER OF ARMENDAREZ-MENDEZ (SUA SPONTE REOPENING), WHILE 11TH  CIR. WOODENLY ENDORSES 👎🏻 MATTER OF L-E-A- (NEXUS)!☠️⚰️

⚖️👨‍⚖️🤮 JUDICIAL SOPHISTRY AT ITS BEST! — 1ST CIRCUIT REAFFIRMS THAT GARLAND IS RUNNING AN UNCONSTITUTIONAL BOND SYSTEM @ EOIR THAT INFRINGES ON INDIVIDUAL FREEDOMS, BUT MANAGES TO “TALK ITSELF OUT OF” GRANTING EFFECTIVE INJUNCTIVE RELIEF!  — Garland’s “Anti-Due Process” Stance “Makes My Point” Once Again!

http://media.ca1.uscourts.gov/pdf.opinions/20-1037P-01A.pdf

Brito v. Garland, 1st Cir., 12-29-21, published

KAYATTA, Circuit Judge. This class action presents a due process challenge to the bond procedures used to detain noncitizens during the pendency of removal proceedings under 8 U.S.C. § 1226(a), the discretionary immigration detention provision. In light of our recent decision in Hernandez-Lara v. Lyons, 10 F.4th 19 (1st Cir. 2021), we affirm the district court’s declaration that noncitizens “detained pursuant to 8 U.S.C. § 1226(a) are entitled to receive a bond hearing at which the Government must prove the alien is either dangerous by clear and convincing evidence or a risk of flight by a preponderance of the evidence.” Brito v. Barr, 415 F. Supp. 3d 258, 271 (D. Mass. 2019). We conclude, however, that the district court lacked jurisdiction to issue injunctive relief in favor of the class, and we otherwise vacate the district court’s declaration as advisory. Our reasoning follows.

. . . .

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

I can usually count on Garland to “punctuate” my points! See, e.g., https://immigrationcourtside.com/2021/12/29/%f0%9f%97%bd%e2%9a%96%ef%b8%8f-courtside-in-the-news-both-nolan-the-hill-kevin-immigrationprof-blog-highlight-my-blistering-analysis-of-bidens-first-year-immigration/

And, he didn’t disappoint, at least on that score!

No sooner was the ink dry on my last post, than Ol’ Merrick gave me a classic example of why come “panic time” next Fall, when the Dem bigwigs come knocking on the door asking their “old reliable” progressive base to open their pocketbooks and get out the vote, they might find that the windows are dark and nobody’s home! If you don’t exist for the first 19 months of a Dem Administration, it’s hard to see why you wouldn’t be “on vacation” for the next three! 

If Dems want to continue as a viable force in American politics, at some point they will need leaders who recognize the difference between “political strategies” and “values.” Standing up for the human and due process rights immigrants and all other “persons” in the U.S. is the latter, not the former!

To reiterate Garland’s position in this and related cases: 

  • No due process for immigrants;
  • Keep the “New American Gulag” full of non-dangerous individuals;
  • Promote wasteful litigation, inconsistency, and chaos in my wholly-owed Immigration Courts that continue to operate as if “Gauleiter Stephen” were still calling the shots, and clutter the Article IIIs with my poor work product.

Nice touch! (Although, to be fair, it’s the same regressive, anti-due process, racially tinged position taken by both the Obama Administration and the Trump regime.)

Seems like an Administration that claims to be litigating, to date not very successfully (surprised?), to vindicate the voting rights and civil rights of African-Americans, Latinos, and other minorities might want to rethink arguing for the “Dred Scottification” of migrants, primarily persons of color. Maybe, some right-wing Federal Judge will start citing Garland back to Garland to say that “all persons aren’t really persons.” Sounds like something Rudy would say on a Sunday talk show (except that nobody invites him any more).

Alfred E. Neumann
“Let’s  see, if ‘humans’ are ‘persons,’ and ‘all persons’ have Constitutional rights to due process, then immigrants must not be ‘humans!’ Or, maybe we should argue that they are only 3/5 of a ‘person’ with half the rights! Chief Justice Taney would be. proud of me!”
PHOTO: Wikipedia Commons

And, if you are wondering what the 34 pages of opaque legal gobbledygook and all out assault on logic and the English language in the majority opinion means, I’ll simplify it. 

“We think it’s reasonable and appropriate that you plaintiffs who admittedly have had your Constitutional rights systematically violated by your litigation opponent should be required to seek redress on a case-by-case basis before a dysfunctional ‘court’ wholly-owned, staffed, and operated by your opponent located within a Government bureaucracy that has been litigating against your Constitutional rights over three Administrations!”

There, you have it! 34 pages of intentionally impenetrable “judgespeak,” legalese, and doublespeak condensed to one sentence of fewer than 65 words! 

Anybody (besides me) think that maybe, just maybe, there could be a Constitutional problem with “courts” owned and operated by a litigating party? Certainly seems above Garland’s pay grade to trifle with such trivialities, even when human lives and freedom are on the line.

Nope, better to just regurgitate the “Miller Lite” positions from the “restrictionists’ playbook” left behind by your Trumpy predecessors. And, for a good measure, why not even use some of their lawyers to argue them? But, strangely, those folks don’t seem to be very convincing when, on rare occasions, they are sent out to argue for more humane and reasonable treatment of immigrants! Perhaps their hearts, and heads, just aren’t in it.

My congrats to Circuit Judge Lipez (concurring and dissenting), the only one to actually get this one right and be able to explain it in understandable terms. When you have the right answer, you don’t have to obfuscate as much to cover up your fuzzy thinking (or lack thereof).

Gotta love it! Garland runs an unconstitutional bond system that infringes on individuals’ right to freedom, while improperly shoving those not accused of crimes into his “New American Gulag.” Yet, the panel manages to talk itself out of granting effective relief! Truly remarkable!

If the judges in the majority had actually practiced before the Immigration Courts they might know:

1) Bond cases are hard to appeal because the IJ isn’t required to provide a final rationale for his or her decision until after an appeal has been taken;

2) By regulation, bond hearings aren’t even required to be “on the record” (although many of us chose to nevertheless put them on the record for the convenience and protection all concerned);

3) The BIA has a “general practice” of not adjudicating bond appeals by respondents until after the detained merits hearing has taken place, whereupon the BIA finds the bond appeal to be “moot;”

4) OIL often encourages DHS to release individuals who sue in District Court to moot the case.

I’m sure that Garland’s BIA which has, on occasion, blown off the Supremes and declined to follow Circuit Court orders on remand, will promptly fashion a very well-reasoned progressive precedent vindicating respondents’ rights.  

Then again, maybe they will just take whatever position that their “boss” Garland wants to litigate in behalf of his “partners” at DHS Enforcement.

What do you think Garland’s personally owned and operated courts will do?

Better Judges for a Better America —  starting with the BIA! And, while you’re at it, how about throwing in an Attorney General committed to vindicating the legal and human rights of all persons!

So, NDPA, take up, the cudgel of justice and flood Garland’s courts and the Article IIIs with as many individual “exhaustion of remedies” cases as it takes to obtain justice or grind Garland’s corrupt system to a halt! 

Garland would “rather fight than get it right.” So, take advantage of his limited litigation skills, tunnel vision, and the mediocre talent he employs to do his bidding. Take the fight to him, as he wishes! 

Continually pummeling him in court is apparently the only way to get Garland to pay attention to progressives!

Additionally, you should, of course, keep applying for Immigration Judgeships, BIA Judgeships, Asylum Officer positions, and other key jobs where you can make a difference and save some lives.

Garland’s tone-deaf system must be attacked from all angles until it collapses under its own weight. An Attorney General who obviously would like to put migrants, their humanity, their rights, and YOU, their advocates, “out of sight, out of mind” so he can think great thoughts about the “really important things in life,” is eventually going to find that those he ignores and condemns without fair trial will be the ONLY thing on his plate and occupying his time!

When leadership lacks the vision, courage, and skills necessary to promote change, it falls to those at all levels of society and our justice system to assert the pressure and impetus for that essential change to take place! Keep pushing and pressing until “the powers that be” can’t ignore and marginalize you any more!

Vanita Gupta, Lucas Guttentag, and Kristin Clarke, what on earth do you do with yourselves all day long, now that you have removed yourselves from the battle for civil rights, equal justice, and racial justice in America? I guess there are lots of papers to push and meaningless meetings to attend in Garland’s broken DOJ bureaucracy. 

I’d say things haven’t changed much. But, I actually think they have gotten measurably worse since “my days” at the DOJ. And, that’s saying a lot!

🇺🇸Due Process Forever, and Happy New Year!🥂

P 😎  

Related posts:

  1. PURE BS 💩 — TRUMP’S “BIG LIE” ABOUT MIGRANT APPEARANCES FOR HEARINGS BOGUS AS $3 BILL 🤮👎🏻— Replacing DHS/EOIR With Rational, Qualified, Fact-Based Governance & Real Judiciary Could Bring Appearance Rate Close To 100%!  — Two Items From ImmigrationProf Blog!
  2. ⚖️🗽🧑🏽‍⚖️COURTS OF APPEALS CONTINUE TO THROW ROTTEN TOMATOES 🍅 @ BIA’S ANTI-ASYLUM BIAS — Basic Analytical, Legal Errors Continue From Weaponized, Non-Expert “Star Chamber” ☠️ Posing As ”Tribunal!” — Judge Garland Must Fix This Inexcusable, Unnecessary, Systemic Failure Now! — Justice For Persons Of Color & Migrants Can’t “Wait For Godot!”
  3. 🏴‍☠️👎🏻🤮“HOUSTON, WE’VE STILL GOT A PROBLEM!” — A HUGE AND GROWING ONE — Garland’s Failure To Restore “Justice @ Justice” Reverberates Throughout Our Nation!🆘
  4. 🆘🤮IS 11TH CIR. GROWING WEARY OF GARLAND’S SCOFFLAW BIA? —Two Trips To The Circuit, & The BIA Still Violates Own Regulations, Ignores Precedent, Spouts Gibberish While OIL’s Defense Of This Nonsense & Malfeasance By EOIR Raises Serious Ethical Questions! — THAMOTAR v. U.S. ATT’Y GEN. — Garland’s Dysfunctional & Systematically Unjust Courts Undermine OUR Democracy☠️ — Demand An IMMEDIATE End To The Scofflaw Nonsense🤡 🧹 At OUR Justice Department! 🏴‍☠️

⚠️🚸🆘☠️☹️THE GIBSON REPORT —10-25-21 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group — Posts Show How USG’s Scofflaw Asylum Policies Generate Unnecessary Irregular Entries, Misleading Statistics, More Unnecessary CBP “Apprehensions,” More CBP Abuses, No Accountability For Abusers, & No Plans By Biden Administration To Rectify Situation — Lack Of Principled, Realistic, Legally Compliant Border Policy Undermines Democracy!

Elizabeth Gibson
Elizabeth Gibson
Attorney, NY Legal Assistance Group
Publisher of “The Gibson Report”

NEWS

 

9th Circ. nixes order mandating more COVID protections for ICE detainees

Reuters: The 9th U.S. Circuit Court of Appeals in a 2-1 ruling said the preliminary injunction issued last year improperly placed ICE’s entire network of detention facilities under the direction of a single federal judge, an error because the plaintiffs failed to show systemic nationwide shortfalls in detainee health protections.

 

DOJ lifts Trump-era case quotas for immigration judges

ABA: Immigration judges will no longer be required to close 700 cases per year to get a “satisfactory” rating.

 

Border Patrol apprehensions hit a record high. But that’s only part of the story

NPR: The Border Patrol recorded nearly 1.7 million migrant apprehensions at the Southern border over the past year — the highest number ever, eclipsing the record set more than two decades ago. But that doesn’t mean it’s the biggest number of individual migrants who’ve illegally crossed from Mexico into the U.S. in a single year. In fact, it’s probably not even close. See also Tired of waiting for asylum in southern Mexico, thousands of migrants march north.

 

New York Set Aside $2.1 Billion for Undocumented Workers. It Isn’t Enough.

NYT: A demand for aid has depleted the Excluded Workers Fund in New York, and thousands of those who qualify could miss out on payments. See also Immigrant families struggle to access child tax credit payments.

 

A Leaked US Government Report Documents How People With Medical Conditions And Disabilities Were Forced Into The “Remain In Mexico” Program

BuzzFeed: The report offers a rare window into the behind-the-scenes dysfunction and confusion surrounding the so-called Remain in Mexico program, which is set to come back.

 

‘It Should Not Have Happened’: Asylum Officers Detail Migrants’ Accounts of Abuse

NYT: More than 160 reports, obtained by Human Rights Watch, reveal details of mistreatment that asylum seekers described experiencing from border officials and while in U.S. custody.

 

Border agents who made violent, lewd Facebook posts faced flawed disciplinary process at CBP, House investigation finds

WaPo: A U.S. Customs and Border Protection discipline board found that 60 agents “committed misconduct” by sharing violent and obscene posts in secret Facebook groups but fired only two — far fewer than an internal discipline board had recommended, according to a House Oversight and Reform Committee report released Monday.

 

ICE Review Of Immigrant’s Suicide Finds Falsified Documents, Neglect, And Improper Confinement

Intercept: An internal review of Efraín Romero de la Rosa’s death in ICE custody found almost two dozen policy violations during his stint in detention.

 

Biden’s Pick To Lead CBP Supports Two Of Trump’s Most Controversial Border Initiatives

Intercept: In a confirmation hearing, Tucson Police Chief Chris Magnus signaled support for Title 42 and border wall construction.

 

Biden’s Embrace Of Border Tech Raises Privacy Concerns

Law360: President Joe Biden hasn’t shied away from using controversial technologies for immigration enforcement, raising concerns that his predecessor’s pet project to build a border wall is being replaced with a “virtual wall” rife with privacy and civil liberties problems.

 

California Hires Border Wall Contractors to Screen, Vaccinate Migrants

Newsweek: SLS was previously assigned to build the border wall under the Donald Trump administration, but now it is expected to work with the health department to also offer migrants prescription services and transportation for “safe onward travel.”

 

LITIGATION/CASELAW/RULES/MEMOS

 

Justices Revive Citizenship Suit After Feds Yield Ground

Law360: The U.S. Supreme Court on Monday vacated a Third Circuit ruling in a deportation case that barred a Yemeni man from acquiring citizenship through his naturalized but divorced parents, after the Biden administration said the lower court overlooked precedent.

 

Anti-Immigration Group Asks Justices To Nix Bond Hearings

Law360: Advocates of drastically reduced immigration urged the U.S. Supreme Court on Thursday to overturn decisions in the Third and Ninth circuits that said migrants who have been detained more than six months should get a bond review hearing.

 

High Court Urged To Reverse ‘Impossible’ Review Standard

Law360: A coalition of conservationists and ranchers has asked the U.S. Supreme Court to review a Ninth Circuit ruling that the federal government need not subject immigration policies to environmental review, saying it created an “impossible” standard for challenging immigration programs.

 

1st Circ. Orders BIA To Weigh Honduran Man’s Testimony

Law360: The First Circuit revived a Honduran man’s bid for protection from a deportation order, ruling that immigration authorities saw discrepancies in his testimony that he faced persecution as an HIV-positive gay man where there were none.

 

CA2 Finds Connecticut Convictions for Possession of Narcotics with Intent to Sell Were Aggravated Felony Drug Trafficking Offenses

AILA: The court held that the petitioners’ convictions under Connecticut General Statute §21a-277(a) were controlled substance offenses and aggravated felony drug trafficking crimes, and that the jurisdictional holding of Banegas Gomez v. Barr remained good law. (Chery v. Garland, 10/15/21)

 

CA3 Finds BIA Misapprehended Applicable Law by Not Considering Religious Persecution Against Chinese Petitioner Cumulatively

AILA: Granting the petition for review and remanding, the court held that while the BIA was correct in finding that the petitioner had not suffered political persecution in China, its reasons for rejecting religious persecution were flawed. (Liang v. Att’y Gen., 10/12/21)

 

CA4 Strikes Down Matter of S-O-G- & F-D-B-

AILA: The court abrogated Matter of S-O-G- & F-D-B-, holding that 8 CFR §§1003.10(b) and 1003.1(d)(1)(ii) unambiguously grant IJs and the BIA the general power to terminate removal proceedings. (Chavez Gonzalez v. Garland, 10/20/21)

 

5th Circ. Wants DOJ Input On Full Court Review Of ICE Policy

Law360: The Fifth Circuit on Wednesday asked the federal government to respond to Texas and Louisiana’s petition for the full appellate court to review a panel’s decision allowing the Biden administration’s policy curbing immigration enforcement operations to remain in place.

 

Feds Can’t Put DACA Challenge On Hold For Rulemaking

Law360: The Fifth Circuit refused to freeze the Biden administration’s appeal of a lower court order stopping the federal government from approving new applications under the Deferred Action for Childhood Arrivals program while it inks a replacement rule.

 

CA9 (2-1) Reverses Fraihat Preliminary Injunction

LexisNexis: Fraihat v. ICE Maj. – “COVID-19 presents inherent challenges in institutional settings, and it has without question imposed greater risks on persons in custody. But plaintiffs had to demonstrate considerably more than that to warrant the extraordinary, system-wide relief that they sought.

 

District Court Orders Government to Begin Processing 9,905 FY2020 Diversity Visas as Soon as Is Feasible

AILA: The U.S. District Court for the District of Columbia ordered the defendants to commence processing the 9,905 DV-2020 visas as soon as is feasible, and to conclude such processing no later than the end of FY2022, or September 30, 2022. (Gomez, et al. v. Biden, et al., 10/13/21)

 

Feds Say DC Court Wrong To Narrow Power To Expel Migrants

Law360: The federal government urged the D.C. Circuit to erase a lower court’s injunction blocking its use of a public health law to expel migrant families, arguing that the lower court interpreted its powers under the authority too narrowly.

 

Judge Scolds CBP In Partial Win For Press Freedom Group

Law360: A D.C. federal judge ordered U.S. Customs and Border Protection on Monday to release previously withheld documents related to the government’s 2017 attempt to unmask a Trump administration critic’s Twitter account, while scolding the agency for its “lackluster efforts” to comply with Freedom of Information Act requirements.

 

Mich. Judge Drops DACA Holders’ Travel Permit Suit

Law360: A Michigan federal judge rejected two brothers’ claims that their due process and religious freedom rights were violated when they were denied travel authorization to Mexico for their grandfather’s funeral, saying that they had no recourse against the officials involved.

 

Documents Related to Lawsuit Seeking to Make Unpublished BIA Decisions Publicly Available

AILA: DOJ provided a status update to the court, which states that the BIA and NYLAG are in discussions regarding the possibility of posting certain unpublished BIA decisions online, both prospectively and retrospectively. (NYLAG v. BIA, 10/15/21)

 

DOD Denies Flouting Immigrant Soldier Citizenship Order

Law360: The Pentagon denied foreign-born soldiers’ contention that it was flouting an injunction to process their citizenship requests, telling a Washington, D.C., court that it was complying and close to doubling the number of requests that are processed annually.

 

IJ Finds Respondent Merits Favorable Exercise of Discretion for Fraud Waiver Under INA §237(a)(1)(H)

AILA: In balancing respondent’s desirability as a permanent resident with social and humane considerations, the IJ found that respondent was entitled to a waiver of removability for fraud or misrepresentation under INA §237(a)(1)(H). Courtesy of Christopher Helt. (Matter of Mohammed, 9/13/21)

 

CBP Notification of Continuation of Travel Restrictions from Mexico and Intent to Lift Restrictions for Vaccinated Individuals

AILA: CBP notification of the continuation of travel restrictions limiting non-essential travel from Mexico into the U.S. at land ports of entry through 1/21/22, while also announcing the intent to lift these restrictions for individuals fully vaccinated against COVID-19. (86 FR 58216, 10/21/21)

 

DHS Notice on Implementation of Employment Authorization for Individuals Covered by DED for Hong Kong

AILA: DHS notice establishing procedures for individuals covered by Deferred Enforced Departure (DED) for Hong Kong to apply for employment authorization through 2/5/23. (86 FR 58296, 10/21/21)

 

RESOURCES

 

 

EVENTS

 

 

ImmProf

Monday, October 25, 2021

Sunday, October 24, 2021

Saturday, October 23, 2021

Friday, October 22, 2021

Thursday, October 21, 2021

Wednesday, October 20, 2021

Tuesday, October 19, 2021

Monday, October 18, 2021

 

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

Sadly, more than eight months in, the Biden Administration lacks:

  • A coherent vision for the border;
  • A cogent plan to restore the refugee system and the legal asylum system (the poorly conceived “proposed asylum regs” — mostly opposed by our Round Table and other asylum experts — don’t make it);
  • The tough, courageous, well-informed leadership to make the necessary border enforcement and Immigration Court reforms and to stand up to the entirely predictable, well-organized nativist opposition, led by Stephen “Gauleiter” Miller and his accomplices.

Not a “recipe for success,” in my view! 

Another item worthy of note: The pending settlement between NYLAG and EOIR on making unpublished decisions readily accessible to the public could open new avenues for advocates.

For example, the 1st Circuit recently cited an unpublished BIA decision in reversing the BIA on “equitable tolling.” https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca1-equitable-tolling-remand-james-v-garland#

BIA panel decisions favorable to respondents are almost never published as precedents by an organization where judicial independence and due process have long taken a back seat to “job preservation” within the DOJ. Politicos @ DOJ are normally much more interested in supporting enforcement and “false deterrence” goals than with enhancing due process, enforcing immigrants’ rights, and achieving racial justice when it comes to immigrants.

🇺🇸Due Process Forever! 

PWS 

1-26-21

Related posts:

  1. THE GIBSON REPORT— 01-02-22 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group — Garland’s Aimless Docket Reshuffling (“ADR”) Squeezes Refugees On Both Ends Of His Ludicrous Backlog, As Those Patiently Waiting Given Court Dates Nearly A Decade In The Future, While Recent Arrivals Mindlessly Rocketed To The “Front Of The Line” Struggle To Find Lawyers & Prepare Cases — Plus Other New Year News From The Dystopian World Of U.S. Immigration!
  2. 🧑🏽‍⚖️⚖️🗽🇺🇸WHO’S JUDGE IS IT ANYWAY? — The Crisis Of Independence In Our Immigration Courts! — Coming April 7, 2021! — Sponsored By The HNBA! — Don’t Miss It!
  3. 🗽⚖️🇺🇸LEE GELERNT @ ACLU SAYS BIDEN ADMINISTRATION “cannot farm out the asylum system.” Yet, That Appears To Be Largely What They Are Doing Under New, Previously Unpublicized Program!
  4. ⚖️🌟🗽NDPA SUPERSTARS, PRACTICAL EXPERT PROFESSORS LINDSAY M. HARRIS AND SARAH R. SHERMAN-STOKES SCORE BIDEN ADMINISTRATION’S CONTINUED RELIANCE ON BOGUS 🏴‍☠️ TRUMP-ERA, WHITE NATIONALIST COVID-19 RESTRICTIONS TO RETURN REFUGEES TO DANGER & DEATH @ SOUTHERN BORDER!☠️🤮⚰️

☠️👎🏽GARLAND EOIR’S DISTURBINGLY BAD ANALYSIS IN YET ANOTHER ASYLUM CASE “OUTED” BY FIRST CIRCUIT! — Lopez Troche v. Garland

 

Dan Kowalski reports for LexisNexis Immigration Community:

http://media.ca1.uscourts.gov/pdf.opinions/20-1718P-01A.pdf

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca1-on-credibility-lopez-troche-v-garland#

“Mario Rene Lopez Troche (“Lopez Troche”), a native and citizen of Honduras, petitions for review of an order of the Board of Immigration Appeals (“BIA”) that affirms the denial of his application for withholding of removal and protection under the Convention Against Torture (“CAT”). We vacate and remand. …  [T]he record does not reveal the claimed inconsistency between the testimony and the reasonable fear interview as to Lopez Troche’s reporting to police that the BIA identified. The BIA cited to three portions of Lopez Troche’s testimony in support of its determination that the IJ did not clearly err in finding an inconsistency between what Lopez Troche told the asylum officer during his reasonable fear interview and how he testified as to the reporting of past abuse. But, none of those passages supports the BIA’s determination. … Nor is it possible to read either the BIA or the IJ to have inferred from Lopez Troche’s failure to report to the police the specific incidents that he discussed in his testimony that he was asserting in that testimony that did not report any incidents of abuse ever. Neither the IJ’s opinion nor the BIA’s expressly purports to premise its ruling as to adverse credibility on the basis of such inferential reasoning, see Chenery, 318 U.S. at 95, and we do not see what basis there would be for drawing that inference on this record, given that, in his reasonable fear interview, declaration, and testimony, Lopez Troche discussed a series of traumatic physical and sexual assaults that he had experienced that appears to have stretched back to a time when he was eight years old and that thus encompassed many more incidents than those addressed specifically in the portions of his testimony on which the BIA focused. As a result, we must vacate and remand the BIA’s order affirming the denial of Lopez Troche’s request for withholding of removal.”

[Hats way off to PAIR Project Legal Director Elena Noureddine and Staff Attorney Irene Freidel!]

pastedGraphic.png pastedGraphic_1.png

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Law students and attorneys of the NDPA are out there helping refugees every day. Meanwhile, over at Garland’s dysfunctional EOIR, Immigration Judges and BIA Appellate Immigration Judges strain to improperly “diddle the record” to deny relief to asylum seekers! Then, OIL defends them!

Essentially, in this case, the BIA “made it up and misrepresented the record” in an effort to deny asylum for specious reasons! Then, OIL tried to “blow it by” the Circuit! 

“[T]he record does not reveal the claimed inconsistency between the testimony and the reasonable fear interview as to Lopez Troche’s reporting to police that the BIA identified.” That’s “judgespeak” for: The BIA invented non-existent “inconsistencies” to unfairly deny asylum. Then, OIL defended that fabrication and denial of due process! What does this say about Garland’s leadership at DOJ?

Whatever happened to legal and judicial ethics? Clearly they were “deep sixed” under Sessions and Barr. But, why is Garland continuing to operate DOJ as an “ethics and quality free zone?”

This is a bad system with the wrong folks in too many judicial and leadership positions and presenting an overwhelming need for robust, bold change in how decisions are made and defended in Circuit Court. So far, Garland has not made the fundamental personnel changes and “quality upgrades” necessary to bring due process and some semblance of expertise and order back to his broken Immigration Courts! Why not?

Why are the kind of individuals who should be Immigration Judges and EOIR judicial leaders, talented lawyers like Elena and Irene, still “on the outside” rather than being actively recruited and brought in to replace those unable to perform judicial, administrative, and litigation duties in a fair, expert manner, that enhances due process? Why is EOIR still operating with a “judiciary” the majority of whom were installed by the Trump regime at Justice to “dehumanize, deport, and deter” without regard for due process? Why is OIL continuing to “defend the indefensible?” Why isn’t Congress asking Garland these questions?

Government lacking in expertise, intellectual honesty, professional ethics, and accountability is “bad government.” That’s true no matter which party holds power!

🇺🇸Due Process Forever!

PWS

10-21-21

Related posts:

  1. ⚖️🗽🧑🏽‍⚖️”MEDLEY OF INJUSTICE” — CIRCUITS CONTINUE TO LOWER HAMMER 🔨 ON BIA: Anti-Asylum Misogyny; Illegal & Incredibly Stupid “Policies;” “Perplexing” Lack Of Legal Knowledge Highlighted In Latest Batch Of Reversals! — “Attempted rape by a gang of men, in broad daylight on a public street, is especially terrorizing because it powerfully demonstrates the perpetrator’s domination, control over the victim and imperviousness to the law. Requiring evidence of additional harms both minimizes the gravity of the sexual assault and demeans the victim.”
  2. 🏴‍☠️☠️🤮👎🏻ERROR SUPPLY: EOIR’s Anti-Asylum Bias, Failure To Apply Precedents, Earns Yet Another Rebuke From 3d Cir.  — Blanco v. AG
  3. ⚖️🗽🧑🏽‍⚖️COURTS OF APPEALS CONTINUE TO THROW ROTTEN TOMATOES 🍅 @ BIA’S ANTI-ASYLUM BIAS — Basic Analytical, Legal Errors Continue From Weaponized, Non-Expert “Star Chamber” ☠️ Posing As ”Tribunal!” — Judge Garland Must Fix This Inexcusable, Unnecessary, Systemic Failure Now! — Justice For Persons Of Color & Migrants Can’t “Wait For Godot!”
  4. WOW, HERE’S A SURPRISE: MANY KIDS FLEEING VIOLENCE IN THE NORTHERN TRIANGLE KNOW NOTHING ABOUT BIDEN BORDER POLICIES — They Are Just Trying To Save Their Lives!

🇺🇸⚖️🗽👍🏼😎NDPA GOOD GUYS WIN SOME BIGGIES TOO! — 1ST CIRCUIT FINDS EOIR BOND PROCESS UNCONSTITUTIONAL AS DENIAL OF DUE PROCESS! — Hernandez-Lara v. Lyons!

Here’s the (split) decision:

1st on Bond

Here’s a key quote from Circuit Judge Kayatta’s majority opinion:

KAYATTA, Circuit Judge. Ana Ruth Hernandez-Lara (“Hernandez”), a thirty-four-year-old native and citizen of El Salvador, entered the United States in 2013 without being admitted or paroled. An immigration officer arrested Hernandez in September 2018, and the government detained her at the Strafford County Department of Corrections in Dover, New Hampshire (“Strafford County Jail”) pending a determination of her removability. Approximately one month later, Hernandez was denied bond at a hearing before an immigration judge (IJ) in which the burden was placed on Hernandez to prove that she was neither a danger to the community nor a flight risk.

Hernandez subsequently filed a petition for a writ of habeas corpus in the United States District Court for the District of New Hampshire, contending that the Due Process clause of the Fifth Amendment entitled her to a bond hearing at which the government, not Hernandez, must bear the burden of proving danger or flight risk by clear and convincing evidence. The district court agreed and ordered the IJ to conduct a second bond hearing at which the government bore the burden of proving by clear and convincing evidence that Hernandez was either a danger or a flight risk. That shift in the burden proved pivotal, as the IJ released Hernandez on bond following her second hearing, after ten months of detention. The government now asks us to reverse the judgment

-3-

Case: 19-2019 Document: 00117776979 Page: 4 Date Filed: 08/19/2021 Entry ID: 6441266

of the district court, arguing that the procedures employed at Hernandez’s original bond hearing comported with due process and, consequently, that the district court’s order shifting the burden of proof was error. Although we agree that the government need not prove a detainee’s flight risk by clear and convincing evidence, we otherwise affirm the order of the district court. Our reasoning follows.

. . . .

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

Note that the Garland GOJ continued to defend EOIR’s unconstitutional procedures. So, don’t be shocked if they ask the Supremes to intervene. And the current Supremes have too often been happy to ignore the Due Process Clause when it comes to the rights of migrants of color.

But, it’s some progress toward eventually dismantling the “New American Gulag” — the one that Biden is still running (despite campaign promises to the contrary) and that righty Federal Judges and nativist GOP AGs in the Fifth Circuit are committed to expanding!

For the NDPA, the war to save humanity never ends!

🇺🇸Due Process Forever!

PWS

08-20-21

Related posts:

  1. U.S. DISTRICT JUDGE ON GULAG: “Under the circumstances, Galan-Reyes’ detention at Pulaski – where he shares dormitory-style living quarters with up to 50 other detainees – which obviously places him at risk for contracting this serious and potentially deadly illness, is tantamount to punishment.” — Galen-Reyes v. Acoff, S.D. IL
  2. WE KNOW THAT SESSIONS, WHITAKER, & BARR HAVE TURNED THE DOJ INTO A LEGAL, MORAL, PROFESSIONAL, & ETHICAL CESSPOOL — Some Federal Judges Are Beginning To Take Notice: “To say the least, it is disappointing that [DOJ] counsel, after consulting with other counsel including ‘prosecutors and appellate attorneys’ in this District’s United States Attorney’s office, submitted a legal memorandum to the Court that failed to acknowledge contrary case law that did not support its position.”
  3. 🏴‍☠️SUPREMES’ GOP MAJ. SLAMS GULAG DOOR SHUT ON REFUGEES IN “WITHHOLDING ONLY PROCEEDINGS” 👎🏽 — “NO BOND HEARINGS FOR YOU, ALIENS!” — Johnson v. Guzmán Chavez (6-3) — Oh, To Be A “Pipeline Builder” Endowed With Legal & Human Rights That Even Elite GOP Supremes Will Recognize!
  4. ⚖️👨‍⚖️🤮 JUDICIAL SOPHISTRY AT ITS BEST! — 1ST CIRCUIT REAFFIRMS THAT GARLAND IS RUNNING AN UNCONSTITUTIONAL BOND SYSTEM @ EOIR THAT INFRINGES ON INDIVIDUAL FREEDOMS, BUT MANAGES TO “TALK ITSELF OUT OF” GRANTING EFFECTIVE INJUNCTIVE RELIEF!  — Garland’s “Anti-Due Process” Stance “Makes My Point” Once Again!

🏴‍☠️🤡SLOPPINESS, POOR ANALYSIS, MISCONSTRUING RECORD, CONTEMPT FOR COURTS CONTINUE TO PLAGUE BIA’S DENIAL CULTURE!

Kangaroos
Anybody remember the last time we interpreted the law or facts in favor of a human? 
https://www.flickr.com/photos/rasputin243/
Creative Commons License

Here are four more recent screw-ups:

  1. Misinterpreting “Realistic Possibility” — 8th Cir.

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/ca8-on-realistic-probability—lopez-gonzalez-v-wilkinson

CA8 on “Realistic Probability” – Lopez Gonzalez v. Wilkinson

Lopez Gonzalez v. Wilkinson

“The question in this case is whether the categorical approach requires a petitioner seeking cancellation of removal to demonstrate both that the state offense he was convicted of is broader than the federal offense and that there is a realistic probability that the state actually prosecutes people for the conduct that makes the state offense broader than the federal offense. We conclude that it does not. … Because the BIA’s decision relied on a misinterpretation of the realistic probability inquiry, we grant the petition for review, vacate, and remand for further proceedings consistent with this opinion.”

[Hats off to Jamie Arango!]

2) Wrong Interpretation Of Child Status Protection Act — 2d Cir.

Cuthill v. Blinken

https://www.ca2.uscourts.gov/decisions/isysquery/05b681bb-4767-4cf6-b370-6f0ee77ad5d2/3/doc/19-3138_opn.pdf

D. Chevron Deference

Lastly, the government argues that we should defer to the decision by the Board of Immigration Appeals (“BIA”) in Matter of Zamora-Molina, 25 I. & N. Dec. 606, 611 (B.I.A. 2011), in which the BIA adopted the same interpretation as the Department of State. Even assuming, without deciding, that Chevron deference applies when one agency (the Department of State) seeks to rely on the interpretation of another agency (the Department of Justice), we agree with the district court and with the Ninth Circuit that Chevron deference does not apply here because “the intent of Congress is clear.” Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842 (1984); see also id. at 842–43 (“If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.”); Tovar, 882 F.3d at 900 (declining to apply Chevron deference to Zamora-Molina because “traditional tools of statutory construction” and “the irrationality of the result sought by the government” combine to “demonstrate beyond any question that Congress had a clear intent on the question at issue”). As discussed above, the text, structure, and

33

legislative history of the CSPA conclusively show the “unambiguously expressed intent of Congress” to protect beneficiaries like Diaz. Chevron, 467 U.S. at 843.7

3) Ignoring Previous Circuit Ruling On Related Case — 10th Cir.

https://www.ca10.uscourts.gov/opinions/20/20-9520.pdf

Ni v. Wilkinson, unpublished

After we determined that conditions in China had materially worsened for Christians, Mr. Ni moved again for reopening. Despite our opinion in his wife’s case, the Board of Immigration Appeals concluded

2

again that Mr. Ni had failed to show a material change in country conditions.

This conclusion is unsupportable. Mr. Ni’s evidence of worsening

conditions in China largely mirrored his wife’s evidence, which had led us

to grant her petition for review. Mr. Ni’s evidence was even stronger than

his wife’s because China had recently adopted a regulatory crackdown on

practicing Christians. We thus grant Mr. Ni’s petition for review.

4) Misconstruction Of Record — 1st. Cir.

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/ca1-on-albania-changed-circumstances-lucaj-v-wilkinson

CA1 on Albania, Changed Circumstances: Lucaj v. Wilkinson

Lucaj v. Wilkinson

“To support his case for reopening, Mr. Lucaj submitted an affidavit complaining in particular about two events that occurred after his removal proceeding in 2006: The Socialist party took power in 2013, and then in 2019 the Socialists’ corruption and connections with organized crime deterred the opposition party from even participating in the 2019 elections. Mr. Lucaj provided, among other things, the State Department’s 2018 Human Rights Report on Albania, the Freedom House “Freedom in the World 2018” Report on Albania, and articles from 2018 and 2019 about corruption in Albania and the Socialist Party’s success in recent elections. We do not know whether those submissions show materially worsening conditions for Democratic Party members in Albania, however, because the BIA refused to compare those reports to available evidence of conditions from 2006, claiming that Mr. Lucaj had not “explained how the proffered . . . country condition documentation show[s] qualitatively different conditions from 2006.” Plainly, though, he did so by pointing out the two cited, post-2006 events as evidence of changed conditions. The BIA’s failure to assess whether those changes were sufficient was arbitrary and capricious. … Therefore, we reverse the decision by the BIA and remand Mr. Lucaj’s case so that the BIA can review available evidence to examine whether conditions for members of the Democratic Party in Albania have deteriorated since 2006 and, if so, whether Mr. Lucaj has established a prima facie case for relief.”

[Hats off to Gregory G. Marotta!]

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

America and humanity deserve better from a supposed “expert tribunal” which actually functions more like a “denial factory” without much, if any, “quality control.” No wonder these guys are running an out of control, ever-expanding 1.3 million case backlog!

Denying continuances, not closing cases that belong at USCIS, rushed briefing, IJ’s “certifying” BIA remands to the Director (who should have no judicial role), dismissing applications for failure to fill in irrelevant blanks, raising fees, and a host of other nonsensical proposals that EOIR has had shot down by the Article III Courts recently won’t reduce the backlogs. They actually will make it worse, as have all the other “gimmicks” tried by EOIR to eradicate due process and dehumanize migrants over the past four years!

See, e.g., https://immigrationcourtside.com/2021/03/11/%e2%9a%96%ef%b8%8f%f0%9f%97%bdu-s-district-judge-susan-illston-nd-ca-shreds-enjoins-eoirs-anti-due-process-%e2%98%a0%ef%b8%8f%f0%9f%a4%aemidnight-rules-judge-p/

Who ever heard of lower court judges providing “quality control” for appellate judges, working through a bureaucrat who (at the time the proposal was supposedly “finalized”) had never presided over a case in Immigration Court? And, let’s remember, these are haphazardly selected trial judges, a decidedly non-diverse, non-representative group, whose own qualifications, expertise, judicial temperament, and training have been widely criticized by experts in the field. Few of today’s Immigration Judges and BIA Judges would be “household names” among immigration, human rights, and constitutional law experts and scholars! 

See,e.g.,  https://immigrationcourtside.com/2021/03/08/%f0%9f%8f%b4%e2%80%8d%e2%98%a0%ef%b8%8finside-a-failed-and-unjust-system-reuters-report-explains-how-the-trump-administration-destroyed-due-process-fundamental-fairness-humanity-in-the-u-s-immig/

The current mess is largely the result of Aimless Docket Reshuffling imposed on the Immigration Courts by unqualified politicos at the DOJ and their equally unqualified toadies at EOIR HQ. Also, DHS has more often than not ignored the realities of good docket management and the prudent exercise of prosecutorial discretion. It is not the fault of the vulnerable migrants and their lawyers victimized by this absurdly politicized, biased, and mal-administered system!

Restoration of justice at EOIR will require radical due process oriented changes starting with new, professional leadership from “practical scholars” in immigration and human rights as well as replacing BIA Judges with better qualified jurists selected from the ranks of those “practical scholars.” Quality control, expertise, competence, common sense, and human understanding are all lacking at today’s EOIR!

Judge Garland must “clean house!” Now!

🇺🇸⚖️🗽Due Process Forever!

PWS

03-12-21

Related posts:

  1. ⚖️🗽🧑🏽‍⚖️COURTS OF APPEALS CONTINUE TO THROW ROTTEN TOMATOES 🍅 @ BIA’S ANTI-ASYLUM BIAS — Basic Analytical, Legal Errors Continue From Weaponized, Non-Expert “Star Chamber” ☠️ Posing As ”Tribunal!” — Judge Garland Must Fix This Inexcusable, Unnecessary, Systemic Failure Now! — Justice For Persons Of Color & Migrants Can’t “Wait For Godot!”
  2. ⚖️🗽🧑🏽‍⚖️”MEDLEY OF INJUSTICE” — CIRCUITS CONTINUE TO LOWER HAMMER 🔨 ON BIA: Anti-Asylum Misogyny; Illegal & Incredibly Stupid “Policies;” “Perplexing” Lack Of Legal Knowledge Highlighted In Latest Batch Of Reversals! — “Attempted rape by a gang of men, in broad daylight on a public street, is especially terrorizing because it powerfully demonstrates the perpetrator’s domination, control over the victim and imperviousness to the law. Requiring evidence of additional harms both minimizes the gravity of the sexual assault and demeans the victim.”
  3. ⚖️🧑🏽‍⚖️JUDICIAL REVIEW — C.A. 2 — Brace Of Bad BIA Bobbles On Basics Brings “Culture Of Denial” Into Focus — Justice Will Continue To Be Illusive @ EOIR 👎🏽 Until Garland Steps Up & Replaces His Fatally Flawed BIA With Real Judges Who Are Progressive Practical Scholars In Immigration, Due Process, Human Rights, With A Firm Commitment To Bringing Racial & Gender Equity To Now-Disgraced Immigration Courts!🤮
  4. PURE BS 💩 — TRUMP’S “BIG LIE” ABOUT MIGRANT APPEARANCES FOR HEARINGS BOGUS AS $3 BILL 🤮👎🏻— Replacing DHS/EOIR With Rational, Qualified, Fact-Based Governance & Real Judiciary Could Bring Appearance Rate Close To 100%!  — Two Items From ImmigrationProf Blog!

⚖️🗽CREAMED AGAIN! — 1st Circuit Finds Errors Galore In BIA’s Denial Of Withholding To Honduran Woman: Credibility; Corroboration; Following Precedent; CAT Claim! — Molina-Diaz v. Wilkinson

 

EYORE
“Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
Four Horsemen
BIA Asylum Panel In Action
Albrecht Dürer, Public domain, via Wikimedia Commons
Star Chamber Justice
“Justice”
Star Chamber
Style

http://media.ca1.uscourts.gov/pdf.opinions/15-2321P-01A.pdf

Molina-Diaz v. Wilkinson, 1st Cir., 02-25-02

PANEL: Howard, Chief Judge, and Kayatta, Circuit Judge.**Judge Torruella heard oral argument in this matter and participated in the semble, but he did not participate in the issuance of the panel’s opinion in this case. The remaining two panelists therefore issued the opinion pursuant to 28 U.S.C. § 46(d).

ATTORNEYS: Nancy J. Kelly, with whom John Willshire Carrera and Harvard Immigration & Refugee Clinic of Harvard Law School at Greater Boston Legal Services were on brief, for petitioner.

Stratton C. Strand, Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, with whom Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Douglas E. Ginsburg, Assistant Director, and Derek C. Julius, Senior Litigation Counsel, were on brief, for respondent.

OPINION BY: Chief Judge Howard

KEY QUOTE: 

Petitioner Olga Araceli Molina- Diaz is a Honduran native and citizen who twice entered the United States without authorization. The government ordered her removed to Honduras, and an immigration judge (“IJ”) denied her subsequent application for withholding of removal (“Application”). Molina appealed to the Board of Immigration Appeals (“BIA”), which affirmed the IJ’s order and denied Molina’s motion to reopen and remand. Molina now petitions this court to review the BIA’s decision. Because we agree that the IJ and BIA made legal errors, we grant the petition, vacate the removal order, and remand for further proceedings.

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

Folks, we’re not talking about obtuse principles of international law, complex statutory interpretation, or “cutting edge” legal concepts. No, this is about credibility, corroboration, following your own precedents (even when they might produce a result favorable to the respondent), and adjudicating a CAT claim. 

These are the “bread and butter” of basic asylum and withholding adjudication that is the staple of most Immigration Court dockets. Not rocket science! Yet, once they got below the “caption line,” the BIA, a supposedly “expert tribunal,” got pretty much everything else wrong. With human life at stake, no less!

This isn’t just an “outlier.” It reveals deep systemic problems in a dysfunctional system that has been programmed to cut corners and deny relief. After 21 years as an EOIR Judge at every level, I know an “autopilot denial” when I see one. 

This is clearly the product of a judge and a BIA panel that approached the case with a “we deny almost all Hondurans, it’s just a question of how” attitude. Because “the bottom line got to no,” obviously nobody paid much, if any, attention to what was above it. I suspect that if the staff attorney had drafted this as a grant or a remand, the BIA panel would have given it a more thorough and searching review. 

Following your own precedents isn’t a matter that requires profound knowledge or amazing analytical skills. It just requires some level of basic expertise and an open mind — things that appear to be sorely lacking throughout today’s broken EOIR.

The flawed EOIR approach to claims for asylum and withholding, particularly those involving the Northern Triangle and women, is very costly, not only to the humans involved, but also to our justice system. This respondent reentered the U.S. in 2009, and her merits hearing before the IJ took place in 2012. A careful, proper analysis could well have resulted in a grant at that time. 

Instead, this “plethora of errors,” created by EOIR’s corner cutting and obsession with denying claims, bounced around the system for nearly a decade before being “outed” by the Circuit Court — obviously the only judges involved who took the time to actually analyze the case in accordance with the law, the facts, and the arguments made by counsel. So, after nearly a decade, at three different levels of review, we’re basically back to “square one” with this case.

The case will be returned to the BIA who inevitably will return it to to the IJ for a new hearing that actually complies with the law and due process. Given the total dysfunction in the EOIR system, it’s could easily be around for another decade. 

Getting it right at the first level is critically important in a high volume, yet life determining, system like the Immigration Courts! That’s why it’s so absolutely essential that Judge Garland replace the current BIA and many of the current trial judges with “practical experts;” judges selected on a merit-basis because of their understanding of immigration and human rights laws, demonstrated analytical skills, and who by experience and reputation are overwhelmingly committed to due process, fundamental fairness, treating respondents and their lawyers with respect and dignity, and getting the right result the first time around. “The best and the brightest,” if you will! 

As this case that began well before Trump shows, the deterioration at EOIR has been underway across Administrations over the past two decades. It greatly accelerated and became more acute under Trump. That’s particularly true because “Trump AGs” drastically expanded the Immigration Courts and the BIA (while exponentially increasing the backlog), and now have appointed the majority of judges in the system — after just four years! 

Compare that with the Obama Administration’s practice of taking an mind-boggling average of two years to fill IJ vacancies! And, then filling them almost all with “government insiders and former prosecutors” rather than some of the many renowned “practical scholars,” experienced clinicians, and notable litigators in the private/academic/NGO immigration/human rights sectors. They actually left behind unfilled judicial vacancies for Sessions to “pounce on.” Says all you really need to know about the “priority” of immigrant justice in the Obama Administration. The “good enough for government work” attitude that has replaced “guaranteeing fairness and due process for all” as the “EOIR Vision” needs to go, now!

🇺🇸⚖️🗽Due Process Forever! Achieving it in the Immigration Courts will be the “litmus test” of whether Judge Garland succeeds or fails in his new role as Attorney General! You can’t improve justice for all in America while running a “court system” that denies justice, often ignores the law, mocks due process, eschews best practices and common sense, and routinely disrespects the humanity of those appearing before it! All while running up a stunning 1.3 million case backlog! As Justice Sotomayor would say: “This is not justice!”

PWS

02-26-21

Related posts:

  1. ⚖️🗽🧑🏽‍⚖️”MEDLEY OF INJUSTICE” — CIRCUITS CONTINUE TO LOWER HAMMER 🔨 ON BIA: Anti-Asylum Misogyny; Illegal & Incredibly Stupid “Policies;” “Perplexing” Lack Of Legal Knowledge Highlighted In Latest Batch Of Reversals! — “Attempted rape by a gang of men, in broad daylight on a public street, is especially terrorizing because it powerfully demonstrates the perpetrator’s domination, control over the victim and imperviousness to the law. Requiring evidence of additional harms both minimizes the gravity of the sexual assault and demeans the victim.”
  2. ⚖️🗽🧑🏽‍⚖️COURTS OF APPEALS CONTINUE TO THROW ROTTEN TOMATOES 🍅 @ BIA’S ANTI-ASYLUM BIAS — Basic Analytical, Legal Errors Continue From Weaponized, Non-Expert “Star Chamber” ☠️ Posing As ”Tribunal!” — Judge Garland Must Fix This Inexcusable, Unnecessary, Systemic Failure Now! — Justice For Persons Of Color & Migrants Can’t “Wait For Godot!”
  3. 🏴‍☠️BIA CONTINUES TO SPEW FORTH ERRORS IN LIFE OR DEATH ☠️ ASYLUM CASES, SAYS 4TH CIR. — “Three-In-One” — Improperly Disregarding Corroborating Evidence; Incorrect Legal Standard On Past Persecution; Wrong Nexus Finding! — Arita-Deras v. Wilkinson
  4. ⚖️🧑🏽‍⚖️JUDICIAL REVIEW — C.A. 2 — Brace Of Bad BIA Bobbles On Basics Brings “Culture Of Denial” Into Focus — Justice Will Continue To Be Illusive @ EOIR 👎🏽 Until Garland Steps Up & Replaces His Fatally Flawed BIA With Real Judges Who Are Progressive Practical Scholars In Immigration, Due Process, Human Rights, With A Firm Commitment To Bringing Racial & Gender Equity To Now-Disgraced Immigration Courts!🤮

⚖️🗽🧑🏽‍⚖️COURTS OF APPEALS CONTINUE TO THROW ROTTEN TOMATOES 🍅 @ BIA’S ANTI-ASYLUM BIAS — Basic Analytical, Legal Errors Continue From Weaponized, Non-Expert “Star Chamber” ☠️ Posing As ”Tribunal!” — Judge Garland Must Fix This Inexcusable, Unnecessary, Systemic Failure Now! — Justice For Persons Of Color & Migrants Can’t “Wait For Godot!”

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

Two most recent recent rebukes, courtesy of Dan Kowalski at Lexis-Nexis Immigration Community:

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/ca6-on-exceptional-circumstances-e-a-c-a-v-rosen

Immigration Law

pastedGraphic.png

Daniel M. Kowalski

12 Jan 2021

 

  • More

CA6 on Exceptional Circumstances:

E.A.C.A. v. Rosen

“[W]e conclude that the BIA abused its discretion by denying E.A.’s motion to reopen. E.A.’s mother’s recent childbirth is a serious medical event, which coupled with E.A.’s minor age, her difficulty obtaining transportation, and her difficulty navigating the immigration system without assistance, constitute “exceptional circumstances” necessitating rescission of the in absentia removal order. … The BIA’s decision was also contrary to law, and therefore an abuse of discretion. … First, the BIA improperly considered E.A.’s age separately, rather than considering age alongside other factors, when determining that she had not shown that exceptional circumstances justified her failure to appear. Second, the BIA erred when it dismissed without adequate explanation E.A.’s evidence that she is eligible for SIJS. Finally, the BIA improperly stated that E.A. was required to present prima facie evidence that she was eligible for immigration relief as part of her motion to reopen. … For the foregoing reasons, we GRANT the petition for review, VACATE the removal order, and REMAND for further proceedings consistent with this opinion.”

[Hats way off to Rachel Naggar!  Here is a link to the audio of the oral argument.]

pastedGraphic_1.png

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca1-on-asylum-u-s-army-contractor-al-amiri-v-rosen

CA1 on Asylum, U.S. Army Contractor: Al Amiri v. Rosen

Al Amiri v. Rosen

“Salim Al Amiri, an Iraqi citizen, seeks relief from removal on the grounds of asylum, withholding of removal, and protection under the United Nations Convention Against Torture (“CAT”). He premises his requests for such relief on the harm that he fears that he would be subjected to in Iraq at the hands of members of Iraq’s military or civilian insurgents operating in that country. Al Amiri contends that he has reason to fear he would be subjected to that harm on account of his work as a paid contractor for the United States Army during the war in Iraq, as in that role he educated U.S. soldiers about Iraqi customs and practices as they prepared for their deployment. We vacate and remand the ruling of the Board of Immigration Appeals (“BIA”) denying his claims for asylum and withholding of removal, but we deny his petition insofar as it challenges the BIA’s ruling rejecting his CAT claim.”

[Hats off to J. Christopher Llinas!]

pastedGraphic_2.png

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

  • Congrats to all involved!
  • Think how much better this system would function with expert  judges who treated asylum applicants fairly from the “git go,” granted protection wherever possible in accordance with the the Refugee Act of 1980 and the (more “woke”) Supremes’ precedent in Cardoza-Fonseca, provided clear, positive guidance on how valid claims could be documented and granted, and promoted and consistently applied best practices to achieve efficiency with maximum due process.
  • At first glance, although the issue is reopening rather than a continuance, E.A.C.A. undercuts McHenry’s nativist, insanely wasteful, and totally dishonest attempt to “raise the bar” for routine continuances for asylum applicants who need time to properly document and prepare their cases.
  • The “Deny – Deny Program” — deny due process, deny relief — that infects EOIR’s “Star Chambers” (impersonating “courts”) is a huge backlog builder that kills people and screws up Court of Appeals dockets in the process. 
  • Reopening cases that should be reopened, getting to the merits, and getting the many properly grantable asylum cases represented, documented, and prioritized would be a huge step in reducing EOIR’s largely self-created and unnecessary “bogus backlog.” 
  • Ultimately, many of the clearly grantable asylum cases being mishandled and wrongly denied at EOIR, at great waste of time and resources, not to mention unnecessary human trauma, could, with real expert judges at EOIR setting and consistently enforcing the precedents, be granted more efficiently and expeditiously at the Asylum Office and ultimately shifted to a more robust and properly run Refugee Program.
  • In the longer run, once EOIR is redesigned and rebuilt as a proper court with real, independent, expert judges, it might be appropriate to place the Asylum Offices under judicial supervision, given the grotesque abuses and corrupt, perhaps criminal, mismanagement of the Asylum Offices by USCIS toadies carrying out the regime’s racist, White Nationalist, unconstitutional agenda of hate and waste.
  • NOTE TO JUDGE GARLAND👨🏻‍⚖️: Please fix the EOIR mess, Your Honor, before it brings you and the entire US justice system crashing down with it! This is a national emergency, and a damaging national disgrace, NOT a “back burner” issue!

Here’s some additional E.A.C.A. analysis by my good friend and NDPA “warrior queen” 👸🏽Michelle Mendez @ CLINIC!

Michelle Mendez
Michelle Mendez
Defending Vulnerable Populations Director
Catholic Legal Immigration Network, Inc. (“CLINIC”)

Subject: CLINIC MTR In Absentia Win at the CA6 on behalf of SIJS-Seeking UC (E. A. C. A. v. Jeffrey Rosen)

 

Greetings,

 

Sharing this win, E. A. C. A. v. Jeffrey Rosen, out of the CA6 by my amazing colleague Rachel Naggar who manages our BIA Pro Bono Project. This was an appeal of an IJ (Memphis) denial of an in absentia motion to reopen for a 13-year old unaccompanied child.

 

Interestingly, after oral argument, OIL filed a motion to remand the case (which Rachel opposed) and the CA6 denied that motion. Seems the CA6 really wanted to issue a decision on the merits and we are grateful for the decision. Here are some highlights from the decision:

 

SIJS

·       “Notably, the IJ’s decision does not mention E.A.’s claims that she was eligible for SIJS.”

·       FN 1: “As of the December 2020 Visa Bulletin, visas are available for special immigrants (category EB4) from El Salvador to adjust their status if their priority date is prior to February 2018. If DHS removes E.A. prior to approving her visa, she will be unable to apply for adjustment of status. See 8 U.S.C. § 1101(a)(27)(J).”

 

Totality of the Circumstances

·       “Based on the totality of the circumstances, including E.A. mother’s recent childbirth, E.A.’s young age, E.A.’s mother’s failed attempts to obtain counsel to help change the address of E.A.’s hearing, and E.A.’s inability to travel from New York to Memphis for the hearing, we hold that E.A. established exceptional circumstances.”

·       “Under the totality of the circumstances, E.A.’s young age is an important factor in determining whether exceptional circumstances exist.”

 

Exceptional Circumstances

·       “E.A.’s mother’s recent childbirth is a serious medical condition that supports reopening. The statute defining ‘exceptional circumstances’ that justify reopening an immigration proceeding lists the ‘serious illness of the alien, or serious illness or death of the spouse, child, or parent of the alien’ as an example. 8 U.S.C. § 1229a(e)(1). Childbirth is a serious medical event that necessitates a recovery period.”

·       “Instead of recognizing that childbirth is a serious medical condition, the BIA minimized the seriousness of childbirth and its impact on E.A.’s mother’s ability to bring E.A. to Memphis. […] Recovery from childbirth is exactly the type of circumstance that § 1229a(e)(1) was intended to cover.”

 

Prima Facie Eligibility

·       “Finally, the BIA erred by stating that E.A. was required to prove prima facie eligibility for immigration relief. The BIA’s decision improperly states that E.A. is required to show at this stage prima facie eligibility for relief. The statute governing motions to reopen removal orders entered in absentia provides that the petitioner must ‘demonstrate[] that the failure to appear was because of exceptional circumstances.’ 8 U.S.C. § 1229a(b)(5)(C). In general, we have stated that ‘[a] prima facie showing of eligibility for relief is required in motions to reopen.’ Alizoti, 477 F.3d at 451–52. In the case of a motion to rescind a removal order entered in absentia, however, the BIA has held that ‘an alien is not required to show prejudice in order to rescind an order of deportation” or removal. In re Grijalva-Barrera, 21 I. & N. Dec. 472, 473 n.2 (BIA 1996); see also In re Rivera-Claros, 21 I. & N. Dec. 599, 603 n.1 (BIA 1996). This is consistent with the statute governing motions to rescind removal orders entered in absentia, 8 U.S.C. § 1229a(b)(5)(C), which does not list a showing of prima facie eligibility for relief from removal as a requirement to rescind in absentia removal orders. Rivera-Claros, 21 I. & N. Dec. at 603 n.1; see also Galvez-Vergara v. Gonzales, 484 F.3d 798, 803 n.6 (5th Cir. 2007) (declining ‘to affirm the IJ’s decision on the grounds that [the petitioner] has not shown that he was prejudiced by his counsel’s performance’ because ‘In re Grijalva-Barrera, 21 I. & N. Dec. at 473 n.2, provides that an alien need not demonstrate prejudice for his counsel’s erroneous advice to constitute an ‘exceptional circumstance’ justifying rescission of an in absentia removal order’); Lo v. Ashcroft, 341 F.3d 934, 939 n.6 (9th Cir. 2003) (‘follow[ing] the BIA’s usual practice of not requiring a showing of prejudice’ to rescind an in absentia order of removal). We now join our sister circuits and hold that E.A. is not required to make a prima facie showing of eligibility for relief in order to obtain rescission under 8 U.S.C. § 1229a(b)(5) of the in absentia order of removal.”

 

Thanks to our entire Defending Vulnerable Populations team for supporting Rachel on the briefing, oral argument, and negotiations with OIL.

 

Gratefully,

 

Michelle N. Mendez | she/her/ella/elle

Director, Defending Vulnerable Populations Program

Catholic Legal Immigration Network, Inc. (CLINIC)

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

In addition to the “normal” overall White Nationalist, racist agenda that EOIR “management” has carried out under the defeated regime, there was a good deal of misogyny 🤮 involved in the BIA’s gross mishandling of the “pregnancy issue,” as described by the Sixth Circuit. This misogynistic trend can be traced back directly to the unconstitutional and unethical actions of mysogynist White Nationalist AG Jeff Sessions 🤮 🦹🏿‍♂️🤡in the “Matter of A-B- Abomination.” ☠️⚰️🏴‍☠️👎🏻

Biased, anti-migrant decision-making in support of bogus enforcement gimmicks and White Nationalist anti-democracy agendas builds backlogs and kills, maims, and tortures “real” people! Migrants are people and persons, not “threats” and “bogus statistics.” 

The “dehumanization” and “de-personification” of migrants, with the connivance of the tone-deaf and spineless GOP Supremes’ majority, is a serious, continuing threat to American democracy! It must stop! Justices who won’t treat migrants physically present in the U.S. or at our borders as “persons” under our Constitution — which they clearly are — do not belong on the Supremes! ⚖️🗽🇺🇸

I can also draw the lines connecting George Floyd, institutionalized racial injustice, voter suppression, riots at the Capitol, and the “Dred Scottification” of asylum seekers and other migrants by EOIR! 

HINT TO JUDGE GARLAND: Michelle Mendez would be an outstanding choice to lead the “clean up and rebuild” program at EOIR and the BIA once the “Clown Show” 🤡🦹🏿‍♂️ is removed!🪠🧹 Put experts with practical experience like Rachel Nagger and Christopher Linas onto the bench, on the BIA, the Immigration Courts, and the Article III Judiciary to get the American Justice system functioning again!

The “judicial selection system” for the Immigration Courts and the Article III Judiciary has failed American democracy — big time — over the past four years. Fixing it must be part of your legacy!

The folks who preserved due process and our Constitution in the face of tyranny are mostly “on the outside looking in.”  You need to get them “inside Government” — on the bench and in other key policy positions — and empower them to start cleaning up the ungodly mess left by four years of regime kakistocracy🤮☠️🤡⚰️👎🏻.  “Same old, same old” (sadly, a tradition of Dem Administrations) won’t get the job done, now any more than it has in the past! New faces for a new start!

And, it starts with better judges @ EOIR, which is entirely under YOUR control! An EOIR that actually fulfills its noble, one-time vision of “Through teamwork and innovation being the world’s best tribunals guaranteeing fairness and due process for all” will be a model for fixing our failing Federal Courts  —  all the way up to the leaderless and complicit Supremes who failed, particularly in immigration, human rights, voting rights, and racial justice, to effectively and courageously stand up to the Trump-Miller White Nationalist agenda of hate and tyranny!

We are where we are today as a nation, to a large extent, because of the Supremes’ majority’s gross mishandling of the “Muslim Ban” cases which set a sorry standard for complicity and total lack of accountability for unconstitutional actions, racism, dishonesty, cowardly official bullying, and abandonment of ethics by the Executive that has brought our nation to the precipice! Life tenure was actually supposed to protect us from judges who wouldn’t protect our individual rights. In this case, it hasn’t gotten the job done! Better judges for a better America!

🇺🇸⚖️🗽👍🏼Due Process Forever! The EOIR Clown Show🤡🦹🏿‍♂️ ☠️⚰️Never!

PWS

01-13-21

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1ST CIR. — EOIR’S SCOFFLAW “HASTE MAKES WASTE” DENIALS OF COUNSEL UNDER BARR WILL BUILD BACKLOG  — Hernandez-Lara v. Barr

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

Dan Kowalski reports for Lexis Nexis Immigration Community:

CA1 on Right to Counsel: Hernandez Lara v. Barr

Hernandez Lara v. Barr

“Hernandez petitions for review on multiple grounds, but we need decide only one. Concluding that the IJ denied Hernandez her statutory right to be represented by the counsel of her choice, we grant the petition, vacate the BIA’s decision, and remand for further proceedings consistent with this decision.”

[Hats way off to Sang Yeob Kim and Eloa J. Celedon, with whom Harvey Kaplan, Gilles Bissonnette, Henry Klementowicz, the American Civil Liberties Union of New Hampshire, and Celedon Law were on brief, for petitioner; Deirdre M. Giblin, Iris Gomez, and Massachusetts Law Reform Institute on brief for Massachusetts Law Reform Institute, American Immigration Lawyers Association New England Chapter, Boston College Law School Immigration Clinic, Boston University Immigrants’ Rights and Human Trafficking Program, Catholic Charities of the Archdiocese of Boston, Catholic Social Services of Fall River, Central West Justice Center, DeNovo Center for Justice and Healing, Greater Boston Legal Services, Immigrant Legal Advocacy Project, Justice Center of Southeast Massachusetts, MetroWest Legal Services, The Northeast Justice Center, Political Asylum/Immigration Representation Project, and University of Massachusetts Dartmouth Immigration Law Clinic, amici curiae!]

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

Read the full decision and you will see how under Barr’s White Nationalist “leadership,” the EOIR ignores not only constitutionally required due process, the statutory right to counsel, but also prior BIA precedent to screw (largely Latino) asylum seekers. The First Circuit recognizes the correct standards. But, I’ll wager they aren’t being applied in most of the unrepresented cases now being railroaded through the Immigration Courts. Nobody in charge is doing anything to stop the systemic, invidiously racially motivated unfairness.

We’re still a long way from enforcing the Constitution and eliminating unconstitutional racism, including specifically the Government’s vile attacks on Latino and other asylum applicants. 

While thankfully Chief Justice Roberts saved lives and futures today, he and seven of his colleagues also ignored the facts to endorse the Trump regime’s institutional racism targeting Latinos with various assaults on immigration laws, due process, and human decency. His protestations to the contrary as he and his colleagues brushed off the obvious Equal Protection violations that would have been proved fail the “straight face test.”  https://slate.com/news-and-politics/2020/06/john-roberts-daca-racist-policies-equal-protection.html.

Indeed, that Roberts found that the Administration acted without rational explanations as required by the APA in and of itself basically shows that there were “other motivations” for the actions. I’m not sure the “prime movers” behind the “Screw Dreamers” policy even know what the APA is. Sessions’s “legal analysis” that was nothing of the sort — as observed by some lower courts — could have been written by a sixth grader.

Sadly, only Justice Sonia Sotomayor had the intellectual honesty and courage to speak truth on the continuing racism of Trump and the GOP and how it is being enabled by her colleagues on the Supremes.

Whatever progress members of the the public might think they are making on achieving racial justice isn’t reflected in the continuing insultingly intellectually dishonest actions of many of those who lead and control our Government. They obviously believe that with a few cosmetic (at best) changes this moment will pass, as have other efforts to make the Constitution a reality for all in America.

Then they can resume the same abuses and disingenuous claims that institutional racism no longer exists in a system where it is deeply and intentionally ingrained. But, the folks who are victimized by it might continue to differ with this bogus view. Since, as we have recently learned, they are often the ones who have and continue to prop up our society, that’s going to be a long-term problem for future generations.

We’ll never get to equality without regime change. Nor will be get to a better Federal Judiciary who will make the Constitutional guarantee of elimination of racial injustice a priority and a reality without an Executive, a Senate, and more judges who really believe in it. Until then, those who believe in racial justice will have to continue the battle in the trenches. Denial of the reality of racism in America won’t change it, no matter what the majority of the Supremes might claim to think.

Due Process Forever!

PWS

06-18-20 

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1ST CIR. THWARTS BIA’S ATTEMPT TO USE “SUA SPONTE” AUTHORITY TO COVER UP ARBITRARINESS, BIAS, & CLEAR LEGAL ERROR! — Thompson v. Barr

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

 

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/ca1-on-pardons-thompson-v-barr

Dan Kowalski reports on LexisNexis Immigration Community:

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Daniel M. Kowalski

22 May 2020

CA1 on Pardons: Thompson v. Barr

Thompson v. Barr

“Petitioner Richard Marvin Thompson (“Thompson”) appeals the Board of Immigration Appeals’ (“BIA”) denial of his motion to reopen sua sponte his immigration proceedings, alleging that the BIA committed a clear legal error. Thompson asks this Court to exercise jurisdiction to review whether the BIA clearly erred when it determined that he was not entitled to relief from deportation under section 237(a)(2)(A)(vi) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1227(a)(2) (A)(vi) (the “Pardon Waiver Clause”), because a pardon issued by the Connecticut Board of Pardons and Paroles is “not effective for purposes of establishing entitlement to” a waiver of deportation. Because we find that this Court has jurisdiction to review this colorable legal question and because, here, the BIA departed from its settled course of adjudication, we vacate the decision of the BIA and remand for further proceedings consistent with this opinion.”

[Hats off to Gregory Romanovsky, William M. Tong, Attorney General of Connecticut, Jane Rosenberg, Assistant Attorney General, Clare Kindall, Solicitor General, amicus curiae for the State of Connecticut, Trina Realmuto, Kristin Macleod-Ball and Emma Winger!]

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

So, let’s take a little closer look. Thompson immigrated legally to the U.S. in 1997, at age 14. Nearly two decades ago, Thompson was convicted of second degree assault in Connecticut and given a suspended sentence and 3-years probation. In other words, no jail time. 

He successfully completed probation, got a GED, and worked as a commercial operator for 10 years. Essentially, Thompson successfully rehabilitated and became a productive member of society. 

In 2012, the Obama Administration DHS, in its wisdom, instituted removal proceedings against Thompson based on his 2001 Connecticut assault conviction. After being found removable and losing on appeal, Thompson received a full and complete pardon from the Connecticut State Board of Pardons, the highest pardoning authority in the state. Although established by the legislature, the Board of Pardons’ action was deliberative and based on an assessment of the factors in Thompson’s individual case. It was not an “automatic expungement” pursuant to legislation.

Since the time for filing a motion to reopen had expired, Thompson asked the BIA to reopen his case “sua sponte” — on its own motion — to recognize that the pardon had eradicated the legal basis for removal.

Following its previous rulings, as well as sound policy and common sense, the BIA should promptly have granted Thompson’s motion and terminated proceedings in a two or three sentence order. Instead, the BIA, now operating under the “Trump removal regime in 2018,” denied the motion based on specious reasons that deviated without rational explanation from their prior treatment of substantially identical motions. 

The BIA’s action touched off approximately 20 months of furious litigation involving a small army of lawyers on both sides, including the Connecticut Attorney General and the Connecticut Solicitor General, as well as the American Immigration Council, filing briefs in support of Thompson.

Following this 34-page opus by the First Circuit, Thompson’s case is by no means over. It’s been “orbited” back to the “Weird World of EOIR” where Thompson might, or might not, receive justice at some undetermined point in the future. To make matters even worse, Thompson remains detained at the Etowah County Detention Center in Gadsden, Alabama. Alabama is one of the current “hot spots” for COVID-19.

Is it any wonder that a “weaponized,” overtly anti-immigrant “court system” that looks for “reasons to deny” meritorious cases, rather than promoting prompt and efficient due process in deserving cases is running a backlog of approximately 1.4 million “on and off calendar” cases?

The longer the reviewing Circuit Courts keep up the fiction of treating EOIR as a legitimate adjudicative organization rather than the biased, “non-expert,” unconstitutional extension of DHS Enforcement that it has become, the bigger the mess will get and the more injustice that will be done to individuals like Thompson.  

Meanwhile, legions of lawyers and judges at all levels, who could and should be devoting their talents to operating a constitutional immigration justice system that provides “due process and fundamental fairness with efficiency and humanity for all concerned” will instead continue to flail as a result of this “designed and operated to fail” system run by a kakistocracy to produce injustice and to squander judicial time and legal resources on a massive scale. When will it ever end?

Due Process Forever!

PWS

05-24-20

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1ST CIR. BOPS BIA’S BOILERPLATE DENIAL OF DOCUMENTED WITHHOLDING CLAIM – AGUILAR-ESCOTO V. SESSIONS!

1stCirAsy:WH16-1090P-01A

Aguilar-Escoto v. Sessions, 1st Cir., 10-27-17, published

PANEL: Howard, Chief Judge,Thompson and Kayatta, Circuit Judges.

OPINION BY: Chief Judge Howard

KEY QUOTE:

“We review the BIA’s legal conclusions de novo and its findings of fact under the “substantial evidence” standard, meaning that we will not disturb such findings if they are “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Xin Qiang Liu v. Lynch, 802 F.3d 69, 74 (1st Cir. 2015) (citation omitted). In our review of the record, we note that while the BIA need not “discuss every piece of evidence offered,” it is “required to consider all

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relevant evidence in the record.” Lin v. Mukasey, 521 F.3d 22, 28 (1st Cir. 2008) (emphasis added). Consistent with this obligation, the Eleventh Circuit has specifically held that “an adverse credibility determination does not alleviate the BIA’s duty to consider other evidence produced by” an applicant for relief. Hong Chen v. U.S. Att’y Gen., 231 F. App’x 900, 902 (11th Cir. 2007) (citing Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1287 (11th Cir. 2005)). Rather, where the applicant provides evidence other than her own testimony, the agency “must consider that evidence” and may not “rely solely on an adverse credibility determination.” Forgue, 401 F.3d at 1287. According to the Eleventh Circuit, the agency’s failure to fulfill this duty is grounds for vacating the BIA decision, irrespective of the merits of the adverse credibility finding. See Toska v. U.S. Att’y Gen., 194 F. App’x 767, 768 (11th Cir. 2006); see also Khattak v. Holder, 704 F.3d 197, 208 (1st Cir. 2013) (“[W]e will remand if the agency fails to state with sufficient particularity and clarity the reasons for denial of [relief] or otherwise to offer legally sufficient reasons for its decision.” (citation omitted)).

We agree with the Eleventh Circuit’s approach to this issue, which is consistent with our precedent. See Rasiah v. Holder, 589 F.3d 1, 6 (1st Cir. 2009) (“An adverse credibility finding by itself would not automatically doom a claim for asylum.”). The appropriate result in this case follows easily.

-6-

Even assuming that its credibility ruling was supportable, the BIA was required to go further and address whether, setting Aguilar’s testimony to one side, the documentary evidence entitled her to relief. See Lin, 521 F.3d at 28; Forgue, 401 F.3d at 1287. Indeed, the IJ expressly recognized that this documentary evidence, if believed, was sufficient to establish multiple acts of domestic violence against Aguilar by her ex-husband. In these circumstances, the BIA’s failure to consider or even acknowledge the evidence requires remand. See Toska, 194 F. App’x at 768; Khattak, 704 F.3d at 208. We take no position on the merits of the IJ’s holding that the abuse reflected in the documentary evidence was not sufficiently severe to warrant relief. This issue is best left to be addressed by the BIA in the first instance.

We note, for the benefit of the agency on remand, that the Board’s failure to consider Aguilar’s documentary evidence may have been rooted in its fundamental misunderstanding of her claim. Again, the Board appears to have operated under the mistaken assumption that Aguilar had applied for asylum as well as withholding of removal. These two grounds for relief are not identical. For one thing, withholding of removal requires a higher likelihood of persecution than asylum. See Romilus v. Ashcroft, 385 F.3d 1, 8 (1st Cir. 2004) (noting that applicants for withholding must satisfy a “more likely than not” standard (citation omitted)). There is, however, a different sense in which

-7-

the asylum standard may be more exacting. Withholding claims “lack a subjective component and are [thus] concerned only with objective evidence of future persecution.” Paul v. Gonzales, 444 F.3d 148, 155-56 (2d Cir. 2006); see also INS v. Cardoza-Fonseca, 480 U.S. 421, 430 (1987) (explaining that the relevant statutory language “has no subjective component”). Asylum, by contrast, has both a subjective and an objective component: it requires a showing that the applicant “genuinely fears persecution,” in addition to proof that the “fear is objectively reasonable.” Makhoul v. Ashcroft, 387 F.3d 75, 80 (1st Cir. 2004). Applicants “typically” seek to establish the requisite “genuineness” through their “own credible testimony.” Id. at 80-81. An adverse credibility finding thus may prove fatal to this aspect of an asylum claim. But, because withholding of removal requires no such genuine belief, a withholding claim “may, in appropriate instances, be sustained” despite an adverse credibility finding. Paul, 444 F.3d at 156.

In the present case, the BIA may well have been justified in concluding that, absent her own credible testimony, Aguilar failed to establish a subjectively genuine fear that she would be persecuted upon returning to Honduras. This failure would doom an asylum claim notwithstanding additional evidence establishing that a reasonable person in Aguilar’s circumstances would have feared persecution. See Makhoul, 387 F.3d at 80-81. But, in the withholding context, the inquiry is a strictly objective one. See

-8-

Cardoza-Fonseca, 480 U.S. at 430-31. Thus, even after discrediting Aguilar’s testimony, arguably the only evidence that she did in fact harbor a subjective fear of persecution, the BIA was nonetheless obliged to consider documentary evidence potentially capable of establishing her likelihood of suffering further abuse.

Rather than embarking on this objective assessment, the BIA fell back on the familiar refrain that, because “the applicant did not establish eligibility for asylum, it follows that she cannot establish eligibility for withholding of removal, which has a higher burden of proof.” Such a conclusion is unassailable where the applicant’s subjective fear is proven or assumed, and the denial of the asylum claim turns on the lack of evidence that the fear was objectively reasonable. See, e.g., Makhoul, 387 F.3d at 81. But the same is not necessarily true where an asylum claim fails due to a lack of credible testimony establishing the applicant’s subjective fear. The Board’s failure to apply the appropriate, purely objective standard to Aguilar’s withholding claim provides an independent basis for remand. See Kozak v. Gonzáles, 502 F.3d 34, 38 (1st Cir. 2007) (remanding because “the BIA applied an inappropriate legal standard”); Castañeda-Castillo v. Gonzales, 488 F.3d 17, 22 (1st Cir. 2007) (remanding “to allow the matter to be considered anew under the proper legal standards”).

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III.
For the foregoing reasons, we VACATE the BIA’s order

dismissing Aguilar’s appeal and remand for further proceedings consistent with this opinion.”

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

You can read the complete opinion at the link

This type of reversal does not involve a “Chevron-type” legal policy issue where the BIA and the Article IIIs might well reach different conclusions. Rather, this case is all about the BIA misapplying the “fundamental nuts and bolts” of credibility and withholding analysis in putting out a “boilerplate denial.” Why should the Article IIIs be finding “mechanical-analytical” issues that the expert BIA missed? Perhaps the EOIR system is “peddling too fast.” In that case, Sessions’s proposed “production quotas for judges” are the absolute worst thing that could happen to the Immigration Courts and Due Process.

Also, if the Article IIIs are better than the BIA at the basics of immigration and asylum law, why shouldn’t the Article IIIs, not the BIA, be getting “Chevron deference?”

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