🤯 MISFIRES: MORE MIXED MOTIVE MISTAKES BY BIA — “Expert” Tribunal Continues Underperforming In Life Or Death Asylum Cases! — Sebastian-Sebastian v. Garland (6th Cir.) — Biden Administration’s “Solution” To Systemic Undergranting Of Asylum & Resulting EOIR Backlogs: Throw Victims Of “Unduly Restrictive Adjudication” Under The Bus! 🚌🤮

Four Horsemen
BIA Asylum Panel In Action — After three years of ignoring experts on how to fix asylum and the border, the Biden Administration appears ready to join GOP nativists in throwing vulnerable legal asylum seekers and their supporters “under the bus.”  Cartels and criminal smugglers undoubtedly are looking forward to “filling the gap” left by the demise of the legal asylum system! They will be “the only game in town’” for those seeking life-saving refuge! There is no record of increased cruelty and suspension of the rule of law “solving” migration flows, although an increase in exploitation and death of migrants seems inevitable. Perhaps, that’s just “collateral damage” to U.S. politicos.
Albrecht Dürer, Public domain, via Wikimedia Commons

 

Dan Kowalski reports for LexisNexis Immigration Community:

https://www.opn.ca6.uscourts.gov/opinions.pdf/23a0267p-06.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca6-on-mixed-motive-sebastian-sebastian-v-garland

[T]he Board found that Sebastian-Sebastian failed to demonstrate a nexus between her particular social groups and the harm she faced. In its denial of CAT protection, the Board found that Sebastian-Sebastian failed to demonstrate that she is more likely than not to be tortured if removed to Guatemala. On appeal, Sebastian-Sebastian argues that the Board’s conclusions were not supported by substantial evidence on the record as a whole. Because the Board’s failure to make necessary findings as to the asylum and withholding of removal claims is erroneous, but its conclusion as to Sebastian-Sebastian’s CAT claim is supported by substantial evidence, we GRANT Sebastian-Sebastian’s petition for review in part, DENY in part, VACATE the Board’s denial of her application for asylum and withholding of removal, and REMAND to the Board for reconsideration consistent with our opinion.”

[Hats off to Jaime B. Naini and Ashley Robinson!  N.B., the motion for stay of removal was denied.  I have a call in to the attorneys to find out if she was removed…]

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Ashley Robinson ESQ
Ashley Robinson ESQ

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

cell/text/Signal (512) 826-0323

@dkbib on Twitter

dan@cenizo.com

Free Daily Blog: www.bibdaily.com

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Congrats to Jaime and Ashley!

Rather than looking for ways to restrict or eliminate asylum, Congress and the Administration should be concerned about quality-control and expertise reforms in asylum adjudication, including a long-overdue independent Article I Immigration Court! Once again, the BIA violates Circuit precedent to deny asylum.

The answer to systemically unfair, (intentionally) unduly restrictive interpretations, and often illegal treatment of asylum seekers by the USG should not be to further punish asylum seekers! It should be fixing the asylum adjudication system to comply with due process, fundamental fairness, best practices, and professionalism!

Casey Carter Swegman
Casey Carter Swegman
Director of Public Policy at the Tahirih Justice Center
PHOTO: Tahirih Justice Center

Here’s a statement from the Tahirih Justice Center about the disgraceful “negotiations” now taking place in Congress:

The Tahirih Justice Center is outraged by the news that the administration appears willing to play politics with human lives. These attacks on immigrants and people seeking asylum represent not simply a broken promise, but a betrayal and we urge the President and Congress to reverse course.

“I am gravely concerned that, if passed, these policies will further trap and endanger immigrant survivors of gender-based violence.  Selling out asylum seekers and immigrant communities under the guise of ‘border security’ in order to pass a supplemental funding package is absolutely unacceptable,” said Casey Carter Swegman, Director of Public Policy at the Tahirih Justice Center. “And we know the impact of these cruel, deterrence-based policies will land disproportionately on already marginalized immigrants of color. I urge the White House and Congress not to sell out immigrants and asylum seekers for a funding deal.”

Every day, people fleeing persecution – including survivors of gender-based violence – arrive at our border having escaped unspeakable violence. Raising the fear standard, enacting a travel ban, putting a cap on asylum seekers, and expanding expedited removal nationwide (to name just a few proposals that have been floated in recent days) will do nothing to solve the challenges at the southern border and serve only to create more confusion, narrow pathways to humanitarian relief, increase the risk of revictimization and suffering, and punish immigrants seeking safety and a life of dignity.

These kinds of proposals double down on the climate of fear that many immigrants in this country already face on a day-to-day basis and will disproportionately impact Black, Brown and Indigenous immigrant communities.Immigrants should not be met with hostile and unmanageable policies that violate their humanity as well as their legal rights. We can and must do better.

These are “negotiations” in which those whose legal rights and humanity are being “compromised” (that is, tossed away) have no voice at the table as politicos ponder what will best suit their own interests.

😎Due Process Forever!

PWS

12-12-23

🍂FALL FOLLIES: BIA FUMBLES BASIC STANDARDS FOR FUTURE FEAR AND INTERNAL RELOCATION, SAYS 6TH CIRCUIT — Lin v. Garland

Dan Kowalski reports for LexisNexis Immigration Community:

https://www.opn.ca6.uscourts.gov/opinions.pdf/23a0205p-06.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca6-on-future-fear-internal-relocation-lin-v-garland

“The question before us is whether the BIA’s determinations are supported by substantial evidence. As will be explained below, the BIA’s rationale does not allow us to make that determination. So we grant Lin’s petition and remand for further proceedings. … It is difficult to imagine that a reasonable person in Lin’s position, under the circumstances demonstrated in the record, would feel safe returning home. The determination that Lin failed to show a reasonable likelihood of individualized persecution in China is contravened by the record and compels us to conclude otherwise. … [H]ere, where we are left with no indication that the BIA undertook the appropriate inquiry and significant indications that it likely did not, remand for full consideration is proper.”

[Hats off to Henry Zhang!]

 

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

cell/text/Signal (512) 826-0323

@dkbib on Twitter

dan@cenizo.com

Free Daily Blog: www.bibdaily.com

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PWS: “Another “Big Whiff” by the BIA! Sounds like assembly line denials to me!”

HON. “SIR JEFFREY” CHASE: “Whether a reasonable person returning home would feel safe – the correct standard cited by the circuit, is rarely if ever applied by the current BIA. I would really love to see the IJ training material on this standard.”

This is life or death folks! Why isn’t getting it right at the “retail level” an urgent mission for the Government?

🇺🇸 Due Process Forever!

PWS

09-13-23

⚖️ SPLIT 6th CR. WHACKS BIA ON LANDOWNERS AS PSG! — Turcios-Flores v. Garland

Four Horsemen
BIA Asylum Panel In Action. Garland’s largely “holdover” BIA continues to align itself with Trump’s extreme right, nativist judges, as the progressives and advocates who actually supported Dems in the last two elections are left to stew, along with their dehumanized asylum seeking clients.
Albrecht Dürer, Public domain, via Wikimedia Commons

Dan Kowalski reports for LexisNexis Immigration Community:

CA6 on PSG: Turcios-Flores v. Garland (2-1)

https://www.opn.ca6.uscourts.gov/opinions.pdf/23a0094p-06.pdf

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca6-on-psg-turcios-flores-v-garland-2-1#

“Under the correct analysis, the record here compels a conclusion that Honduran rural landownership in this case is a common fundamental characteristic because Turcios-Flores should not be required to change this aspect of her identity to avoid persecution given the demonstrated importance of landownership to her. Therefore, we remand to the Board for further explanation of whether this group meets the social distinction and particularity requirements as well as the remaining asylum considerations.”

[Hats off to Justin S. Fowles and Samuel W. Wardle!]

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To reach their wrong  conclusion that “rural landowners” are not a “particular social group,” the BIA ignored its own precedent. See, e.g., Matter of Acosta, 19 I&N Dec. 211, 233 (BIA 1985), modified on other grounds. 

The BIA also took an (all too typical) “ahistorical” approach. They ignored the powerful connection between various types of land and property ownership in society and classic historical examples of extermination and persecution. Indeed, millions of dead kulaks persecuted and liquidated by Stalin would be astounded by the BIA’s horribly flawed, “any reason to deny,” analysis. See, e.g., https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwiTv6qnsun-AhWARzABHW3rACUQFnoECC4QAQ&url=https://www.historyplace.com/worldhistory/genocide/stalin.htm&usg=AOvVaw0xlIU36bw6-wmabscwSXT5.

Class warfare and persecution of property owners was at the heart of most Marxist-Leninist Communist dictatorships. 

Remarkably, under Garland, the BIA continues to parrot the same biased, restrictionist nonsense spouted by the Trumpist dissenter in this case, Judge Chad A. Readler. He was roundly criticized as unqualified by Democrats and advocates at the time of his nomination. This opposition had lots to do with his biased, anti-immigrant views flowing from his then “boss,” nativist/racist former AG Jeff “Gonzo Apocalypto” Sessions!

For example, it’s worth reviewing the comments of the Alliance for Justice on Reacher’s nomination:

On June 7, 2018, President Trump announced his intention to nominate a Justice Department official, Chad Readler, to the Sixth Circuit Court of Appeals. This announcement was particularly striking for one notable reason: on that very day, Readler had become a leader in the Trump Administration’s fight to destroy the Affordable Care Act and the protections it offers to millions of Americans. Readler, as acting head of the Civil Division, filed a brief to strike down the ACA, including its protections for people with preexisting conditions. If Readler and the Trump Justice Department are successful, the ACA’s protections for tens of millions of people, including cancer patients, people with diabetes, pregnant women, and many other Americans, would be removed.

As the acting head of the Department of Justice Civil Division under Attorney General Jeff Sessions, Readler defended the Trump Administration’s most odious policies, including separating immigrant children from their parents at the border, while claiming that “[e]verything that the Attorney General does that I’ve been involved with he’s . . . being very respectful of precedent and the text of the statute and proper role of agencies.”

His track record is equally atrocious in other respects. He has tried to undermine public education in Ohio; supported the efforts of Betsy DeVos to protect fraudulent for-profit schools; fought to make it harder for persons of color to vote; advanced the Trump Administration’s anti-LGBTQ and anti-reproductive rights agenda; fought to allow tobacco companies to advertise to children, including outside day care centers; sought to undermine the independence of the Consumer Financial Protection Bureau; and advocated for executing minors.

Chad Readler’s record of diehard advocacy for right-wing causes suggests he will be anything but an independent, fair-minded jurist. Alliance for Justice strongly opposes Readler’s confirmation.

https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwjp353GtOn-AhWnjLAFHRjxAKYQFnoECCMQAQ&url=https://www.afj.org/nominee/chad-readler/&usg=AOvVaw1vd0ZxlEMALaM-lfJNn6bq

It’s remarkable and infuriating that once in office, Democrats in the Biden Administration have aligned themselves with the toxic views of extreme, nativist right wing judges whose xenophobic, atrocious views they campaigned against! They have done this in a huge “life or death” Federal Court system that they completely control and have authority to reform without legislation!

🇺🇸 Due Process Forever!

PWS

05-10-23

 

⚖️FINALLY, 6TH CIRCUIT JUDGES WHO UNDERSTAND PD BLOW AWAY TRUMP USDJ’S TOTALLY UNWARRANTED PI AGAINST THE “MAYORKAS MEMO!” 

 

Dan Kowalski reports for LexisNexis Immigration Community:

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca6-reverses-enforcement-memo-injunction-arizona-v-biden

CA6 Reverses Enforcement Memo Injunction: Arizona v. Biden

Arizona v. Biden

“In September 2021, the Secretary of Homeland Security issued a memorandum to his deputies outlining the Department’s immigration enforcement priorities and policies. Arizona, Montana, and Ohio filed this lawsuit in the Southern District of Ohio to enjoin its implementation. The district court issued a “nationwide preliminary injunction,” applicable to all 50 States, blocking the Department from relying on the priorities and policies in the memorandum in making certain arrest, detention, and removal decisions. Our court granted the National Government’s request for a stay pending appeal and ordered expedited briefing and argument. We now reverse the district court’s grant of preliminary injunctive relief.”

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Great news! Finally, Federal Judges who understand PD and reject the White Nationalist BS and mythical (basically fabricated) “injuries” to states. Trump UDSDJs have been an almost unmitigated disaster (surprise). In this case, it was Trump appointee Judge John Michael Newman of the S.D. Ohio who let his righty ideology get in the way of settled law on the Executive’s authority to exercise prosecutorial discretion in immigration cases.

I highlighted the possibility of a long overdue positive intervention by the 6th Circuit, following oral argument, several weeks ago. https://wp.me/p8eeJm-7IH

Welcome as this decision is, it’s not going to have any immediate effect because: 1) the 6th Circuit had already stayed the PI pending appeal; 2) another out of control Trumpy USDJ in the SD Tex, Judge Drew B. Tipton, recently issued a totally unjustified decision purporting to “vacate”  the “Mayorkas Memo” nationwide. 

Nevertheless, there is some reason to hope that the compelling reasoning of this 6th Circuit decision along with the rationale of the Supremes’ recent decision in Texas v. Biden, rejecting a similar dilatory attempt by nativist state AGs to interfere with the Biden Administration’s termination of the abominable “Remain in Mexico” disgrace, will eventually end this frivolous litigation by GOP state AGs, aided and abetted by some Trump Federal Judges. See, e.g., https://wp.me/p8eeJm-7Lm

🇺🇸 Due Process Forever!

PWS

07-06-22

⚖️👩🏽‍⚖️JUDGING IN AMERICA: Will Appellate Judges On The 6th Cir. (Including a Bush II Appointee) Get Right What Trumpy Judge Drew Tipton Screwed Up? — Early Signs For Better Result On Mayorkas Memo Could Provide “Cautious Optimism” For Sending GOP States’ Frivolous Claims Packing!

https://www.courthousenews.com/biden-administration-defends-immigration-policy-before-sixth-circuit/

Biden administration defends immigration policy before Sixth Circuit

The federal government argued in defense of a policy instituted by President Biden that prioritizes the deportation of individuals deemed national security threats.

KEVIN KOENINGER / June 10, 2022/Courthouse News

CINCINNATI (CN) — Federal courts cannot impose nationwide injunctions to counteract guidance handed down by the Department of Homeland Security regarding enforcement of federal immigration law, President Joe Biden’s administration argued Friday before an appeals court.

Prioritized deportation of illegal immigrants who “pose the greatest threats to national security, public safety, and border security” is within the scope of DHS’s authority and does not run counter to established immigration law, according to the administration, which was sued by several states after the guidance was implemented in September 2021.

Ohio, Arizona and Montana challenged the “balancing test” adopted as part the guidance, claiming the discretionary nature of the analysis of an immigrant’s mental health and criminal history exceeds the statutory authority granted to DHS and Immigration and Customs Enforcement, or ICE.

U.S. District Judge Michael Newman, a Donald Trump appointee, sided with the states and granted their motion for a preliminary injunction in March 2022, finding federal law “left no flexibility” when it comes to detainment of illegal immigrants during the removal process.

“The permanent guidance allows noncitizens to be released on removal-period and post-removal bond based on factors Congress did not intend DHS to consider and in contrast to DHS’s own regulations,” he said.

Shortly thereafter, a Sixth Circuit panel stayed the injunction pending the outcome of Biden’s appeal.

In its brief to the Cincinnati-based appeals court, the federal government criticized the outlandish nature of the lawsuit and cited Chief U.S. Circuit Judge Jeffrey Sutton when he argued courts have no authority to adjudicate federal immigration policy.

“For most of our nation’s history, a lawsuit like this one would have been unheard of: states did not sue the federal government based on the indirect, downstream effects of federal policies,” the brief states. “And district judges did not purport to enter nationwide injunctions, which ‘take the judicial power beyond its traditionally understood uses,’ ‘incentivize forum shopping,’ and ‘short-circuit’ the judicial process by forcing appellate courts to resolve complex disputes on short notice and without the benefit of percolation or full briefing.”

The Biden administration argued the states lack standing to sue and said Newman’s decision would set a precedent to “allow the federal courts to be drawn into all manner of generalized grievances at the behest of states seeking to secure by court order what they were unable to obtain through the political process.”

. . .

Chief U.S. Circuit Judge Jeffrey Sutton, a George W. Bush appointee, asked about the harm caused to the federal government if the appeals court allowed the injunction to remain in place.

“It certainly leads to confusion,” Tenny answered. “It leads to officers not being able to conduct their operations in a normal course.”

The attorney emphasized the guidance does not run counter to immigration law and requires officers to zero in on dangerous criminals because of the focus on individuals deemed threats to national security.

“It makes you start to think guidance just isn’t reviewable,” Sutton quipped.

Tenny agreed that most guidance is not. He said “there are circumstances … with guidance that requires people to do something where it could be reviewed,” but pointed out such a scenario is “worlds apart from here.”

 . . . .

Sutton pushed back against the idea of states challenging the federal government in this fashion, and said in the past, “most people would have laughed at the idea … of states coming in to challenge the guidance.”

“Let’s say you’re right,” the judge said. “I’m still trying to figure out what a victory looks like for you.”

“All that we want,” Flowers answered, “is what the district court did.”

Sutton expressed skepticism of immigration enforcement statistics cited by the states’ attorney and said he was “so dubious about relying on these numbers” because of the Covid-19 pandemic and other factors.

Flowers countered with evidence that ICE officials have gone on the record and claimed the drop in enforcement is based solely on compliance with the guidance.

“Their key theory,” Sutton said, “is that elections matter. That resonates to me when it’s very unclear what the courts could do [in this situation].”

In his rebuttal, Tenny argued no administration has ever fully enforced federal immigration law because there simply aren’t enough resources.

He also disputed the statistics cited by his opposing counsel.

“There is so much going on in the world here,” Tenny said. “To say changes in numbers is because of the guidance is extraordinary.”

U.S. Circuit Judges R. Guy Cole Jr. and Karen Moore, both Bill Clinton appointees, also sat on the panel.

Sutton said the court hopes to adhere to the three-month timeframe established at the outset of the appeal, which would set release of the panel’s opinion for early July.

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Read the complete report at the link.

Way too early for a “Due Process Victory Dance” 💃🏻 here. Oral argument is not always an accurate predictor of results. 

But, preliminary indications were that the 6th Cir. panel might have seen through the “disingenuous  smokescreen” being thrown up by GOP Nativist State AGs and Trumpster U.S. District Judge Michael Newman. The latter was overeager to inject himself into the legitimate efforts by Mayorkas to return some rationality, order, and fiscal prudence to ICE Enforcement that was reeling and discredited by the biases and uncontrolled excesses of the Trump era.

And, thankfully, Chief Judge Jeffrey Sutton also was skeptical about statistics cited by the States derived from DHS Enforcement. For example, so-called “apprehension statistics” from DHS are often distorted — in part because, as the result of the Title 42 travesty, CBP apprehended some of the same individuals over and over again without any formal determinations. 

Indeed, many of those “apprehended” merely sought  a legal determination of their right to asylum — something that both the Trump and Biden Administration have stubbornly and illegally denied to them. 

Folks who wrongfully are denied a chance to make a legal application for protection at the border and seek to turn themselves in to get some sort of review of their situation in a timely matter are not legitimate “apprehensions” nor do they pose any threat. Indeed, the threat to America here comes from lawless actions by DHS at the Southern Border, attempts by GOP-controlled States to substitute myths and nativism for legitimate policies, and overly permissive Federal Courts who have failed to put a stop to either of the foregoing abuses — indeed sometimes participating in and furthering the mocking of the rule of law and fundamental fairness! 

The statements made by Bush II appointee Chief Judge Sutton are actually in line with “traditional conservative judging” that consistently treated Executive exercises of prosecutorial discretion in immigration as beyond the scope of judicial review. In my days in INS General Counsel, we were extremely effective in defending the “hands off PD” position before Federal Judges of all philosophies.

That’s why the Garland DOJ’s failure to “wipe up the floor” with these baseless suits from out of line GOP AGs seeking to turn Federal litigation into a nativist political sideshow is so shocking to those of us who recognize how the system should, and has in the past, worked.

If the 6th Circuit does uphold the “Mayorkas Memo,” we might well be heading for a Circuit conflict. I doubt that the 5th Circuit will exercise meaningful review over Judge Tipton’s power grab in Texas. 

That could well leave it up to the Supremes — some time from now.

In the meantime, the ICE Enforcement system probably will continue to reel from the unwarranted interference inflicted by Trump Judges like Tipton, Newman, and some of their righty colleagues.

🇺🇸Due Process Forever!

PWS

06-13-22

 

 

⚖️👎🏽LATEST QUAD OF ARTICLE III “BODY SLAMS” SHOWS ENDEMIC PROBLEM OF ANTI-IMMIGRANT BIAS, UNPROFESSIONAL WORK PRODUCT @ GARLAND’S BIA — Wrong On: PSG, Failure Of State Protection, Internal Relocation, Nexus, Right To Counsel, Statutory Interpretation!

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

Dan Kowalski reports for LexisNexis Immigration Community:

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca6-on-psg-zometa-orellana-v-garland-unpub

CA6 on PSG: Zometa-Orellana v. Garland (Unpub.)

Zometa-Orellana v. Garland

“Ana Mercedes Zometa-Orellana, a native and citizen of El Salvador, suffered regular beatings and rape by her domestic partner. She sought asylum and withholding of removal based both on political opinion and membership in a particular social group. An immigration judge (IJ) denied asylum and withholding of removal, and the Board of Immigration Appeals (BIA) affirmed that ruling. Since then, however, a crucial case on which both the BIA and the IJ relied to assess Zometa-Orellana’s particular social group was vacated by the Attorney General. And the IJ and BIA failed to consider the entire record in determining the El Salvadorian Government’s willingness to respond and Zometa-Orellana’s ability to relocate in El Salvador. For these reasons, we GRANT the petition, VACATE the BIA’s decision, and REMAND for further proceedings in accordance with this opinion.”

[Hats off to Dr. Alicia Triche!]

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https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca4-on-nexus-aleman-medrano-v-garland-unpub

CA4 on Nexus: Aleman-Medrano v. Garland (Unpub.)

Aleman-Medrano v. Garland

“Aleman-Medrano’s central argument on appeal is that the agency [EOIR: the IJ and the BIA] erred at the second step of the analysis, improperly rejecting his claim that he was targeted by gang members “on account of” his family ties to his daughter. We agree and, finding no independent basis on which to affirm the agency’s denial of relief, remand for further proceedings. … [W]e are compelled to conclude that Aleman-Medrano’s relationship with his daughter was at least one central reason why he, and not someone else, was threatened by MS-13. … MS-13’s threats to Aleman-Medrano arose “on account of” his family ties and that he thus has met the nexus requirement for both asylum and withholding of removal.”

[Hats off to Abdoul A. Konare!]

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https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca9-2-1-on-right-to-counsel-usubakunov-v-garland

CA9 (2-1) on Right to Counsel: Usubakunov v. Garland

Usubakunov v. Garland

“This is not a case of a petitioner abusing the system or requesting serial delays of his merits hearing—Usubakunov had found an attorney willing to take his case. Although it may be tempting to look for a bright-line rule, we hew to our precedent that the “inquiry is fact-specific and thus varies from case to case.” Biwot, 403 F.3d at 1099. In doing so, we do not suggest that there is “no limit,” Dissent at 19, to the permissible delay for obtaining a lawyer. Our factspecific inquiry here leads us to conclude that the IJ’s refusal to grant a continuance violated Usubakunov’s right to counsel. … This case illustrates diligence, not bad faith, coupled with very difficult barriers faced by a detained applicant who does not speak English. Usubakunov sought and identified counsel within the period the IJ originally thought reasonable, but he was stymied by counsel’s scheduling conflict. He had identified by name and organization the lawyer who would ultimately represent him, and Usubakunov thus sought his first continuance of the merits hearing. We conclude that “[u]nder these circumstances, denial of a continuance was an abuse of discretion because it was tantamount to denial of counsel.” Biwot, 403 F.3d at 1100. Given these unique circumstances, our grant of the petition will not open the floodgates of continuances, as we apply the same fact-based inquiry we have done for years. That concludes our inquiry, as a petitioner who is wrongly denied assistance of counsel at his merits hearing need not show prejudice. See Gomez-Velazco, 879 F.3d at 993 (citing Montes-Lopez v. Holder, 694 F.3d 1085, 1090 (9th Cir. 2012)). In light of the need to remand for a new hearing, we do not address Usubakunov’s other challenges. We grant Usubakunov’s petition for review and remand for further proceedings. PETITION GRANTED and REMANDED.”

[Hats off to Bardis Vakili (argued), ACLU Foundation of San Diego and Imperial Counties, San Diego, Kristin MacLeod-Ball, American Immigration Council, Brookline, Massachusetts; Mary Kenney, American Immigration Council, Washington, D.C.; for Amicus Curiae American Immigration Council; and Laura J. Edelstein, Jenner & Block LLP, San Francisco, California, for Amicus Curiae Women’s Refugee Commission!]

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https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/natz-victory-slams-matter-of-zhang-melara-v-mayorkas

Natz. Victory Slams Matter of Zhang: Melara v. Mayorkas

Melara v. Mayorkas

“Matter of Zhang, 27 I&N Dec. 569 (BIA 2019) is not entitled to deference by this Court because it is a dramatic break with past agency interpretation, is in conflict with the Department of State’s current interpretation of the false claim to citizenship ground of inadmissibility, and is a break from Congress’s clearly expressed intent. An agency’s interpretation of an unambiguous statute receives no deference if the interpretation is not in line with Congress’s clearly expressed intent. See, e.g., Valenzuela Gallardo v. Lynch, 818 F.3d 808, 815 (9th Cir. 2016).  Matter of Zhang takes a dramatic and unique approach to the knowledge element out of the term “false claim to U.S. citizenship.” See, e.g., Richmond v. Holder, 714 F.3d 725, 729 (2d Cir. 2013) (assuming without deciding that false claim inadmissibility provision has knowledge element); Muratoski v. Holder, 622 F.3d 824, 828 (7th Cir. 2010) (agency determined that applicant lacked good moral character because he “knew or should have known” that he was not a United States citizen at the time he made that claim); Valdez-Munoz v. Holder, 623 F.3d 1304, 1308 (9th Cir. 2010) (reasonable factfinder would not be compelled to disagree with agency’s determination that applicant was inadmissible because he “intended to and did make a false claim of United States citizenship”). … The Court finds that Petitioner Antonio Fernando Melara has met his burden of proving each element of naturalization by preponderance of the evidence. Judgment is GRANTED for Petitioner.”

[Hats way off to Sabrina Damast and Patricia M. Corrales!]

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Individuals are being mistreated! Attorneys are frustrated! Due Process is mocked! Garland is disinterested in fixing the huge structural, personnel, and quality control problems at BIA/EOIR!

🇺🇸Due Process Forever!

  

PWS

11-03-21

⚖️PULVERIZED! — 6th Cir. Slam Dunks 🏀 On Mayorkas/Garland Efforts To Avoid Consequences of Illegal USCIS Actions On U Visas! 

Dan Kowalski reports for LexisNexis Immigration Community:

https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0217p-06.pdf

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/massive-u-visa-and-apa-victory-barrios-garcia-v-dhs-ca6#

Barrios Garcia v. DHS

“Plaintiffs have sufficiently alleged that USCIS has unreasonably delayed the adjudication of their U-visa applications. Because the BFD [“Bona Fide Determination”] process was issued after Plaintiffs’ complaints were filed, Plaintiffs should be allowed to amend their complaints should they wish to assert that USCIS has unreasonably delayed its determination that their U-visa applications are “bona fide.” … We hold that the issuance of the BFD Process moots no part of this case. We hold that 5 U.S.C. § 701(a)(1), 8 U.S.C. § 1252(a)(2)(B)(ii), and 5 U.S.C. § 701(a)(2) do not bar the federal courts from reviewing claims that USCIS has unreasonably delayed placing principal petitioners on the U-visa waitlist and adjudicating prewaitlist work-authorization applications. We hold that the federal courts may compel USCIS to place principal petitioners on the U-visa waitlist when an unreasonable delay has occurred per 5 U.S.C. § 706(1). We hold that § 706(1) allows the federal courts to command USCIS to hasten an unduly delayed “bona fide” determination, which is a mandatory decision under 8 U.S.C. § 1184(p)(6) and the BFD process. We hold, however, that the federal courts cannot invoke 5 U.S.C. § 706(1) to force USCIS to speed up an unduly delayed prewaitlist work-authorization adjudication, which is a nonmandatory agency action under 8 U.S.C. § 1184(p)(6) and the BFD process. We hold that Plaintiffs have sufficiently pleaded that USCIS has unreasonably delayed the principal petitioners’ placement on the U-visa waitlist. We further hold that Plaintiffs should be permitted to amend their complaints should they wish to challenge any delayed “bona fide” determinations. We thus REVERSE the district courts’ grants of the Government’s motions to dismiss and REMAND for further proceedings.”

[Hats way off to Brad Banias!]

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Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

cell/text/Signal (512) 826-0323

@dkbib on Twitter

dan@cenizo.com

Free Daily Blog: www.bibdaily.com

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Just another in the continuing litany of why Mayorkas and Garland aren’t getting the job done for immigrants. They continue to: 1) mindlessly defend Trump-era screw ups and invidiously motivated actions; 2) attempt to weasel their way out of accountability for misdeeds by their agencies. This case should have been settled, plain and simple!

The only good thing about the dilatory litigation tactics employed by DHS and DOJ is that they are building up some good case law precedents for those challenging Government immigration actions and hopefully costing the DOJ attorneys’ fees that can be plowed back into public interest litigation. Actually, the DOJ should be litigating “in the public interest,” but apparently someone forgot to tell “Team Garland.”

Trump and his xenophobic, insurrectionist colleagues were not a “normal” Administration. For the Biden folks to continue to ignore that and pretend like the White Nationalist, anti-democracy actions of the Trump kakistocracy/bureaucracy were “business as usual,” will be a never-ending disaster for the Dems!

🇺🇸Due Process Forever!

PWS

09-16-21

⚖️MATTER OF A-B- REMAND: Many More To Follow! — But, Without Progressive Reforms By Garland, Due Process, Fundamental Fairness, & Best Practices Will Remain Elusive! 

 

Dan Kowalski reports on LexisNexis Immigration Community:

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/unpub-ca6-on-honduras-social-group#

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Daniel M. Kowalski

7 Jul 2021

Unpub. CA6 on Honduras, Social Group: u

Corea Escoto v. Garland (unpub.)

“Given the BIA’s repeated reliance on A-B-, briefing on the effect of A-B-’s overruling is necessary. We remand to the BIA to reconsider Corea’s asylum claim in the first instance, this time under pre-A-B- caselaw.”

[Hats off to Sally M. Joyner!]

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Garland has failed to :

  • Get rid of the “Miller Lite Denial Club @ EOIR;”
  • Bring in progressive immigration experts at the BIA and the Immigration Courts;
  • Generate long-overdue positive precedents on granting asylum to those persecuted by domestic violence and other forms of gender-based persecution.

Consequently, these remands (of many cases that should have been granted years ago) are likely to be yet another “Aimless Docket Reshuffling” disaster. The BIA was “all over the place” on A-R-C-G- domestic violence cases even prior to Session’s racist, misogynistic, intellectually dishonest atrocity in A-B-. Without a better qualified, courageous, expert BIA committed to due process and positive precedents on how to efficiently recognize and grant “gender-based” asylum cases, the backlog-building, due-process-denying, equal-justice-eroding deadly farce known as “refugee roulette” @ EOIR will continue!🤮☠️

Tell Garland you’ve had (more than) enough. Fix EOIR with real progressive judges and competent judicial (not bureaucratic) administrators! 🇺🇸 Due Process Forever!

PWS

07-08-21

TRASVINA RESTORES “PD” @ ICE; 6TH CIR. REJECTS CASTRO-TUM! BUT GARLAND’S FAILURES @ EOIR CONTINUE TO HAMPER BIDEN ADMINISTRATION, CAUSE CONFUSION, INCREASE BACKLOGS!  — “In performing their duties, including through implementation of this memorandum, OPLA attorneys should remain mindful that ‘[i]mmigration enforcement obligations do not consist only of initiating and conducting prompt proceedings that lead to removals at any cost. Rather, as has been said, the government wins when justice is done.’” 

John D. Trasvina
John D. Trasvina
Principal Legal Adviser
ICE — Finally, some common sense, practical scholarship, leadership, and “good government” from someone in the Biden Administration’s Senior Immigration Team! Not surprisingly, it’s from one of the few who has actually “walked the walk” on the relationship between racial justice and immigrants’ rights. He appears to be the “right person” for ICE. Would he have been a better choice to clean up the mess at DOJ?
PHOTO: Wikipedia

 

https://www.ice.gov/doclib/about/offices/opla/OPLA-immigration-enforcement_interim-guidance.pdf

   MEMORANDUM FOR: FROM:

SUBJECT:

May 27, 2021 All OPLA Attorneys

John D. Trasvifia Principal Legal Advisor

JOHN D TRASVINA

DigitallysignedbyJOHN0 TRASVINA

Date:2021.05.27 07:04:19 -07’00’

Interim Guidance to OPLA Attorneys Regarding Civil Immigration Enforcement and Removal Policies and Priorities

On January 20, 2021, President Biden issued Executive Order (EO) 13993, Revision ofCivil Immigration Enforcement Policies and Priorities, 86 Fed. Reg. 7051 (Jan. 20, 2021), which articulated foundational values and priorities for the Administration with respect to the enforcement of the civil immigration laws. On the same day, then-Acting Secretary ofHomeland Security David Pekoske issued a memorandum titled, Review o fand Interim Revision to Civil Immigration Enforcement and Removal Policies and Priorities (Interim Memorandum).

The Interim Memorandum did four things. First, it directed a comprehensive Department of Homeland Security (DHS or Department)-wide review of civil immigration enforcement policies. Second, it established interim civil immigration enforcement priorities for the Department. Third, it instituted a 100-day pause on certain removals pending the review. Fourth, it rescinded several existing policy memoranda, including a prior U.S. Immigration and Customs Enforcement (ICE) Office ofthe Principal Legal Advisor (OPLA) memorandum, as inconsistent with EO 13993.2 The Interim Memorandum further directed that ICE issue interim guidance implementing the revised enforcement priorities and the removal pause.

On February 18, 2021, ICE Acting Director Tae D. Johnson issued ICE Directive No. 11090.1,

1

On January 26, 2021, a federal district court issued a temporary restraining order (TRO) enjoining DHS and its components from enforcing and implementing Section C ofthe interim Memorandum titled, Immediate JOO-Day Pause on Removals. See Texas v. United States, — F. Supp. 3d —, 2021 WL 247877 (S.D. Tex. 2021); see also Texas v. United States, 2021 WL 411441 (S.D. Tex. Feb. 8, 2021) (extending TRO to February 23, 2021). On February 23, 2021 , the district court issued an order preliminarily enjoining DHS from “enforcing and implementing the policies described in … Section C.” Texas v. United States, 2021 WL 723856 (S.D. Tex. Feb. 23, 2021). In light of the expiration of the 100-day period described in Section C, that case has been dismissed as moot. Similarly, in light ofthe preliminary injunction, and the fact that the 100-day period described in the Interim Memorandum has now expired, this interim OPLA guidance does not implement Section C of the Interim Memorandum.

2 The Interim Memorandum revoked, as inconsistent with EO 13993, the memorandum from former Principal Legal Advisor Tracy Short, Guidance to OPLA Attorneys Regarding the Implementation ofthe President’s Executive Orders and the Secretary’s Directives on Immigration Enforcement (Aug. 15, 2017). OPLA attorneys should no longer apply that prior guidance.

FOR OFFICIAL USE ONLY

Office o fthe Principal Legal Advisor

U.S. Department of Homeland Security 500 12th Street, SW

Washington, DC 20536

U.S. Immigration

and Customs Enforcement

www.1ce.gov

1

  OPLA Guidance Regarding Civil Immigration Enforcement and Removal Policies and Priorities Page 2 of 13

Interim Guidance: Civil Immigration Enforcement and Removal Priorities (Johnson Memorandum). And, on May 27, 2021, Acting General Counsel Joseph B. Maher issued a memorandum titled, Implementing Interim Civil Immigration Enforcement Policies and Priorities (Maher Memorandum). In accordance with these memoranda, and pending the outcome of the Secretary’s review and any resulting policy guidance, I am providing this additional interim direction to OPLA attorneys to guide them in appropriately executing the Department’s and ICE’s interim enforcement and removal priorities and exercising prosecutorial discretion.

Prosecutorial discretion is an indispensable feature of any functioning legal system. The exercise ofprosecutorial discretion, where appropriate, can preserve limited government resources, achieve just and fair outcomes in individual cases, and advance the Department’s mission of administering and enforcing the immigration laws ofthe United States in a smart and sensible way that promotes public confidence. In performing their duties, including through implementation ofthis memorandum, OPLA attorneys should remain mindful that “[i]mmigration enforcement obligations do not consist only of initiating and conducting prompt proceedings that lead to removals at any cost. Rather, as has been said, the government wins when justice is done.” 3 As a result, they are both authorized by law and expected to exercise discretion in accordance with the factors and considerations set forth in the Interim Memorandum, the Johnson Memorandum, the Maher Memorandum, and in this guidance at all stages of the enforcement process and at the earliest moment practicable in order to best conserve prosecutorial resources and in recognition o f the important interests at stake.

I. Enforcement and Removal Priority Cases

The Johnson Memorandum identifies three categories of cases that are presumed to be enforcement and removal priorities for ICE personnel. Subject to preapproval from supervisory personnel, other civil immigration enforcement or removal actions also may be deemed priorities. OPLA attorneys assigned to handle exclusion, deportation, and removal proceedings are directed to prioritize agency resources consistent with those presumed priorities and other matters approved as priorities under the Johnson Memorandum or by their Chief Counsel. The presumed priority categories are:

1. NationalSecurity.Noncitizens.4 whohaveengagedinoraresuspectedof

3 Matter ofS-M-J-, 21 l&N Dec. 722, 727 (BIA 1997) (en bane). In remarks delivered at the Second Annual Conference of United States Attorneys more than 80 years ago, Attorney General Robert H. Jackson said, “[n]othing better can come out of this meeting of law enforcement officers than a rededication to the spirit of fair play and decency that should animate the federal prosecutor. Your positions are ofsuch independence and importance that while you are being diligent, strict, and vigorous in law enforcement you can also afford to be just Although the government technically loses its case, it has really won ifjustice has been done.” Robert H. Jackson, The Federal Prosecutor, 24 J. AM. JUD. Soc’Y 18, 18-19 (1940).

4 Consistent with ICE guidance, this memorandum uses the word “noncitizen” to refer to individuals described in section 10l(a)(3) ofthe Immigration and Nationality Act (INA). See Memorandum from Tae Johnson, ICE Acting Director, Updated Terminologyfor Communications and Materials (Apr. 19, 2021). OPLA attorneys should familiarize themselves with this ICE guidance and use the appropriate terminology set forth therein when engaged in outreach efforts, drafting internal documents, and communicating with stakeholders, partners, and the general

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ten-orism or espionage or terrorism-related or espionage-related activities, or whose apprehension, arrest, or custody, is otherwise necessary to protect the national security ofthe United States..5

2. Border Security. Noncitizens who were apprehended at the border or a port ofentry while attempting to unlawfully enter the United States on or after November 1, 2020, or who were not physically present in the United States before November 1, 2020.

3. Public Safety. Noncitizens who have been convicted of an “aggravated felony,” as that term is defined in section 101(a)(43) of the Immigration and Nationality Act (INA), or who have been convicted ofan offense for which an element was active pa1ticipation in a criminal street gang, as defined in

18 U.S.C. § 52 l(a), or who are not younger than 16 years of age and intentionally participated in an organized criminal gang or transnational criminal organization to further the illegal activity ofthe gang or transnational criminal organization; and are determined to pose a threat to public safety.6

Neither the presumed priorities nor the guidance regarding other priority cases subject to preapproval are intended to require or prohibit taking or maintaining a civil immigration enforcement or removal action against any individual noncitizen. Rather, OPLA attorneys are expected to exercise their discretion thoughtfully, consistent with ICE’s important national security, border security, and public safety mission. Civil immigration enforcement and removal efforts involving a noncitizen whose case fits within the three areas just listed are presumed to be a justified allocation ofICE’s limited resources. Enforcement and removal efforts may also be

justified in other cases, under appropriate circumstances. 7 Prioritization of finite agency

public. Formal legal terminology (e.g., “alien,” “alienage”) should continue to be used by OPLA attorneys when appearing before judicial and quasi-judicial tribunals, and when quoting or citing to sources of legal authority or other official documents like immigration forms.

5 For purposes of the national security presumed enforcement priority, the tenns “terrorism or espionage” and “terrorism-related or espionage-related activities” should be applied consistent with (I) the definitions of”terrorist activity” and “engage in terrorist activity” in section 212(a)(3)(B)(iii)-(iv) of the INA, and (2) the manner in which the term “espionage” is generally applied in the immigration laws. In evaluating whether a noncitizen’s “apprehension, arrest, and/or custody, or removal is otherwise necessary to protect” national security, officers and agents should determine whether a noncitizen poses a threat to United States sovereignty, territorial integrity, national interests, or institutions. General criminal activity does not amount to a national security threat.

6 In evaluating whether a noncitizen currently “pose[s] a threat to public safety,” consideration should be given to the extensiveness, seriousness, and recency ofthe criminal activity, as well as to mitigating factors, including, but not limited to, personal and family circumstances, health and medical factors, ties to the community, evidence of rehabilitation, and whether the individual has potential immigration relief available. See Johnson Memorandum at 5.

7 As reflected in the Johnson Memorandum, Field Office Director (FOD) or Special Agent in Charge (SAC) approval is generally required in advance ofcivil immigration enforcement or removal actions taken by ICE officers and agents in cases other than presumed priority cases. Where exigent circumstances and public safety concerns make it impracticable to obtain pre-approval for an at-large enforcement action (e.g., where a noncitizen poses an imminent threat to life or an imminent substantial threat to property), approval should be requested within 24 hours following the action. See Johnson Memorandum at 6.

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resources is a consideration in all civil immigration enforcement and removal decisions, including but not limited to the following:

• Deciding whether to issue a detainer, or whether to assume custody of a noncitizen subject to a previously issued detainer;

• Deciding whether to issue, reissue, serve, file, or cancel a Notice to Appear (NTA);

• Deciding whether to focus resources only on administrative violations or conduct;

• Deciding whether to stop, question, or arrest a noncitizen for an administrative violation of the civil immigration laws;

• Deciding whether to detain or release from custody subject to conditions or on the individual’s own recognizance;

• Deciding whether to settle, dismiss, oppose or join in a motion on a case, narrow the issues in dispute through stipulation, or pursue appeal in removal proceedings;

• Deciding when and under what circumstances to execute final orders of removal; and

• Deciding whether to grant defe1Ted action or parole.

This non-exhaustive list ofcivil immigration enforcement and removal decisions identifies opportunities at every stage ofthe process to ensure the most just, fair, and legally appropriate outcome, whether that outcome is a grant of relief, an order of removal, or an exercise of discretion that allows the noncitizen to pursue immigration benefits outside the context of removal proceedings. This memorandum provides interim guidance regarding the following enforcement decisions within OPLA’s purview: filing or canceling an NTA; moving to administratively close or continue proceedings; moving to dismiss proceedings; pursuing appeal;

joining in a motion to grant reliefor to reopen or remand removal proceedings and entering stipulations; and taking a position in bond proceedings, as discussed below..8 While discretion may be exercised at any stage of the process and changed circumstances for an individual denied prosecutorial discretion at one stage may warrant reconsideration at a later stage, discretion generally should be exercised at the earliest point possible, once relevant facts have been established to properly inform the decision.

8 While resources should be allocated to the presumed priorities enumerated above, “nothing in [the Interim M]emorandum prohibits the apprehension or detention ofindividuals unlawfully in the United States who are not identified as priorities herein.” Interim Memorandum at 3. See also Johnson Memorandum at 3 (“[J]t is vitally important to note that the interim priorities do not require or prohibit the atTest, detention, or removal ofany noncitizen.”); Maher Memorandum at 3 (“Neither the presumed priorities nor the guidance regarding other priority cases subject to preapproval are intended to require or prohibit taking or maintaining a civil immigration enforcement action against an individual noncitizen.”). OPLA may dedicate its resources to pursuing enforcement action against a noncitizen who does not fall into one of the presumed enforcement priorities where the FOD or SAC has approved taking enforcement action in the case, where the NTA-issuing agency has exercised its own discretion to prioritize the noncitizen for enforcement under the Interim Memorandum, or where the ChiefCounsel, in their discretion, decides that OPLA resources should be committed to the case.

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This memorandum is intended to provide guidance pending completion ofthe DHS-wide comprehensive review of civil immigration enforcement and removal policies and practices contemplated in the Interim Memorandum. To that end, additional guidance will be fo1thcoming.

II. Prosecutorial Discretion

OPLA will continue to fulfill its statutory responsibility as DHS’s representative before the Executive Office for Immigration Review (EOIR) with respect to exclusion, deportation, and removal proceedings. See 6 U.S.C. § 252(c). In that capacity, prosecutorial discretion plays an important role in OPLA’s enforcement decision making. The following general guidance on prosecutorial discretion should inform how OPLA attorneys apply the enforcement priorities of DHS and ICE.

OPLA attorneys may exercise prosecutorial discretion in proceedings before EOIR, subject to direction from their chain ofcommand and applicable guidance from DHS. In exercising such discretion, OPLA attorneys will adhere to the enduring principles that apply to all o f their activities: upholding the rule oflaw; discharging duties ethically in accordance with the law and professional standards of conduct; following the guidelines and strategic directives of senior leadership; and exercising considered judgment and doing justice in individual cases, consistent with DHS and ICE priorities.

Prosecutorial discretion is the longstanding authority o f an agency charged with enforcing the law to decide where to focus its resources and whether or how to enforce, or not to enforce, the law against an individual. In the context of OPLA’s role in the administration and enforcement of the immigration laws, prosecutorial discretion arises at different stages of the removal process, takes different forms, and applies to a variety ofdeterminations. As the Supreme Court explained more than two decades ago when discussing the removal process, “[a]t each stage the Executive has discretion to abandon the endeavor . . . .”.9

OPLA’s policy is to exercise prosecutorial discretion in a manner that furthers the security ofthe United States and the faithful and just execution ofthe immigration laws, consistent with DHS’s and ICE’s enforcement and removal priorities. While prosecutorial discretion is not a formal program or benefit offered by OPLA, OPLA attorneys are empowered to exercise prosecutorial discretion in their assigned duties consistent with this guidance. Among other decisions, the exercise of discretion also generally includes whether to assign an attorney to represent the department in a particular case. See 8 C.F.R. § 1240.2(b) (creating expectation that DHS will assign counsel to cases involving mental competency, noncitizen minors, and contested removability, but that otherwise, “in his or her discretion, whenever he or she deems such assignment necessary or advantageous, the General Counsel may assign a [DHS] attorney to any other case at any stage of the proceeding”) (emphasis added). OPLA Chief Counsel are permitted to exercise this discretion on my behalf, in appropriate consultation with their chain of command.

In determining whether to exercise prosecutorial discretion, OPLA should consider relevant aggravating and mitigating factors. Relevant mitigating factors may include a noncitizen’s length

9 Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 47 1, 483-84 ( 1999). FOR OFFICIAL USE ONLY

  OPLA Guidance Regarding Civil Immigration Enforcement and Removal Policies and Priorities Page 6 of 13

of residence in the United States; service in the U.S. military; family or community ties in the United States; circumstances ofarrival in the United States and the manner oftheir entry; prior immigration history; current immigration status (where lawful permanent resident (LPR) status generally warrants greater consideration, but not to the exclusion ofother noncitizens depending on the totality ofthe circumstances); work history in the United States; pursuit or completion of education in the United States; status as a victim, witness, or plaintiff in civil or criminal proceedings; whether the individual has potential immigration relief available; contributions to the community; and any compelling humanitarian factors, including poor health, age, pregnancy, status as a child, or status as a primary caregiver ofa seriously ill relative in the United States. Relevant aggravating factors may include criminal history, participation in persecution or other human rights violations, extensiveness and seriousness ofprior immigration violations (e.g., noncompliance with conditions of release, prior illegal entries, removals by ICE), and fraud or material misrepresentation. Where a criminal history exists, OPLA should consider the extensiveness, seriousness, and recency ofthe criminal activity, as well as any indicia of rehabilitation; extenuating circumstances involving the offense or conviction; the time and length ofsentence imposed and served, ifany; the age ofthe noncitizen at the time the crime was committed; the length oftime since the offense or conviction occurred; and whether subsequent criminal activity supports a determination that the noncitizen poses a threat to public safety. These factors are not intended to be dispositive or exhaustive. Discretion should be exercised on a case-by-case basis considering the totality ofthe circumstances.

Requests for prosecutorial discretion may be made in accordance with the instructions provided in Section IX of this guidance. Where a request for prosecutorial discretion is made, the OPLA attorney handling the case must document that request in PLAnet, identifying the requester and the substance of the request and uploading any supporting documentation consistent with standard operating procedures (SOPs). 10 Based on my experience working with you over the past few months, I believe strongly in the professionalism, legal skill, and judgment of OPLA’s attorneys, working through their supervisors to advise our clients and manage an enormous workload with limited resources. I trust and expect that all OPLA field attorneys, under the leadership ofourChiefCounsel, will work strenuously to ensure the timely and appropriate exercise ofdiscretion in meritorious removal cases. That being said, given the tremendous importance of achieving just and correct outcomes on these issues, it is entirely pe1missible for any OPLA attorney to raise prosecutorial discretion decisions through their chain ofcommand to OPLA headquaiters (HQ) for additional review or discussion.

Appropriate exercises ofprosecutorial discretion are in the mutual interest of both the person benefitting from the exercise ofdiscretion and the government itself. This mutual interest is no less significant because a noncitizen does not affirmatively request prosecutorial discretion. In the absence of an affirmative request for prosecutorial discretion by a noncitizen or a noncitizen’s representative, OPLA attorneys should nonetheless examine the cases to which they are assigned to determine independently whether a favorable exercise ofdiscretion may be

10 If the case involves classified information, the OPLA attorney must transmit such information only in accordance with the DHS Office ofthe ChiefSecurity Officer Publication, Safeguarding Classified & Sensitive But Unclassified Information Reference Pamphlet (Feb. 2012, or as updated), and all other applicable policies governing the handling ofclassified information.

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appropriate. This affirmative duty to evaluate assigned cases is central to an OPLA attorney’s job. Chief Counsel should include in their local SOPs ways to address these cases including how

OPLA attorneys should document their affirmative consideration ofprosecutorial discretion in PLAnet.

III. Notices to Appear

When a legally sufficient, appropriately documented NTA has been issued by a DHS component consistent with the component’s issuing and enforcement guidelines, 11 it will generally be filed with the immigration court and proceedings litigated to completion unless the Chief Counsel exercises prosecutorial discretion based on their assessment of the case. 12 As prosecutorial discretion is expected to be exercised at all stages of the enforcement process and at the earliest moment practicable, it may be appropriate for the Chief Counsel to conclude that a legally

sufficient, a ro riatel documented administrative immi ration case warrants non-filin of an

NTA_ (b)(S) (b)(5)

(b)(S) Where an NTA is issued but not filed with the immigration court pursuant to this section, OPLA should document the reasoning for this position in PLAnet and the OPLA Field Location should work with its local Enforcement and Removal Operations (ERO) Field Office to cancel the NTA and inform the noncitizen of the cancellation. 13

IV. Administrative Closure and Continuance of Proceedings

In the past, OPLA had broad authority to exercise prosecutorial discretion by agreeing to

administrative closure of cases by EOIR. However, due to conflicting court of appeals decisions

11 This includes NTAs submitted to OPLA by ICE operational components as well as U.S. Citizenship and Immigration Services (USCIS) and U.S. Customs and Border Protection (CBP) for review. “Appropriately documented” in this context means that, in OPLA’s litigation judgment, sufficient information has been provided by the NTA-issuing component to carry any DHS burden of proof. See INA§ 240(c), 8 C.F.R. § 1240.8.

12 Separate and apart from the enforcement priority framework outlined in the Interim Memorandum and Johnson Memorandum, certain noncitizens have an established right to be placed into removal proceedings. See, e.g., 8 C.F.R. §§ 208. l4(c)(l) (requiring referral for removal proceedings ofa removable noncitizen whose affirmative asylum application is not granted by USCIS); 216.4(d)(2) (requiring NTA issuance to noncitizen whose joint petition to remove conditional basis ofLPR status is denied by USCIS); 216.S(f) (same; USCIS denial ofapplication for waiver of the joint petition requirement). In other cases, USCIS may issue an NTA on a discretionary basis to a noncitizen who wishes to pursue immigration benefits before the immigration court. Although such cases do not fall within the priority framework, absent an affirmative request by the noncitizen prior to the merits hearing for the favorable exercise of prosecutorial discretion to dismiss removal proceedings, OPLA attorneys should generally litigate them to completion. If such noncitizens are ordered removed, requests for prosecutorial discretion would then most properly be made to ERO for evaluation in accordance with the Department’s and ICE’s stated priorities.

13 The NTA cancellation regulation vests immigration officers who have the authority to issue NTAs with the authority to also cancel them. 8 C.F.R. § 239.2(a). The regulation expresses a preference for certain NTAs to be cancelled by the same officer who issued them “unless it is impracticable” to do so. Id. § 239.2(b). Given the enormous size ofthe EOIR docket, current OPLA staffing levels, and complexities associated with routing any significant number ofNTAs back to specific issuing officers stationed around the country, it would be impracticable to require OPLA attorneys to do so. By contrast, the local ERO Field Offices with which OPLA Field Locations routinely interact are well suited to assist with this function promptly and efficiently.

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on the validity ofMatter ofCastro-Tum, 27 I&N Dec. 271 (A.G. 2018) (limiting administrative closure by EOIR adjudicators to circumstances where a previous regulation or judicially approved settlement expressly authorizes such an action), the availability ofadministrative closure as a form ofprosecutorial discretion for ICE and a tool ofdocket management for EOIR is limited in certain jurisdictions for certain types of cases. 14 Nevertheless, OPLA retains authority to handle pending cases on EOIR’s docket by deciding whether to agree to a continuance for “good cause shown” under 8 C.F.R. § 1003.29, see also Matter ofL-A-B-R-, I&N Dec. 405 (A.G. 2018) (interpreting this regulation), and whether to seek, oppose, or join in a motion for dismissal of proceedings pursuant to 8 C.F.R. § 1239.2(c).

The presumed priorities outlined above will be a significant factor informing the position that OPLA attorneys take in response to continuance motions made by noncitizens in removal proceedings. Indeed, given the comprehensive review of immigration enforcement and removal policies and practices directed by Section A ofthe Interim Memorandum, OPLA attorneys are authorized to take the general position that “good cause” exists in cases in which noncitizens who fall outside the presumed priorities seek to have their cases continued to await the outcome of that comprehensive review. 15 Continuing cases in these circumstances may conserve OPLA resources in cases where the ultimate arrest, detention, and removal of a noncitizen are unlikely. Accordingly, while immigration judges (Us) will make case-by-case assessments whether continuance motions are supported by “good cause shown” under 8 C.F.R. § 1003.29, and OPLA attorneys should assess each continuance motion on its own terms, in the absence ofserious aggravating factors, the fact that a noncitizen is not a presumed priority should weigh heavily in favor of not opposing the noncitizen’s motion. Before opposing a continuance in such cases, OPLA attorneys should confer with their supervisors. The reason for opposing the motion should also be documented in PLAnet.

V. Dismissal of Proceedings

With approximately 1.3 million cases on the immigration courts’ dockets nationwide, and the varied procedural postures of such cases, including many set for future merits hearings on re.lief or protection from removal, OPLA will cover, at a later date and in a comprehensive fashion, how to address the potential dismissal ofproceedings consistent with its limited resources and DHS and ICE guidance. The size ofthe court backlog and extraordinary delays in completing cases impede the interests ofjustice for both the government and respondents alike and underminepublicconfidenceinthis importantpillaroftheadministrationofthenation’s

14 Compare Hernandez-Serrano v. Barr, 981 F.3d 459 (6th Cir. 2020) (agreeing with Castro-Tum), with Arcos Sanchez, 2021 WL I774965, — F.3d — (3d Cir. 2021) (rejecting Castro-Tum and finding that EOIR regulations giving broad case management authority to its adjudicators includes administrative closure authority), Meza Morales v. Barr, 973 F.3d 656 (7th Cir. 2020) (Coney Barrett, J.) (same), and Romero v. Barr, 937 F.3d 282 (4th Cir. 2019) (same). Notwithstanding this variation in circuit law, administrative closure remains available under Castro-Tum for T and V nonimmigrant visa applicants. See 8 C.F.R. §§ I214.2(a) (expressly allowing for administrative closure for noncitizens seeking to apply for T nonimmigrant status), 1214.3 (same; V nonimmigrant status).

15 This does not imply that “good cause” cannot exist in cases ofnoncitizens who fall into the presumed priority categories or are otherwise a civil immigration enforcement or removal priority. OPLA attorneys retain discretion to, as appropriate, agree to continuances in such cases.

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  OPLA Guidance Regarding Civil Immigration Enforcement and Removal Policies and Priorities Page 9 of 13

immigration laws. In advance of future guidance, cases that generally will merit dismissal in the absence of serious aggravating factors include:

I. MilitaryServiceMembersorImmediateRelativesThereof16

A favorable exercise of prosecutorial discretion (i.e., concurrence with or non-opposition to a motion for dismissal ofproceedings without prejudice) generally will be appropriate if a noncitizen or immediate relative is a current or former member (honorably discharged) of the Armed Forces, including the U.S. Army, Air Force, Navy, Marine Corps, Coast Guard, and Space Force, or a member of a reserve component of the Anned Forces or National Guard, particularly if the individual may qualify for U.S. citizenship under sections 328 or 329 ofthe I N A . _1 1

2. Individuals Likely to be Granted Temporary or Permanent Relief

When a noncitizen has a viable avenue available to regularize their immigration status outside of removal proceedings, whether through temporary or pennanent relief, it generally will be appropriate to move to dismiss such proceedings without prejudice so that the noncitizen can pursue that relief before the appropriate adjudicatory body. 18 This may be appropriate where, for instance, the noncitizen is the beneficiary of an approved Form 1-130, Petition for Alien Relative, and appears prima facie eligible for either adjustment of status under INA section 245 or an immigrant visa through consular processing abroad, including in conjunction with a provisional waiver of unlawful presence under 8 C.F.R. § 212.7(e), immediately or in the near future; appears prima facie eligible to register for Temporary Protected Status (TPS);.19 or is a child who appears prima facie eligible to pursue special immigrant juvenile status under INA section 101(a)(27) and 8 C.F.R. § 204.11. In such a circumstance, the exercise of prosecutorial discretion itselfcan help to promote the integrity ofour immigration system by enhancing the ability of certain noncitizens to come into compliance with our immigration laws.

3. Compelling Humanitarian Factors

The favorable exercise ofprosecutorial discretion- including agreeing to dismissal of proceedings without prejudice-generally will be appropriate when compelling humanitarian factors become apparent during NTA review or litigation of the case. While some factors will weigh more heavily than others, this can include cases where, for instance, the noncitizen has a serious health condition, is elderly, pregnant, or a minor; is the primary caregiver to, or has an

16 See Email from Kenneth Padilla, DPLA, Field Legal Operations, to all OPLA attorneys, Refresher Guidance Regarding United States Veterans and Military Service Members in Removal (Nov. 18, 2019).

17

citizenship. See ICE Directive 16001 .2, Investigating the Potential U S. Citizenship o fIndividuals Encountered by

Relatedly, OPLA attorneys must continue to follow ICE guidance related to the evaluation of claims to U.S. ICE (Nov. 10, 2015).

18 DHS regulations expressly contemplate joint motions to tenninate removal proceedings in appropriate cases in which the noncitizen is seeking to apply for U nonimmigrant status. See 8 C.F.R. § 214.14(c)(I)(i).

19 Stipulation to TPS in such cases may also be an option, in the exercise ofdiscretion. Cf Matter ofD-A-C-, 27 I & N . D e c . 5 7 5 ( B I A 2 0 I 9 ) ( d i s c u s s i n g d i s c r e t i o n a r y a u t h o r i t y o f I J s t o g r a n t T P S ) ; S e c t i o n V I I , i n fr a .

FOR OFFICIAL USE ONLY

  OPLA Guidance Regarding Civil Immigration Enforcement and Removal Policies and Priorities Page 10of13

immediate family or household member who is, known to be suffering from serious physical or mental illness; is a victim ofdomestic violence, human trafficking, or other serious crime;.20 came to the United States as a young child and has since lived in the United States continuously; or is party to significant collateral civil litigation (e.g., family court proceedings, non-frivolous civil rights or labor claims).

4. Significant Law Enforcement or Other Governmental Interest

Where a noncitizen is a cooperating witness or confidential informant or is otherwise significantly assisting state or federal law enforcement, it may be appropriate in certain cases to agree to the dismissal ofproceedings without prejudice. “Law enforcement” in this context includes not only conventional criminal law enforcement, but also enforcement of labor and civil rights laws. In exercising discretion related to law enforcement equities, OPLA attorneys should be guided by the perspectives of the relevant investigating agency components (e.g., the Office ofInspector General, Office for Civil Rights and Civil Libe1ties, Depa1tmentofJustice Immigrant and Employee Rights Section, Department of Labor, National Labor Relations Board, Equal Employment Opportunity Commission, other federal agencies, ERO, Homeland Security Investigations, and any relevant state counterparts). Additionally, such law enforcement entities may have tools at their disposal that OPLA does not, including stays of removal, deferred action, T and U nonimmigrant status law enforcement certification, and requests for S nonimmigrant classification. In any event, national security, border security, and public safety are paramount in deciding whether to continue litigating removal proceedings.

5. Long-TermLawfulPermanentResidents

A favorable exercise of prosecutorial discretion should also be considered for LPRs who have resided in the United States for many years, paiticularly when they acquired their LPR status at a young age and have demonstrated close family and community ties. Dismissal ofsuch cases that do not present serious aggravating factors will allow the noncitizen to maintain a lawful immigration status and conserve finite government resources.

When OPLA agrees to dismissal of removal proceedings as an exercise ofprosecutorial discretion in the categories above, the reasoning for this position should be recorded in PLAnet.

VI. Pursuing Appeal

In our immigration system, DHS initiates removal proceedings while IJs and the Board of Immigration Appeals (BIA) exercise the Attorney General’s delegated authority to adjudicate issues ofremovability and reliefand protection from removal. OPLA attorneys continue to possess the discretion to take legally viable appeals ofIJ decisions and make appropriate legal arguments in response to noncitizen appeals and motions..2 1 Appellate advocacy should generally

20 See generally ICE Directive No. 10076.1, Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffs (June 17,2011).

21 OPLAheadquartersdivisionsshouldcontinuetocoordinatewithimpactedDHSOfficeoftheGeneralCounsel (OGC) headquarters and component counsel offices when preparing briefs and motions in significant litigation.

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   OPLA Guidance Regarding Civil Immigration Enforcement and Removal Policies and Priorities Page 11 of13

focus on priority cases- national security, border security, and public safety. Of course, other considerations, such as significant aggravating and mitigating factors and the need to seek clarity on an important legal issue, are appropriate for OPLA attorneys to take into account, consistent with direction from their respective Chief Counsel.

Consistent with any local guidance issued by their respective Chief Counsel,.22 OPLA attorneys may waive appeal in a case that is not a priority. OPLA attorneys may also decline to appeal where there is little likelihood ofsuccess before the BIA. While OPLA attorneys may reserve appeal to ensure the articulation ofa fully reasoned decision by an IJ to help inform whether the appeal should ultimately be perfected, OPLA attorneys may also waive appeal, where appropriate, in the interest ofjudicial efficiency and in recognition of limited resources.

OPLA Field Locations generally coordinate appellate advocacy before the BIA with the Immigration Law and Practice Division (ILPD)..23 OPLA Field Locations and ILPD should continue to work together, along with any other relevant OPLA HQ divisions, to craft strong and nationally consistent appellate work product. Again, in committing OPLA resources to perfecting appeal and drafting appellate pleadings, Field Locations and ILPD should focus their efforts on presumed priority cases. Furthermore, to ensure efficiency in litigation, OPLA attorneys should generally limit briefing schedule extension requests before the BIA and should not request briefing extensions in detained matters without prior approval from a supervisor. However, it is permissible to agree to briefing extension requests filed by non-detained noncitizens whose cases are not presumed priorities.

VII. Joining in Motions for Relief and Motions to Reopen and Entering Stipulations

In order to conserve resources and expedite resolution of a case- as well as where doing so would fulfill the duty to do justice and achieve the best outcome- OPLA attorneys have the discretion to join motions for relief (oral or written), consistent with any local guidance issued by their respective Chief Counsel. An OPLA attorney should be satisfied that the noncitizen qualifies for the reliefsought under law and merits reliefas a matter ofdiscretion or qualifies

22 ChiefCounsel should review existing local practice guidance to ensure that it confonns to current interim enforcement priorities and amend such guidance where necessary. Similarly, any new local practice guidance should conform to this memorandum and the presumed priorities.

23 See Gwendolyn Keyes Fleming, Promoting Excellence in OPLA ‘s Advocacy Before the Board o fimmigration Appeals (Feb. 22, 2016); Email Message from Kenneth Padilla and Adam Loiacono, Final Rule – Appella..t.,e,,.,..,,,,._ _,

Procedures and Decisional Finality in Immif!ration Proceedinf!s; Administrative Closure (Jan. 22, 2021).l(b)(S) b)(S)

(b)(S) IFurther, special procedures apply in the context ofnational security and human rights violator cases. See Email Message from Rjah Ramlogan, OPLA Supplemental Guidance on the Proper Handling ofNational Security and Human Rights Violator Cases (May 28, 2015), as supplemented and modified by OPLA Memorandum, Proper Handling o f OPLA National Security (NS) Cases (May 21, 2015) and OPLA Memorandum, Proper Handling ofOPLA Human Rights Violator (HRV) Cases (May 2I, 20I5).

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  OPLA Guidance Regarding Civil Immigration Enforcement and Removal Policies and Priorities Page 12of13

24

under law for protection from removal when agreeing to such motions.. Such decisions to join

in motions should be made in a manner that facilitates the efficient operation ofOPLA Field Locations in immigration court. The same applies with respect to narrowing disputed issues through stipulation in order to promote fair and efficient proceedings.

OPLA intends to address in future.guidance when to join in motions to reopen cases with final removal orders. In the meantime, OPLA should continue addressing requests for joint motions to reopen on a case-by-case basis, giving favorable consideration to cases that are not priorities and where dismissal would be considered under Section V, supra.

VIII. Bond Proceedings

OPLA attorneys appearing before EOIR in bond proceedings must follow binding federal and administrative case law regarding the standards for custody redeterminations. 25 OPLA attorneys should also make appropriate legal and factual arguments to ensure that DHS’s interests, enforcement priorities, and custody authority are defended. In particular, in bond proceedings OPLA attorneys should give due regard to custody determinations made by an authorized immigration officer pursuant to 8 C.F.R. § 236. l(c)(8), while not relinquishing the OPLA attorney’s own responsibility to consider and appropriately apply the factors and considerations set forth in the Interim Memorandum, the Johnson Memorandum, the Maher Memorandum, and this guidance. Where a noncitizen produces new information that credibly mitigates flight risk or danger concerns, OPLA attorneys have discretion to agree or stipulate to a bond amount or other conditions of release with a noncitizen or their representative, and to waive appeal of an IJ’s order redetermining the conditions ofrelease in such cases..26

24 See, e.g., INA §§ 208 (asylum), 240A(a) (cancellation of removal for certain pennanent residents), 240A(b) (cancellation of removal and adjustment of status for certain nonpermanent residents), 240B (voluntary departure), 245 (adjustment ofstatus), 249 (registry). Additionally, OPLA attorneys represent DHS in cases where noncitizens apply for withholding of removal under INA section 241(b)(3) and protection under the regulations implementing U.S. obligations under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). See, e.g. , 8 C.F.R. §§ 1208.16-.18. Withholding and CAT protection both impose significant burdens ofproof(i.e., qualifying mistreatment must be “more likely than not” to occur). When a noncitizen moves to reopen their proceedings to pursue such non-discretionary protection, and the motion is supported by evidence that strongly suggests the noncitizen will be able to meet their burden, OPLA attorneys should ordinarily not oppose reopening and can also consider joining in such motions, as resources permit

25 See, e.g., Matter ofR-A-V-P-, 27 l&N Dec. 803, 804-05 (BIA 2020) (assessing whether respondent had met burden to demonstrate that he did not pose a risk of flight in INA section 236(a) discretionary detention case); Matter ofSiniausl«is, 27 I&N Dec. 207 (BIA 2018) (addressing interplay between flight risk and dangerousness considerations in INA section 236(a) discretionary detention case involving recidivist drunk driver); Matter of Kotliar, 24 l&N Dec. 124 (BIA 2007) (discussing general parameters of INA section 236(c) mandatory detention).

26 DHS and EOIR regulations recognize that, as a prerequisite for even being considered for discretionary release by an ICE officer under INA section 236(a), a noncitizen “must demonstrate to the satisfaction ofthe officer that such release would not pose a danger to property or persons, and that the [noncitizen] is likely to appear for any future proceeding.” 8 C.F.R. §§ 236.1(c)(8), 1236.l(c)(S) (emphasis added). Additionally, prior to agreeing to non­ monetary conditions of release, OPLA attorneys should consult with their local ERO Field Offices to ensure that such conditions are practicable (e.g., GPS monitoring, travel restrictions).

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  OPLA Guidance Regarding Civil Immigration Enforcement and Removal Policies and Priorities Page 13 of13

IJ custody redetermination decisions that are factually or legally erroneous are subject to appeal to the BIA. Decisions on whether to appeal or to continue to prosecute an appeal should be guided by the presumed priorities and the sound use of finite resources. See Section VI, supra. It may also be appropriate for an OPLA Field Location to seek a discretionary or automatic stay under 8 C.F.R. § 1003.l 9(i) in conjunction with a DHS bond appeal, particularly where issues of public safety are implicated. OPLA Field Locations should work closely with ILPD and other relevant OPLA HQ divisions to identify instances where use ofthis authority may be warranted..27

IX. Responding to Inquiries

Each OPLA Field Location should maintain email inboxes dedicated to receiving inquiries related to this memorandum, including requests for OPLA to favorably exercise its discretion, and socialize the existence and use ofthese mailboxes with their respective local immigration bars including non-governmental organizations assisting or representing noncitizens before EOIR. OPLA Field Locations and sub-offices should strive to be as responsive to such inquiries as resources permit.

X. Oversight and Monitoring

This memorandum serves as interim guidance, and OPLA’s experience operating under this guidance will inform the development of subsequent guidance aligning with the outcome of the comprehensive review directed by the Interim Memorandum. It is therefore critical that prosecutorial discretion decision-making information be promptly and accurately documented in PLAnet and that SOPs be implemented to ensure consistent PLAnet recordkeeping. Field Legal Operations (FLO) should issue such SOPs within two weeks ofthis memorandum. FLO’s regular review ofPLAnet and the SOPs will form the basis ofrecommendations on process improvements, if and as necessary.

Official Use Disclaimer

This memorandum, which may contain legally privileged information, is intended For Official Use Only. It is intended solely to provide internal direction to OPLA attorneys and staff regarding the implementation of Executive Orders and DHS guidance. It is not intended to, does not, and may not be relied upon to create or confer any right or benefit, substantive or procedural, enforceable at law or equity by any individual or other party, including in removal proceedings or other litigation involving DHS, ICE, or the United States, or in any other form or manner whatsoever. Likewise, this guidance does not and is not intended to place any limitations on DHS’s otherwise lawful enforcement of the immigration laws or DHS’s litigation

prerogatives.

27 Existing OPLA guidance on automatic and discretionary stays remains in effect. See, e.g., Barry O’Melinn, Revised Proceduresfor Automatic Stay ofCustody Decisions by Immigration Judges (Oct. 26, 2006).

FOR OFFICIAL USE ONLY

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https://www.opn.ca6.uscourts.gov/opinions.pdf/

21a0127p-06.pdf

Garcia-DeLeon v. Garland, 6th Cir., 06-11-21, published

PANEL: MOORE, CLAY, and STRANCH, Circuit Judges.

KEY QUOTE:

Here, we squarely confront this question and conclude that 8 C.F.R. § 212.7(e)(4)(iii), in conjunction with 8 C.F.R. §§ 1003.10(b) and 1003.1(d)(1)(ii), provides IJs and the BIA the authority for administrative closure to permit noncitizens to apply for and receive provisional unlawful presence waivers. Administrative closure is “appropriate and necessary” in this circumstance for the disposition of Garcia’s immigration case. Absent administrative closure, Garcia and other noncitizens in removal proceedings who are seeking permanent residency would be unable to apply for a provisional unlawful presence waiver despite the authorizing regulation.

Permitting administrative closure for the limited purpose of allowing noncitizens to apply for provisional unlawful presence waivers pursuant to 8 C.F.R. § 212.7(e)(4)(iii) will not lead to non-adjudication of immigration cases. Thus, the concern raised in Hernandez-Serrano that a general authority to grant administrative closure results in non-adjudication of immigration cases is not present. Administrative closure for the purpose of applying for a provisional unlawful presence waiver “bring[s] an end to the removal process” and permits “the non-citizen [to] voluntarily depart the U.S. for an immigrant visa appointment abroad.” Pet. Br. at 14. Generally, a noncitizen will, upon USCIS’s approval of their provisional unlawful presence waiver, seek to recalendar and terminate their removal proceedings. See, e.g., Romero, 937 F.3d at 287 (“Romero advised that if his case were administratively closed, then once the waiver had been approved, he intended to move to re-calendar and terminate removal proceedings so that he could then go through the consular process in Honduras.”); see also Ariel Brown, Immigr. Legal Res. Ctr., I-601A Provisional Waiver: Process, Updates, and Pitfalls to Avoid, at 7 (June 2019), https://www.ilrc.org/sites/default/files/resources/i- 601a_process._updates._and_pitfalls_to_avoid_june_2019.pdf (advising noncitizens to move to recalendar and then terminate their removal proceedings upon approval of their provisional unlawful presence waiver or upon receiving their immigrant visa). 

**********

After five months, John Trasvina is the first Biden Administration senior official in to take any responsible, practical steps to deal with the out of control Immigration Court backlog of 1.3 million that continues to grow under Garland’s flailing non-leadership at DOJ. But, he can’t do it by himself.

Without some progressive reforms at EOIR (and I’m NOT talking about an ill-thought-out uncoordinated “Dedicated Docket” or putting more Barr picks on the already compromised Immigration Bench, both of which are likely to build backlog and further reduce quality from its already “sub-basement levels”), the backlog and systemic denials of due process in Garland’s failed Immigration Courts will continue to grow.

That means some new progressive leadership at EOIR and some progressive judges at both the trial and appellate levels. Judges who know how to “leverage” PD with recalcitrant attorneys on both sides.

It also requires an immediate recession by Garland of Sessions’s abominable precedent Matter of Castro-Tum that has been panned by experts and rejected, at least in some form, by every Circuit that has considered it. Additionally, as a practitioner just reminded me, it will depend on whether Trasvina has the will, status, and power to force compliance on what are likely to be some resistant ICE Chief Counsels and Field Office Directors. In the past, local DHS officials have sometimes simply ignored or undermined PD policies with which they disagreed. So, stay tuned!

The quote from the Trasvina memo in the headline above comes from Matter of S-M-J-, 21 l&N Dec. 722, 727 (BIA 1997) (en banc), a leading “Schmidt BIA” case! Compare this with the White Nationalist absurdist nonsense put out by Sessions about prosecuting every case, no matter how absurd, marginal, or counterproductive, to a conclusion. Sessions spewed forth total, unadulterated BS! 💩

No, and I mean NO, other law enforcement agency in America (save the Trump DHS) operates in such an irresponsible, dishonest, and unrealistic manner! Particularly one whose bad policies and lack of self-restraint helped build a largely unnecessary backlog of 1.3 million cases. Indeed, according to the latest TRAC report, a simply astounding 96% of pending Immigration Court cases involve individuals without criminal charges! https://trac.syr.edu/immigration/quickfacts/?category=eoir. This suggests that with competent  leadership at DOJ and EOIR the backlog could be, and already should have been, dramatically slashed without adversely affecting ICE’s legitimate enforcement priorities!

“The  government wins when justice is done.” Wow! What a novel idea! Sounds like something right out of one of my old speeches to newly-hired INS prosecutors when I was the Deputy General Counsel at INS.

Probably, no coincidence that BIA Appellate Judge Michael J. Heilman, who wrote S-M-J-, once worked with me at INS General Counsel (although, as the record will show, by the time we both became “independent appellate judges” at a BIA that for a brief time functioned more like a “real court of independent experts” — as opposed to the current “deportation railroad” —  our views often diverged).

The 3rd, 4th, 6th, and 7th Circuits have rejected Sessions’s, malicious, racist, incorrect and idiotic, backlog-building decision in Castro-Tum. At the time of the Trasvina memo it appeared that the 6th Circuit was “trending in favor of” Castro-Tum, but the more recent 6th Circuit case featured above emphatically rejects Castro-Tum as applied to those seeking “provisional waivers.” 

So, the 6th is a little confusing. As I read it, there is no Administrative Closing for those approved for SIJS status and waiting for numbers. But, Administrative Closing is available for a “provisional waiver.” This doesn’t make any sense to me. But, what really doesn’t make sense is the unnecessary confusion caused by Garland’s failure to act and his continuation of improper White Nationalist, anti-due process, “worst practices” instituted by his Trumpist predecessors. 

To my knowledge, no Circuit has endorsed Castro-Tum in its entirety. Yet, Garland inexplicably and mindlessly has neither vacated Castro-Tum nor has he directed OIL to stop defending this legally incorrect, backlog-building, due-process-killing “Sessions-Miller” bogus “precedent.” “Part IV” of the Trasvina memo describes the unnecessary confusion and potential for more “Aimless Docket Reshuffling” caused by Garland’s failure to rescind Castro-Tum and reinstate “Administrative Closing” as an essential docket management (and due process) tool in Immigration Court.

Trasvina “gets it” (at least so far). Garland, Monaco, Gupta, Clarke, not so much! Maybe Trasvina should have been the AG!

As a practitioner recently put it:  “Repubs are bold, Dems are wimps when it comes to EOIR!” To date, Garland, Monaco, Gupta, and Clarke seem determined to follow in the footsteps of their ineffective predecessors! If they don’t get smarter, braver, bolder, and much more aggressively progressive, they will continue to fail American democracy in our hour of great need!

🇺🇸🗽⚖️Due Process Forever!

PWS

06-05-21

⚖️🗽🧑🏽‍⚖️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

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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 NaggarHere is a link to the audio of the oral argument.]

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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!]

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

  • 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

🛡⚔️⚖️ADVENTURES OF THE ROUND TABLE: Latest Amicus Brief To Supremes Weighs In On “Stop Time Rule” — Niz-Chávez v. Barr — Many Thanks to The Pro Bono Stars  @ Gibson Dunn!

Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
Knightess
Knightess of the Round Table

Niz-Chavez Amicus Brief TO FILE

No. 19-863 IN THE

    _______________

AGUSTO NIZ-CHAVEZ,

v.

WILLIAM P. BARR, ATTORNEY GENERAL,

Respondent.

                   _______________

On Writ Of Certiorari

To The United States Court of Appeals For the Sixth Circuit _______________

BRIEF OF THIRTY-THREE FORMER IMMIGRATION JUDGES AND MEMBERS OF THE BOARD OF IMMIGRATION APPEALS

AS AMICI CURIAE

IN SUPPORT OF PETITIONER _______________

RICHARD W. MARK

Counsel of Record

AMER S. AHMED

TIMOTHY SUN

DORAN J. SATANOVE

GIBSON, DUNN & CRUTCHER LLP 200 Park Avenue

New York, NY 10166 (212) 351-4000 rmark@gibsondunn.com

Counsel for Amici Curiae 

INTEREST OF AMICI CURIAE 

1

1

Amici curiae are thirty-three former immigration judges and members of the Board of Immigration Ap- peals (“BIA” or “Board”).2

Amici curiae have dedicated their careers to the immigration court system and to upholding the immi gration laws of the United States. Each is intimately familiar with the functioning of immigration courts and is invested in improving the fairness and effi- ciency of the United States immigration scheme. Amici curiae’s extensive experience adjudicating im- migration cases provides a unique perspective on the procedures and practicalities of immigration proceed- ings.

SUMMARY OF ARGUMENT

The straightforward question this case presents is one of enormous practical significance: Must the ini- tial written notice served on noncitizens to commence their removal proceedings provide—in one docu- ment—the “time and place at which the proceedings will be held” (along with charges and other specified information) in order to satisfy the requirements of 8 U.S.C. § 1229(a), or does the statute allow the govern- ment to cobble together the required elements of a “notice to appear” from multiple documents, issued at different times, some containing misinformation, and

1 All parties have consented to the filing of this brief. Amici state that this brief was not authored in whole or in part by coun- sel for any party, and that no person or entity other than amici or their counsel made a monetary contribution intended to fund the preparation or submission of this brief.

2 The appendix provides a complete list of signatories.

 

2

none of which alone contains all of the statutorily re- quired information?

Reversing the Sixth Circuit and holding that § 1229(a)’s requirements must be included in a single document will greatly reduce the procedural and bu- reaucratic errors attendant in a two-step process that detrimentally impact thousands of noncitizens law- fully seeking to remain in this country.

I. For noncitizens applying for cancellation of re- moval, service of a valid “notice to appear” under § 1229(a) triggers the so-called “stop-time” rule, which terminates the period of continuous presence required for cancellation eligibility. See 8 U.S.C. §§ 1229b(d)(1), 1229b(a)(2), 1229b(b)(1)(A). Separately but relatedly, for noncitizens ordered removed in ab- sentia, whether that “severe” penalty, Pereira v. Ses- sions, 138 S. Ct. 2105, 2111 (2018), is proper depends on whether the notice served on the noncitizen satis- fied the requirements of §1229(a). 8 U.S.C. § 1229a(b)(5)(A). This Court’s decision will thus touch not only those like Petitioner who are seeking cancel- lation of removal, but also those who may not even have been provided sufficient notice to appear for their removal hearings—and potentially severely punished as a result.

II. The Sixth Circuit’s ruling approves a two-step notice process that involves: (i) the Department of Homeland Security (“DHS”) serving on a noncitizen a putative notice to appear lacking time-and-place in- formation (or, perhaps worse, that includes fake time- and-place information), and (ii) only after that notice to appear is filed and docketed with the immigration court, the immigration court separately sending a “no- tice of hearing” supplying the time-and-place infor- mation to the noncitizen.

3

Under this two-step process an initial notice lack- ing § 1229(a)’s time-and-place information languishes in a proverbial “No Man’s Land” until the notice is filed with an immigration court and entered into the court’s computer systems—a process that can take years. This delay increases the risk of procedural er- rors and lost filings, such as crucial Change of Address forms, which can result in noncitizens never receiving time-and-place information at all—potentially result- ing in wholly unjustified in absentia removal orders.

Sorting through those issues adds to immigration judges’ fact-finding burdens by requiring them to di- vert attention from the merits of a case to investigate collateral issues like whether time-and-place infor- mation was provided in a second document; whether that document was properly served; and whether a fil- ing like a Change of Address form was submitted but ultimately lost in “No Man’s Land.” When coupled with the pressure to complete cases—even if it means churning out in absentia removal orders without fully considering whether the noncitizen received adequate time-and-place notice—the result may be an increase in unwarranted removal orders.

These problems would be ameliorated if the gov- ernment simply provided the actual time-and-place information in a single document as required by § 1229(a).

III. Requiring DHS to work with the Executive Office of Immigration Review (“EOIR”) to obtain time- and-place information before serving a notice to ap- pear—and including such information in that docu- ment, as § 1229(a) and Pereira require—is practical and within the government’s capabilities.

4

A single-step notice process, consistent with this Court’s ruling in Pereira, furthers the due process ax- iom that a party charged to defend against a legal pro- ceeding must receive notice of the time and place of the proceeding and an opportunity to be heard.

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

Read the complete brief, with better formatting, at the link!

Of course we couldn’t have done this without the amazing talent and assistance of Amer S. Ahmed and the rest of the “Pro Bono All-Star Team” 🎖🏆 @ Gibson Dunn! Just another example of the essential contribution of pro bono lawyers to literally saving our legal system that has been featured on “Courtside” this week!

Due Process Forever!

PWS

08-14-20

MORE DEADLY ☠️ MISTAKES: 6th Cir. Finds BIA Ignored Relevant Evidence In Trying To Deny Asylum To Russian Whistleblower — Skripkov v. Barr

Dan Kowalski reports from LexisNexis Immigration Community:

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

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca6-on-asylum-russia-corruption-skripkov-v-barr#

CA6 on Asylum, Russia, Corruption: Skripkov v. Barr

Skripkov v. Barr

“Andrei Skripkov, a citizen of Russia, seeks review of a decision by the Board of Immigration Appeals (BIA) upholding an Immigration Judge’s (IJ’s) denial of his application for asylum and the withholding of removal. Skripkov asserted in his application that he was persecuted in his home country on account of his political opinion. He specifically contended that his anticorruption whistleblowing activities motivated Russian officials to persecute him. The IJ and the BIA, on the other hand, found that the officials were motivated solely by their pecuniary interest in furthering a corrupt scheme disrupted by Skripkov. In his petition for review, Skripkov argues that the BIA erred in disregarding evidence that he would be criminally prosecuted for his political opinion if he is returned to Russia. For the reasons set forth below, we GRANT Skripkov’s petition for review and REMAND the case to the BIA for further proceedings consistent with this opinion.”

[Hats off to Brenna D. Duncan!]

pastedGraphic.png

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

When the objective is to reject, not protect, mistakes are inevitable. This is just the tip of the iceberg. Most folks whose lives are being chewed up and spit out by the “designed to be unjust” Immigration Court system don’t have the good fortune to be represented by Brenna D. Duncan or someone of her caliber. 

Indeed, under the ongoing illegal travesty that now passes for “justice” in America, most legal asylum seekers are turned away at the border without any hearing or meaningful process at all.

Interestingly, Brenna D. Duncan, a rising superstar at the international commercial law firm of Perkins Coie appears to have practiced primarily in the area of commercial litigation. Yet, she clearly understands immigration and human rights law better than the Immigration Judge and the BIA Appellate Immigration Judges involved in this case. 

That’s why actual experience representing immigrants and asylum seekers is such a critical qualification for good Immigration Judges at both the trial and appellate levels as well as being something that should be a factor in appointing future Article III Judges at all levels right up to and particularly including the Supremes. Years of one-sided prosecutorial or law enforcement experience is often no substitute for the “real deal” of experience understanding immigrants and asylum seekers from their perspective.

The current Immigration Court system is intentionally and fatally skewed against asylum seekers, immigrants, due process, and fundamental fairness. Until that changes, equal justice under law will continue to be a cruel, unachieved illusion in our American justice system.

Due Process Forever!

PWS

07-22-20

“PEREIRA II” — SUPREMES TAKE ANOTHER “STOP TIME” IMMIGRATION CASE —  Niz-Chavez v. Barr

Amy Howe
Amy Howe
Freelance Journalist, Court Reporter
Scotusblog

https://www.scotusblog.com/2020/06/court-grants-immigration-case/

Amy Howe reports for SCOTUS Blog:

Court grants immigration case

This morning the Supreme Court issued orders from the justices’ private conference last week. The court added one new case to its merits docket for the term that begins in October. The justices once again did not act on two groups of high-profile petitions – one involving gun rights and the other involving qualified immunity – that they considered last week.

With the grant in Niz-Chavez v. Barr, the justices added another immigration case to their docket for next term. At issue in the case is the kind of notice that the government must provide to trigger the “stop-time rule,” which stops noncitizens from accruing the time in the United States that they need to become eligible for discretionary relief from deportation. Congress passed the “stop-time rule” to keep noncitizens from taking advantage of lengthy delays in deportation proceedings to continue to accrue time. Under the rule, a noncitizen’s time in the United States, for purposes of relief from deportation, ends when the government sends him a “notice to appear” containing specific information about a scheduled removal proceeding. The question that the justices agreed to decide today is whether all the necessary information must be provided in a single document in order to trigger the stop-time rule, as Agusto Niz-Chavez, who came to the United States from Guatemala in 2005, contends, or whether the government can trigger the rule by providing the information in multiple documents.

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

Our Round Table has filed amicus briefs on this issue in a number of similar cases, although not in this particular case, which originated in the 6th Circuit.

At issue here is the BIA’s precedent in Matter of Mendoza-Hernandez, 27 I. & N. Dec. 520 (BIA 2019). There, in a now-rare en banc decision, the BIA majority basically “flicked off” the Supremes’ decision in Pereira v. INS,  138 S. Ct. 2105 (2018) and allowed the DHS to remedy a defective statutory Notice to Appear (“NTA”) with a later-issued EOIR notice of hearing providing the missing information to “fill in the blanks” from the original defective notice. 

In an even more unusual and potentially career-shortening move, six of the BIA’s then 15 Appellate Immigration Judges filed a strongly-worded dissent accusing their majority colleagues of ignoring both the words of the statute and the Court’s Pereira decision. Perhaps not surprisingly, three of the dissenting judges have since retired from the BIA and a fourth, the Vice Chair, was passed over for Acting Chair in a highly unusual personnel move by the DOJ, which controls the BIA. (One of the primary reasons for having a designated “Vice Chair” is to be the “Acting Chair” in the absence of the Chairman.) In their places, Barr has appointed some of the most notorious hard-line asylum denying Immigration Judges in the nation.

The Supremes have thus far tiptoed around the glaring unconstitutionality of a so-called “appellate tribunal” that is appointed, wholly controlled by, and answers to the chief prosecutor, the Attorney General. Not surprisingly, upon discovering the Constitution-nullifying power of a “captive court system,” that is not a court at all under any common understanding of the term, the Administration has leveraged it to the max as a tool for their White Nationalist anti-immigrant agenda. Indeed, all the recent BIA and Attorney General precedents have ruled in favor of the DHS position, even where statutory language, Article III court rulings, prior precedents, and common sense strongly supported the opposite results. 

And, many Courts of Appeals have continued to fictionalize that the highly politicized and “weaponized” BIA is an “expert tribunal” entitled to “Chevron deference.” Any true immigration law expert would say that proposition is absurd. Yet, it conveniently furthers the causes of  both “judicial task avoidance” and the White Nationalist agenda of the Administration.

Because the BIA now occupies itself not with fair and impartial, expert decision-making, but mostly with keeping the “deportation express” running and insuring that DHS prevails over the legal claims of migrants and asylum seekers to fair and humane treatment under the law, the Supremes are finding themselves in the middle of the “statutory and regulatory nitty gritty” of immigration law that was supposed to be the province of a competent and impartial BIA.

While that has occasionally, as in Pereira, worked to the advantage of individuals seeking justice, for the most part, the Supremes have been willing enforcers of the Administration’s abrogation of immigration laws without Congressional participation and “Dred Scottification” of “the other” in violation of our Constitution, and indeed, in violation of both international conventions and fundamental human decency.

Think of how much better and more efficiently the immigration system could run with a constitutionally-required independent Immigration Court utilizing fair and impartial judges selected on the basis of expertise and reputation for fairness and scholarship rather than commitment to DHS enforcement goals.  Think of how much better off our society would be if the Supremes stood up for equal justice for all, rather than enabling a far-right would-be authoritarian scofflaw regime following a  racially-biased agenda of dehumanization, degradation, and deportation.

Due Process Forever!

PWS

06-08-20

RIGGED “COURTS” – BIA’S ANTI-ASYLUM BIAS “OUTED” AGAIN, AS 6TH CIR. BLASTS BOGUS DENIAL OF ASYLUM TO GUATEMALAN DOMESTIC VIOLENCE SURVIVOR – Says Sessions’s “Reasoning” in A-B- “Abrogated” By Judge Sullivan’s Ruling in Grace v. Whitaker — Juan Antonio v. Barr

 

https://www.opn.ca6.uscourts.gov/opinions.pdf/20a0156p-06.pdf

 

Juan Antonio v.  Barr, 6th Cir., 05-19-20, published

 

PANEL: COLE, Chief Judge; BOGGS and GIBBONS, Circuit Judges

OPINION BY: Judge Gibbons

CONCURRING OPINION: Judge Boggs

KEY QUOTES:

Footnote 3:

3Matter of A-R-C-G was overruled by Matter of A-B, which held that the Board in Matter of A-R-C-G- did not conduct a rigorous enough analysis in its determination that the particular social group was cognizable. See Matter of A-B-, 27 I. & N. Dec. 316, 331 (A.G. 2018) (noting that because DHS conceded that particular social group was cognizable, “the Board performed only a cursory analysis of the three factors required to establish a particular social group”). Our sister circuits have determined that this change counsels remand. See Padilla- Maldonado v. Att’y Gen. U.S., 751 F. App’x 263, 268 (3d Cir. 2018) (“While the overruling of A-R-C-G- weakens [the applicant’s] case, it does not automatically defeat her claim that she is a member of a cognizable particular social group. As we remand to the BIA to remand to the IJ, the IJ should determine whether [the applicant’s] membership in the group . . . is cognizable . . ..”); Moncada v. Sessions, 751 F. App’x 116, 118 (2d Cir. 2018) (“This Court, like the BIA, applies the law as it exists at the time of decision. And, where, as here, intervening immigration decisions from the executive branch alter the applicable legal standards, we have previously exercised our discretion to remand the matter to the BIA to apply the new standards in the first instance. Recognizing the wisdom of this practice, we take the same tack here and remand this case ‘for the BIA to interpret and apply the standards set forth in [Matter of A-B-] in the first instance.’” (quoting Biao Yang v. Gonzales, 496 F.3d 268, 278 (2d Cir. 2007) (internal citations omitted)).

However, Matter of A-B- has since been abrogated. See Grace v. Whitaker, 344 F. Supp. 3d 96 (D.D.C. 2018). Grace found that the policies articulated in Matter of A-B- were arbitrary, capricious, and contrary to law. See id. at 126–27 (holding that there is no general rule against claims involving domestic violence as a basis for membership in a particular social group and that each claim must be evaluated on an individual basis under the statutory factors). The district court’s decision in Grace is currently on appeal to the D.C. Circuit. We acknowledge that we are not bound by Grace but find its reasoning persuasive. Because Matter of A-B- has been abrogated, Matter of A-R-C-G- likely retains precedential value. But, on remand, the agency should also evaluate what effect, if any, Matter of A-R-C-G- and Grace have had on the particular social group analysis. See Bi Xia Qu, 618 F.3d at 609 (“When the BIA does not fully consider an issue, . . . the Supreme Court has instructed that a reviewing court ‘is not generally empowered to conduct a de novo inquiry into the matter being reviewed.’ Rather, ‘the proper course, except in rare circumstances, is to remand to the [BIA] for additional investigation or explanation.’” (quoting Gonzales v. Thomas, 547 U.S. 183, 186 (2006))).

. . . .

When an asylum claim focuses on non-governmental conduct, the applicant must show that the alleged persecutor is either aligned with the government or that the government is unwilling or unable to control him. See Khalili, 557 F.3d at 436. An applicant meets this burden when she shows that she cannot “reasonably expect the assistance of the government” in controlling her perpetrator’s actions. Al-Ghorbani, 585 F.3d at 998. For example, in In re S-A, the Board found that an applicant was eligible for asylum when she suffered domestic abuse at the hands of her father. In re S-A-, 22 I. & N. Dec. 1328 (BIA 2000). Relying on evidence showing that “in Morocco, domestic violence is commonplace and legal remedies are generally unavailable to women,” and that “‘few women report abuse to authorities’ because the judicial procedure is skewed against them,” the Board held that “even if the respondent had turned to the government for help, Moroccan authorities would have been unable or unwilling to control her father’s conduct.” Id. at 1333, 1335 (quoting Committees on International Relations and Foreign Relations, 105th Cong., 2d Sess., Country Reports on Human Rights Practices for 1997 1538 (Joint Comm. Print 1998)).

Here, both the immigration judge and Board agreed that the beatings, rape, and threats Maria suffered were severe enough to constitute persecution, but that she failed to show that the Guatemalan government was unwilling or unable to control Juan. In support of its conclusion,

No. 18-3500 Juan Antonio v. Barr Page 16

the Board noted that the government issued a restraining order against Juan, the mayor fined Juan for beating their daughter, and that Maria and their children were able to remain in their home for the year before she left Guatemala. AR 5, BIA Decision. Maria argues on appeal that the Board’s decision was not supported by substantial evidence on the record as a whole. We agree with her.

Taken as a whole, the record compels the conclusion that Maria cannot “reasonably expect the assistance of the government” in controlling Juan. Al-Ghorbani, 585 F.3d at 998. First, the Board’s conclusion that the restraining order effectively controlled Juan is clearly contradicted by the evidence. Maria testified that Juan “did not obey [the restraining order] because there [was] no police” and “[h]e wasn’t afraid” of any consequences, AR 180, Immigration Ct. Tr., and that at some time that year, Juan came to Maria’s home and beat their oldest child with his belt. She further testified that she went to the police station to file a complaint, but the police never investigated the crime. Second, the Board’s conclusion that “the respondent and her children were able to live legally in the family house” for a year does not paint an accurate picture of that year. AR 5, BIA Decision. The year was not a “period of calm,” as the Board characterized it, but rather, a year which affirmed that the Guatemalan government had not effectively gained control over Juan. Id at 5 n.2. Throughout the course of the year, Maria received threats that Juan “was going to kill [her], and if not[,] that he would pay someone to do something.” AR 188, Immigration Ct. Tr. Juan’s girlfriend also “began threatening [Maria] about once a week, yelling at [her] . . . that she and Juan would kill [her] if [she] didn’t move out of the house.” AR 332, I-589 Appl. In May 2014, Juan’s sister told Maria that “Juan had bought a gun and that he planned to kill [Maria].” Id. at 333. The events of that year indicate that the government had not effectively gained control over Juan.

Moreover, that Juan received a fine of approximately $200 for beating up their oldest child (from a judge who no longer works in town, at a courthouse that has since been destroyed) may indicate some willingness of the Guatemalan government to control Juan but it does not indicate its ability to do so. The concurrence points to the restraining order and fine as evidence

No. 18-3500 Juan Antonio v. Barr Page 17

Guatemala is willing to enforce its laws but may not always be successful.4 While the concurrence would emphasize what Guatemala did, it is more important to look at the numerous instances when the government failed to act or even respond as well as the harm the government failed to prevent. The death threats Maria received continued even after Juan was fined. And Juan’s purchasing of a gun—which ultimately led Maria to flee—came after Juan was fined. Moreover, the police failed to respond to Maria’s calls for help on two occasions when Juan came to Maria’s house and threatened her and/or their children. In reviewing this evidence, the immigration court opined that it “would be left to wonder if Juan intended to kill the respondent, the mother of his four children, why would he not have done so.” AR 70, Immigration Ct. Order. But it cannot be that an applicant must wait until she is dead to show her government’s inability to control her perpetrator.

The supplemental evidence regarding Guatemala’s country conditions corroborates that Maria could not “reasonably expect the assistance of the government” in controlling Juan’s actions. Al-Ghorbani, 585 F.3d at 998; see In re S-A-, 22 I. & N. Dec. 1328 (BIA 2000). The evidence Maria submitted shows that “[t]he systemic marginalization of indigenous communities . . . continues with no meaningful efforts by the government to overcome it.” AR 285, State of the World’s Minorities and Indigenous Peoples 2015—Guatemala. It also indicates that “[i]mpunity for perpetrators remain[s] very high,” AR 255, Country Reports on Human Rights Practices for 2016, and that for Mayan indigenous women, there is “increased vulnerability and gender-based violence . . . exacerbated by a weak state apparatus that struggles to implement laws and programming to protect these groups.” AR 274, Guatemala Struggles to Protect Women Against Endemic Violence. Indigenous Mayan women are particularly unable to seek help from the government because they speak a different language from most of the country’s authorities. To be sure, the supplemental material does not indicate no willingness on behalf of the Guatemalan government—indeed, the country has taken some steps to codify laws prohibiting violence against women—but rather, the material reinforces the country’s lack of

4The concurrence’s reference to the enforcement of domestic abuse law violations in this country is both inapt and irrelevant.

 

No. 18-3500 Juan Antonio v. Barr Page 18 resources and infrastructure necessary to protect indigenous Mayan women from their perpetrators.

Further, the Board’s conclusion that Maria did not meet her burden of showing that the Guatemalan government was “helpless” relies on a standard that has since been deemed arbitrary and capricious. AR 5, BIA Decision. The United States District Court for the District of Columbia found that the “complete helplessness” standard is arbitrary, capricious, contrary to law, and “not a permissible construction of the persecution requirement.” Grace v. Whitaker, 344 F. Supp. 3d 96, 130 (D.D.C. 2018).

Thus, the Board’s conclusion that Maria did not demonstrate that the Guatemalan government was unwilling or unable to control Juan is not supported by “reasonable, substantial, and probative evidence on the record considered as a whole.” Zhao, 569 F.3d at 247 (quoting Koulibaly, 541 F.3d at 619). Maria’s testimony about her experiences, corroborated by supplemental evidence of the conditions for indigenous Mayan women in Guatemala, compels a contrary conclusion to that of the Board. See Mandebvu, 755 F.3d at 424. Based on the evidence in the record, Maria could not “reasonably expect the assistance of the government” in controlling Juan’s actions. Al-Ghorbani, 585 F.3d at 998. We therefore vacate the Board’s finding that Maria did not show that the government was unable or unwilling to protect her and remand so the agency can reconsider her application consistent with this opinion.

 

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Thanks to my Round Table colleague Judge Jeffrey Chase for spotting this decision and sending it my way.

And congratulations to Margaret Wong, Esquire, of Cleveland, OH, who represented the respondent so ably before the 6th Circuit. Margaret and the attorneys from her firm appeared before me numerous times during the many years that I was assigned to the Cleveland docket part-time from Arlington, with most of the hearings taking place by televideo.

Margaret W./ Wong
Margaret W./ Wong
Senior PartnerMargaret W. Wong & Associates LLC

The BIA’s bogus “helpless standard” came directly from Matter of A-B-Sessions’s unethical, legally incorrect, and misogynistic attempt to write female domestic violence victims from Central America out of refugee protections as part of his White Nationalist agenda. Judge Gibbons’s opinion found persuasive U.S. District Judge Sullivan’s (D. D.C.) conclusion in Grace v. Whitaker that Sessions’s A-B- atrocity was “arbitrary, capricious, and contrary to law.”  

This further confirms the problems of a politicized and weaponized Immigration Court system controlled by anti-asylum politicos. How many more “Marias” are out there who are arbitrarily denied protection by the Immigration Courts and the BIA, but lack the ability to obtain competent counsel to assist them and/or are not fortunate enough to have a Court of Appeals panel that takes their case seriously, rather than just “deferring” to the BIA? For example, the Fifth Circuit has “tanked” on the A-B- issue. And, today, the Trump regime is being allowed to turn away asylum seekers at the border in violation of law and without any meaningful opportunity whatsoever to present a claim.

Disgraceful as the BIA’s performance was in this case, worse happens every day in the broken Immigration Court system and the abusive, scofflaw enforcement system administered by the Trump regime. And those charged with putting an end to such blatant violations of law and human rights – the Article III Judiciary – have largely shirked their duty to put an end to this unconstitutional, illegal, unethical, and inhumane “bad joke” of a “court system” and to stop the regime’s illegal abrogation of U.S. asylum laws.

Due Process Forever!

PWS

05-19-20

 

 

 

EOIR WRONG AGAIN: Split 6th Cir. Says BIA Screwed Up Corroboration, Nexus Requirements In Mexican PSG Withholding Case — GUZMAN-VAZQUEZ v. BARR!

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

Dan Kowalski report from LexisNexis Immigration Community:

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca6-on-corroboration-social-group-guzman-vazquez-v-barr

CA6 on Corroboration, Social Group: Guzman-Vazquez v. Barr

Guzman-Vazquez v. Barr

“Manuel Guzman, a native and citizen of Mexico, petitions for review of the decision of the Board of Immigration Appeals (“BIA”) affirming an immigration judge’s denial of his application for withholding of removal. Because the IJ and BIA erred in failing to give Guzman an opportunity to explain why he could not reasonably obtain certain corroborative evidence, because substantial evidence does not support the Immigration Judge (“IJ”) and BIA’s determinations regarding the unavailability of evidence to corroborate Guzman’s claim about abuse by his stepfather, and because the BIA incorrectly required Guzman to demonstrate that his membership in a particular social group was “at least one central reason” for his persecution, we GRANT the petition for review, VACATE the BIA’s order, and REMAND for proceedings consistent with this opinion.”

[Hats off to R. Andrew Free!]

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PANEL: MERRITT, MOORE, and MURPHY, Circuit Judges.

OPINION: Judge Moore

DISSENT: Judge Murphy

In looking for ways to deny protection, the BIA continues to “blow the basics.” That’s going to continue to happen as long as EOIR is allowed to operate as a branch of DHS Enforcement rather than a fair-minded, impartial court system with true expertise and which grants needed protection in meritorious cases, rather than searching for specious “reasons to deny.”

No wonder the EOIR backlog is mushrooming out of control when those responsible for doing justice waste countless time and resources “manufacturing denials,” rather than just promptly granting relief in many meritorious cases.

PWS

05-18-20