🏴‍☠️ ADMINISTRATIONS CHANGE, BUT SCOFFLAW MISTREATMENT OF ASYLUM SEEKERS DOESN’T — US District Judge Jon S. Tigar Blows Away 💨 Biden Administration’s Bogus Asylum Rules — Again! — Round Table 🛡⚔️ Weighs In On Winning Side — Again! — Order Delayed Pending Filing of Appeal, So The Carnage Continues for Now!☠️

Border Death
Dem A.G. Merrick Garland’s indifference to asylum laws, racial justice, due process, and the reality of seeking asylum at the border has become astoundingly grotesque!                                This is a monument for those who have died attempting to cross the US-Mexican border. Each coffin represents a year and the number of dead. It is a protest against the effects of Operation Guardian. Taken at the Tijuana-San Diego border.
Tomas Castelazo
n order to comply with the use and licensing terms of this image, the following text must must be included with the image when published in any medium, failure to do so constitutes a violation of the licensing terms and copyright infringement: © Tomas Castelazo, www.tomascastelazo.com / Wikimedia Commons / CC BY-SA 3.0

 

EBSC III MSJ order

Here’s a report from Hon. “Sir Jeffrey” Chase of the Round Table:

Hi all: As you know, our group filed an amicus brief in East Bay Sanctuary v. Garland, challenging the new rules at the border that would make most of those unable to get an online appointment through an app ineligible to apply for asylum.

District Court Judge Jon Tigar just issued the attached order granting summary judgment to plaintiffs and denying defendants’ motion for summary judgment.

From Judge Tigar’s order:

“Congress granted the agencies authority to impose additional conditions on asylum eligibility, but only those consistent with section 1158…Two of the conditions imposed by the Rule have been previously found to be inconsistent with Section 1158…

The Court concludes that the Rule is contrary to law because it presumes ineligible for asylum noncitizens who enter between ports of entry, using a manner of entry that Congress expressly intended should not affect access to asylum. The Rule is also contrary to law because it presumes ineligible for asylum noncitizens who fail to apply for protection in a transit country, despite Congress’s clear intent that such a factor should only limit access to asylum where the transit country actually presents a safe option.”

The order is stayed for 14 days to allow the government to appeal.

Our group has once again helped make a difference in providing fairness and due process. Congrats to all.

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

Congrats to the plaintiffs and to my Round Table colleagues!

This was basically a blowout for the plaintiffs on all issues! The USG argument essentially was that complying with the law would be too difficult and/or politically unpopular. Therefore, they have chosen to violate the law and to use rather transparent pretexts (actually misrepresentations about the bogus “presumption”) to evade it. 

Really, folks, how do we have a Dem AG who 1) approves such complete legal nonsense; 2) advances essentially frivolous and disingenuous arguments in an attempt to defend the indefensible; and 3) can’t make the legal system for asylum work in a fair and legal manner at EOIR or DHS?

How immoral and intellectually dishonest are Garland’s arguments. Here’s one of my favorite passages from Judge Tigar’s opinion:

While they wait for an adjudication, applicants for asylum must remain in Mexico, where migrants are generally at heightened risk of violence by both state and non-state actors.

See, e.g., PC 32446–68 (2022 State Department report noting credible reports of gender-based violence against migrants; reports of migrants being tortured by migration authorities; “numerous instances” of armed groups targeting migrants for kidnapping, extortion, and homicide; and that asylum seekers and migrants were vulnerable to forced labor); PC 22839–42 (NGO report documenting violent crimes against 13,480 migrants in Mexico, by both state and non-state actors, between January 2021 and December 2022); PC 76248–87 (table of crimes summarized in preceding report); PC 21752–58 (2022 NGO report discussing gender-based violence in northern Mexico border cities, including against LGBTQI+ and Black migrants); PC 21610–11 (2022 NGO report concerning gender-based violence against Venezuelan women and LGBTIQ+ migrants in southern Mexico).16

16 In addition to these examples, the record is replete with additional documentation of the extraordinary risk of violence many migrants face in Mexico. See, e.g., PC 22129–30 (2023 news report documenting instances of kidnapping of asylum seekers in northern Mexico); PC 23247–50 (2022 news report quoting Chihuahua state police chief stating that “organized criminal gangs are financing their operations through migrant trafficking”); PC 23082 (2023 NGO report discussing treatment of migrants and asylum seekers); PC 20937–43 (2021 NGO report documenting kidnapping and extortion of Venezuelan migrants in Mexico); PC 29740–29744 (2021 NGO report documenting instances of rape, kidnapping, and other violence experienced by migrant women in Mexico); PC 75946–48 (2022 NGO report documenting violence against migrants in Mexico); AR 4881 (2022 NGO report noting that asylum seekers from Central America have been pursued across the border and found in southern Mexico by their persecutors).

Only somebody who avoids the border, has never represented asylum seekers there, and is impervious to facts and reality could make such outlandish arguments in favor of an outrageously deficient and illegal “policy.” Sounds like something out of the “Stephen Miller Playbook!” Why is it coming from a Dem AG?

🇺🇸Due Process Forever!

PWS

07-25-23

🛡⚔️ THE LEGEND OF THE ROUND TABLE CONTINUES TO GROW! — Making A Difference Even When The Results Are Not What We Wished For! — PLUS, “BONUS COVERAGE” OF THE “SUPER MOON,” COURTESY OF “SIR JEFFREY!”

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

“Sir Jeffrey” Chase reports:

9th Circuit Decision in U.S. v. Bastide-Hernandez

Hi all:Attached please find the published, en banc decision of the 9th Circuit issued yesterday in U.S. v. Bastide-Hernandez.As expected, the court held that the absence of a date and time of hearing does not deprive the Immigration Court of jurisdiction.

However, please note the concurring opinion of Judge Friedland, stating that although the court held that the issue is not jurisdictional, “there are strong argument for the contrary position,” adding that the Supreme Court may reach a different conclusion.

Judge Friedland also quoted our Round Table’s amicus brief at length, as follows:

“An amicus brief filed by former immigration judges elaborates on why it better serves clarity, efficiency, and due process to include the time and location of the hearing in an NTA in the first instance. As amici explain, incomplete initial notice documents create uncertainty both for noncitizens, who are left in the dark as to when and where a potentially life-changing proceeding will be held, and for immigration judges, who cannot be sure if a case can proceed. Amici also note that the Government’s notice-by- installment practice creates additional fact-finding obligations for immigration judges, who may need to look to multiple documents to determine whether informational gaps in the initial notice have been filled. And amici caution that, because immigration judges are already overburdened and face pressure to complete cases, ambiguities about notice may lead immigration judges to order noncitizens removed when they fail to show up at their hearings, even if the noncitizens never received notice of those hearings at all.”

I think that this lengthy reference demonstrates the importance of our work.

Best, Jeff

US v. Bastide-Hernandez

 

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

In the words of Ninth Circuit Judge Michelle Friedland (Obama appointee): “[I]t better serves clarity, efficiency, and due process to include the time and location of the hearing in an NTA in the first instance.” 

What if we had an EOIR where all judges at the trial and appellate levels and all senior administrators were unswervingly committed to due process, fundamental fairness, and best practices?

Instead, we have a dysfunctional organization where DHS’s wishes, perceived expediency, and keeping the “political bosses” happy (thus providing “job security”) triumphs over the public interest and the cause of justice. Currently, we’re “saddled” with a broken system that sees Immigration Court as a “soft deterrent” rather than a dispenser of justice could actually make our immigration, human rights, and justice system run more smoothly by applying fair procedures and “best interpretations.” That would facilitate the legal admission of many more migrants, while starting to “disempower smugglers,” cut backlog, discourage poor practices at DHS Enforcement, promote consistency, and keep many disputes that should be resolved in favor of respondents out of the Article IIIs!

Better, more reasonable administrative precedents that adhered to the proper interpretations of asylum and protection laws and provided positive guidance on how to apply them to recurring situations would also “leverage” the Asylum Office by allowing many more cases to be granted at the first level. As long as the current lousy BIA precedents prevail, far too many cases will just be denied at the AO level and referred to Immigration Court — making it a colossal waste of time. “So-called streamlining” will only work if it results in significantly more AO grants of protection!

We “win some, lose some.” But, our Round Table’s cause is justice; we’re not going to give up until this system makes the long overdue, radical personnel, procedural, attitude, and “cultural” changes necessary to become the “best that it can be!” 

That means fulfilling the Immigration Courts’ once and future vision of “through teamwork and innovation become the world’s best tribunals guaranteeing fairness and due process for all.” 

Bonus Coverage:

“Sir Jeffrey’s” skills aren’t confined to the legal arena. Here are some pictures he took from his balcony of last night’s “Super Moon:”

Super Moon
“Super Moon”
July 13, 2022
By Hon. Jeffrey S. Chase

🇺🇸 Due Process Forever!

PWS

07-14-22

  

⚔️🛡⚖️🗽👨🏻‍⚖️🧑🏽‍⚖️🇺🇸 ROUND TABLE AGAIN STEPS UP @ SUPREMES — Patel v. Garland: Issue = Judicial Review Of EOIR’s Non-Discretionary Decisions!

Knightess
Knightess of the Round Table

Here’s our amicus brief drafted by the pro bono “All-Star Team” of Richard W. Mark, Amer S. Ahmed, & Chris Jones @ Gibson, Dunn & Crutcher, LLP, NY:

1419000-1419434-20210907134938198_patel amicus brief

Our effort was featured in an article by Jennifer Doherty at Law360 for those with Law360 access.

More coverage here from Dan Kowalski over at LexisNexis Immigration Community:

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/supreme-court-amicus-briefs-filed-in-patel-v-garland

“Due Process Forever!”  Hmmm, where have I herd THAT before? Thanks, Dan, for all you do for the NDPA!

The American Immigration Council, the National Immigration Alliance, and the Law Professors, all representing a number of other organizations, also filed in behalf of the “good guys, truth, justice, and the American way,” in this case. The respondents are expertly represented by my friend and legendary immigration advocate Ira J. Kurzban, Esquire, of Kurzban Kurzban Tetzeli and Pratt PA.

Ira Kurzban ESQUIRE
Ira Kurzban ESQUIRE
Legendary American Immigration Lawyer

One could not imagine a group MORE in need of thorough, critical, independent Article III judicial review of its decisions than today’s dysfunctional EOIR! There, potentially fatal errors have been “institutionalized” and even “normalized” as just another “unavoidable” consequence of the anti-immigrant, “haste makes waste,” “culture” that constantly places churning out removal orders above due process, fundamental fairness, and best practices!

Ironically, doubling the number of Immigration Judges, eliminating expertise as the main qualification in judicial selections, and forcing yet more “gimmicks” down their throats has actually nearly tripled the case backlog to an astounding 1.4 million cases, without producing any quantifiable benefit for anyone!

Obviously, it’s high time for Garland to “reinvent” EOIR with progressive experts, many with private sector Immigration Court experience, as judges and leaders at both the appellate and the trial level! Who knows what wonders might result from an emphasis on quality, humanity, and getting decisions correct in the first instance? Progressives are used to creatively solving difficult problems without stepping on anyone’s rights or diminishing anyone’s humanity! Those skills are in disturbingly short supply at today’s failed and failing EOIR! And, they aren’t exactly DOJ’s “long suit,” either. 

EYORE
“Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”

🇺🇸 Due Process Forever! 

PWS

09-08-21

🛡⚔️BREAKING: ROUND TABLE, ALLIES OUT-JOUST GARLAND’S BIA YET AGAIN! — This Time It’s A Smashing El Salvadoran Asylum Victory @ The En Banc 4th Cir. — Portillo-Flores v. Garland (9-6)

Here it is, opinion by Judge Stephanie Thacker:

Portillo-Flores-4th-ElSal-EnBancThe concurring opinion by Judge James Wynn says:

Generally, when the Board of Immigration Appeals errs, “the proper course . . . is

to remand to the agency for additional investigation or explanation.” Alvarez Lagos v. Barr, 927 F.3d 236, 249 (4th Cir. 2019) (quoting INS v. Ventura, 537 U.S. 12, 16 (2002) (per curiam)). “But that is not an invariable rule.” Id. If the record evidence, considered as a whole, “would compel ‘any reasonable adjudicator’ to reach the opposite conclusion, then a remand is unnecessary, and [this Court] will reverse the Board’s finding.” Id. (quoting Cruz v. Sessions, 853 F.3d 122, 130 (4th Cir. 2017)).

II.
Here, as the majority opinion holds, the immigration judge and the Board of

Immigration Appeals erred by applying the wrong legal standards, arbitrarily disregarding relevant evidence, and failing to explain their decisions adequately. See Maj. Op. at 3, 12– 13, 16–18, 20–21, 25–26, 27–33. And based on such errors, the majority vacates the agency’s determination as to each prong of the asylum analysis—persecution, nexus to a protected ground, and government control—and remands for reconsideration. See id. at 3, 18, 21, 27–33. But when all relevant evidence in the record is properly considered under

the correct legal standards, any reasonable adjudicator would be compelled to conclude 35

that Petitioner suffered past persecution as a child and that his membership in his nuclear family was at least one central reason for that persecution.

. . . .

I conclude by adding that Petitioner has been seeking protection in the United States for more than five years. We should not prolong his quest any more than necessary.

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

Hats off to everyone involved in this!

Knightess
Knightess of the Round Table

Particular kudos to Judge Stephanie Thacker who wrote the majority and whose vigorous dissent from the wrong-headed panel decision undoubtedly helped secure en banc review. She stuck to her guns!

Judge Stephanie D. Thacker
Honorable Stephanie D. Thacker
U.S. Circuit Judge
Fourth Circuit
Photo From Ballotpedia

Also, much appreciation to Judge James Wynn for his separate opinion 1) calling out the” poppycock” in the dissent; and 2) drawing attention to the highly improper and  recurring problem with EOIR keeping deserving asylum seekers dangling for many years while they think of bogus reasons to deny asylum to please their “enforcement masters” at DOJ and DHS. This is neither due process nor justice! No wonder the backlogs are sky high!

Honl. James Wynn
Hon. James Wynn
U.S. Circuit Judge
Fourth Circuit
PHOTO: Wikipedia

As my esteemed Round Table colleague Hon. “Sir Jeffrey” Chase said:

“It’s remarkable how much good law is packed into this one decision.”

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

The corollary to that is: “It’s remarkable how much bad law and poor judicial performance is packed into EOIR’s bungling of these life or death cases which deserve and require both expert judges and fair, timely adjudication in accordance with asylum law and due process.”

When are Garland, Monaco, Gupta, and Clarke finally going to pull the plug on “Club Denial” at the BIA and bring in some real judges who will respect individuals’ civil, constitutional, and human rights, and start setting forth much better precedents that incorporate the wise teachings of folks such as Judge Thacker and Judge Wynn? The latter two jurists certainly appear to understand the Immigration Court system and its many (potentially fixable, but not the way Garland is going about it) flaws and shortcomings much better than anyone in EOIR HQ or on Garland’s staff.

The ongoing travesty of justice @ EOIR and the lives threatened thereby continue to be a national disgrace on Garland’s watch!

🇺🇸Due Process Forever!

PWS

06-29-21

 

 

🤡☹️A COURT W/O FRIENDS (THAT ISN’T A “COURT” AT ALL): EOIR Director Adopts Amicus’s Suggested Clarification, Then Shoots Messenger — Matter of Bay Area Legal Services, Inc. (“Bay Area II”)

Michelle Mendez
Michelle Mendez
Defending Vulnerable Populations Director
Catholic Legal Immigration Network, Inc. (“CLINIC”)
EYORE
“Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”

Michelle Mendez responds for CLINIC to McHenry’s latest decision in an e-mail to Dan Kowalski at LexisNexis Immigration Community:

Subject: [immprof] RE: Matter of BAY AREA LEGAL SERVICES, INC., 28 I&N Dec. 16 (DIR 2020)

 

Dan, thank you for sharing this new decision from EOIR Director McHenry.

 

This second decision in Matter of BAY AREA LEGAL SERVICES, INC. from EOIR Director McHenry may seem to come out of nowhere so, since the decision is aimed at CLINIC, we would like to provide background.

CLINIC’s network is comprised of approximately 380 immigration legal services organizations many of which have successfully relied on Recognition and Accreditation program to expand their legal services capacity in serving low-income immigrant communities. In support of our network, CLINIC has specifically catered to the needs of Accredited Representatives by, as examples, designing trial skills and legal writing trainings just for them and supporting them on their accreditation applications to EOIR. Given our expertise and interest in the Recognition and Accreditation program, when EOIR Director McHenry issued a call for amicus briefs on Recognition and Accreditation issues, CLINIC submitted a brief and we later learned, via the (first) decision in Matter of BAY AREA LEGAL SERVICES, 27 I&N Dec. 837 (DIR 2020), that we were the sole org to appear as amicus.

 

Unfortunately, in Matter of BAY AREA LEGAL SERVICES, 27 I&N Dec. 837 (DIR 2020), EOIR Director McHenry’s discussion of the skills needed to attain full accreditations was vague, unclear, and therefore confusing. Footnotes 13 and 14 in the decision appear to fault the applicant for full accreditation status for not practicing before EOIR before being granted full accreditation. At worst, the decision could lead one to infer that accredited representatives had to engage in unauthorized practice of immigration law to get the skills needed for full accreditation. We brought this issue to EOIR Director McHenry’s attention and he entertained our feedback during a phone conversation while disagreeing with our concerns. While the phone call was ultimately unhelpful as to this issue, we were able to discern just how unfamiliar he is with the Recognition and Accreditation program. At one point he stated that it was “totally conceivable that [accredited representatives] have some litigation experience.” It is not totally conceivable and we informed him of this too. After our call we sent EOIR Director McHenry the attached letter. We followed up with EOIR Director McHenry on Tuesday. On Wednesday he responded that “a type of formal response is forthcoming.” On Thursday he issued this second, published decision in which he chastises us for challenging him when we, as mere amicus curiae, have “no authority” to do so. However, you will notice that he also took the opportunity to clarify the very points we told him were vague and problematic. Of course, EOIR Director McHenry did not have to go the published decision route to deal with our concerns, but he preferred to project his power above being collaborative. And we have some concerns that EOIR will use this decision to prevent amici from following up to clear errors in other decisions where the respondent was pro se or the decision addresses in absentia orders.  While I am surprised that CLINIC seemingly made him feel threatened, as a respected retired IJ said, it is an “honor to be called out in something like this.”

 

I am not on the ICLINIC@LIST.MSU.EDU listserv so if someone could forward this email to them, I would be grateful. Thank you.

 

Michelle N. Mendez (she/her/ella/elle)

Director, Defending Vulnerable Populations Program

Catholic Legal Immigration Network, Inc. (CLINIC)

Here’s a link to McHenry’s decision in Bay Area II:

https://urldefense.proofpoint.com/v2/url?u=https-3A__www.justice.gov_eoir_page_file_1291786_download&d=DwMFAw&c=euGZstcaTDllvimEN8b7jXrwqOf-v5A_CdpgnVfiiMM&r=Wq374DTv_PXfIom65XBqoA&m=YJ89kw8K2uqLIw5FdRsilIr3v_T7ai5C3pv9pIngFJM&s=9RKJ0zaLqmRz-W92NyUtHQFB12wC4rz5tVptNEOgYrw&e=

And, here’s a link to the CLINIC letter to McHenry that apparently spurred Bay Area II:

McHenry amend request final

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

So, CLINIC, the sole Amicus, with much more experience in the Recognition & Accreditation Program than McHenry, offers McHenry some helpful suggestions for clarifying his decision. He should have thanked them and issued an amended decision on his own, as “real courts” sometimes do.

Instead, McHenry threw a hissy fit, imagining that his “authority” was being challenged. While making the suggested clarification, he took the occasion unnecessarily and inappropriately to publicly dump on the Amicus who helped him. 

Clearly, the act of an arrogant, yet insecure, person who knows he’s “way over his head” in his job. Sound familiar? But, hardly anything we didn’t already know about the awful legal and management mess at EOIR. And, in many ways a microcosm of the multiple disasters and institutional breakdowns sweeping our nation in the Age of the (Not So) Great Imposter.

I was gratified yesterday to hear former Ambassador Susan Rice on Meet the Press  “channel Courtside” by referring to Trump’s so-called intelligence advisors as a “Clown Show” 🤡 in connection with the “Putin’s bounty fiasco.” On the other hand, that our national intelligence is in the hands of sycophantic clowns advising the “Chief Clown” is a cause for grave concern.

The involvement of the EOIR Director in any form of case adjudication is highly questionable from an historical and ethical standpoint. Here’s my previous “mini-history” of the Director position from Courtside: https://immigrationcourtside.com/2017/07/06/katherine-m-reilly-named-acting-deputy-director-of-eoir-also-a-mini-history-of-eoir-directors/

Suffice it to say that McHenry’s performance is powerful evidence of the reasons why the Director of EOIR should be abolished, hopefully as part of Article I legislation, and replaced with an “Executive Director,” a purely administrative position with no judicial or “legal policy” functions, and subordinate to and reporting to the Chief Appellate Judge  who would replace the BIA Chair. The recent attempts to “reinsert” an improper adjudicative and “policy” role for the Director is yet another example of the gross legal, ethical, and management failures of EOIR under Trump’s DOJ kakistocracy. 

Due Process Forever!  Clown Courts,🤡 Never!

PWS

07-05-20

ROUND TABLE STRIKES ANOTHER BLOW IN SUPPORT OF JUSTICE⚔️🛡: Immigration Detainees Have a Right to Due Process in Bond Hearings — PADILLA RAUDALES V. DECKER, 2D CIR.

CHRISTOPHER T. CASAMASSIMA
CHRISTOPHER T. CASAMASSIMA
Partner
Wilmer Hale
Los Angeles
SOUVIK SAHA
SOUVIK SAHA
Counsel
Wilmer Hale
Washington, D.C.
Knightess
Knightess of the Round Table

 

INTEREST OF AMICI CURIAE1

Amici curiae have served as Immigration Judges and as members of the Board of Immigration Appeals (“BIA”). Amici are invested in the resolution of this case because they have dedicated their careers to improving tghe fairness and

2

efficiency of the U.S. immigration system. Through their centuries-long collective experience, amici have adjudicated hundreds—if not thousands—of immigration detention hearings. Amici have substantial knowledge of immigration detention issues, including the practical impact of the burden of proof in such hearings.

INTRODUCTION AND ARGUMENT SUMMARY

Under the Fifth Amendment, “[n]o person” shall “be deprived of … liberty … without due process of law[.]” U.S. Const. amend. V. The “[f]reedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that Clause protects.” Zadvydas v. Davis, 533 U.S. 678, 690 (2001). This liberty is so fundamental that the law tolerates its restraint only in limited circumstances.

1

Amici are invested in the resolution of

2

efficiency of the U.S. immigration system. Through their centuries-long collective experience, amici have adjudicated hundreds—if not thousands—of immigration detention hearings. Amici have substantial knowledge of immigration detention issues, including the practical impact of the burden of proof in such hearings.

INTRODUCTION AND ARGUMENT SUMMARY

Under the Fifth Amendment, “[n]o person” shall “be deprived of … liberty … without due process of law[.]” U.S. Const. amend. V. The “[f]reedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that Clause protects.” Zadvydas v. Davis, 533 U.S. 678, 690 (2001). This liberty is so fundamental that the law tolerates its restraint only in limited circumstances.

1

Amici are invested in the resolution of this case because they have dedicated their careers to improving the fairness and

Board of Immigration Appeals (“BIA”).

Amici have filed substantially similar briefs in other cases involving burden of proof issues in proceedings under 8 U.S.C. § 1226(a). Here, no party or party’s counsel authored this brief in whole or in part, nor contributed money to preparing or submitting this brief. Only amici or their counsel contributed money to prepare or submit this brief. The parties have consented to the filing of this brief.

2

A complete list of amici is included in this brief’s addendum.

Case 19-3220, Document 116, 06/03/2020, 2854056, Page13 of 56

Such restraint violates the Due Process Clause “unless the detention is ordered in a criminal proceeding with adequate procedural protections, or, in certain special and narrow nonpunitive circumstances, where a special justification, such as harm-threatening mental illness, outweighs the individual’s constitutionally protected interest in avoiding physical restraint.” Zadvydas, 533 U.S. at 690. Yet, federal law provides far greater protections to criminal defendants than it does to noncitizens in civil proceedings—even though the distinctions between criminal and non-criminal proceedings mean very little to a person sitting behind bars.

Accordingly, noncitizens already face significant hurdles in detention proceedings brought under 8 U.S.C. § 1226(a). At issue in this appeal is whether another, even higher and more fundamental, barrier to due process can be erected in this Circuit: do noncitizens bear the burden of justifying their freedom from detention? For noncitizens, the answer to this question is no mere technicality—it can mean the difference between freedom and confinement. This burden’s allocation, therefore, “reflects the value society places on individual liberty.” Addington v. Texas, 441 U.S. 418, 425 (1979).

Given their collective experience in adjudicating immigration bond hearings, amici are particularly well-suited to address the monumental question in this case. To that end, amici wish to share the following observations for this Court’s benefit:

-2-

Case 19-3220, Document 116, 06/03/2020, 2854056, Page14 of 56

First, noncitizens already enjoy fewer procedural protections than criminal defendants. We contrast the procedural rules for detaining criminal defendants and noncitizens to underscore the challenges that noncitizens face in immigration bond hearings, and to highlight the need for a presumption against detention as one of the last remaining bulwarks to protect noncitizens’ liberty.

Second, detention of noncitizens consumes the government’s already- limited administrative and judicial resources. Amici highlight the staggering costs that are associated with immigration detention, as well as the strain on immigration courts resulting from the unnecessary detention of noncitizens.

Third, contrary to the government’s position, placing the burden of proof on the government would not generate fiscal or administrative hardship. Amici advance that position with confidence because the government previously shouldered that exact burden over a fifteen-year period. Several of the amici served as Immigration Judges within that period and found that this older system did not cause additional costs or administrative hurdles.

Fourth, in amici’s experience, detaining noncitizens actually increases the burden on the immigration court system. While in detention, noncitizens face significant challenges in adequately preparing their cases. Further, the Executive Branch now utilizes “performance metrics” to encourage Immigration Judges to accelerate the fact-finding process in detention proceedings. With less time for

-3-

Case 19-3220, Document 116, 06/03/2020, 2854056, Page15 of 56

individualized fact-finding, noncitizens will have even less opportunity to marshal the facts needed to satisfy the burden to avoid detention. Reallocating the burden of proof in immigration bond hearings, therefore, would reduce costs.

Fifth, and finally, amici offer alternatives to noncitizen detention that would inject much-needed resources to the immigration court system. The government’s aversion to such alternatives rest on a single statistic suggesting that the vast majority of noncitizens abscond upon release on bond. That statistic, however, is misleading and inconsistent with other available data, and bears little resemblance to the reality that amici encountered in years of adjudicating immigration cases.

Together, these observations should lead this Court to conclude that due process requires the government to make some sort of individualized showing before it may place noncitizens under lock and key.

. . . .

Read the full brief here: AS FILED No. 19-3220 Amici Br. Padilla Raudales v. Decker (2d Cir.)

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

Thanks again not only to the signatory members of our Round Table, but especially to CHRISTOPHER T. CASAMASSIMA, SOUVIK SAHA, and the other members of their pro bono team over at  WILMER HALE.  Without assistance like yours, the “Voices of the Round Table” would not be heard in support of justice in so many cases throughout our nation!

DUE PROCESS FOREVER!

PWS

06-04-20

⚖️👍🏼SUPREMES UPHOLD JUDICIAL REVIEW OF CAT DENIAL, 7-2 — NASRALLAH v. BARR, Opinion By Justice Kavananaugh — Round Table ⚔️🛡 Files Amicus For Winners!

NASRALLAH v. BARR, No. 18-432, June 1, 2020

SUPREME COURT SYLLABUS:

OCTOBER TERM, 2019 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

NASRALLAH v. BARR, ATTORNEY GENERAL CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE ELEVENTH CIRCUIT

No. 18–1432. Argued March 2, 2020—Decided June 1, 2020

Under federal immigration law, noncitizens who commit certain crimes are removable from the United States. During removal proceedings, a noncitizen who demonstrates a likelihood of torture in the designated country of removal is entitled to relief under the international Conven- tion Against Torture (CAT) and may not be removed to that country. If an immigration judge orders removal and denies CAT relief, the noncitizen may appeal both orders to the Board of Immigration Ap- peals and then to a federal court of appeals. But if the noncitizen has committed any crime specified in 8 U. S. C. §1252(a)(2)(C), the scope of judicial review of the removal order is limited to constitutional and legal challenges. See §1252(a)(2)(D).

The Government sought to remove petitioner Nidal Khalid Nasral- lah after he pled guilty to receiving stolen property. Nasrallah applied for CAT relief to prevent his removal to Lebanon. The Immigration Judge ordered Nasrallah removed and granted CAT relief. On appeal, the Board of Immigration Appeals vacated the CAT relief order and ordered Nasrallah removed to Lebanon. The Eleventh Circuit declined to review Nasrallah’s factual challenges to the CAT order because Nasrallah had committed a §1252(a)(2)(C) crime and Circuit precedent precluded judicial review of factual challenges to both the final order of removal and the CAT order in such cases.

Held: Sections 1252(a)(2)(C) and (D) do not preclude judicial review of a noncitizen’s factual challenges to a CAT order. Pp. 5–13.

(a) Three interlocking statutes establish that CAT orders may be re- viewed together with final orders of removal in a court of appeals. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 authorizes noncitizens to obtain direct “review of a final order of re-

2

NASRALLAH v. BARR Syllabus

moval” in a court of appeals, §1252(a)(1), and requires that all chal- lenges arising from the removal proceeding be consolidated for review, §1252(b)(9). The Foreign Affairs Reform and Restructuring Act of 1998 (FARRA) implements Article 3 of CAT and provides for judicial review of CAT claims “as part of the review of a final order of removal.” §2242(d). And the REAL ID Act of 2005 clarifies that final orders of removal and CAT orders may be reviewed only in the courts of appeals. §§1252(a)(4)–(5). Pp. 5–6.

(b) Sections 1252(a)(2)(C) and (D) preclude judicial review of factual challenges only to final orders of removal. A CAT order is not a final “order of removal,” which in this context is defined as an order “con- cluding that the alien is deportable or ordering deportation,” §1101(a)(47)(A). Nor does a CAT order merge into a final order of re- moval, because a CAT order does not affect the validity of a final order of removal. See INS v. Chadha, 462 U. S. 919, 938. FARRA provides that a CAT order is reviewable “as part of the review of a final order of removal,” not that it is the same as, or affects the validity of, a final order of removal. Had Congress wished to preclude judicial review of factual challenges to CAT orders, it could have easily done so. Pp. 6– 9.

(c) The standard of review for factual challenges to CAT orders is substantial evidence—i.e., the agency’s “findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” §1252(b)(4)(B).

The Government insists that the statute supplies no judicial review of factual challenges to CAT orders, but its arguments are unpersua- sive. First, the holding in Foti v. INS, 375 U. S. 217, depends on an outdated interpretation of “final orders of deportation” and so does not control here. Second, the Government argues that §1252(a)(1) sup- plies judicial review only of final orders of removal, and if a CAT order is not merged into that final order, then no statute authorizes review of the CAT claim. But both FARRA and the REAL ID Act provide for direct review of CAT orders in the courts of appeals. Third, the Gov- ernment’s assertion that Congress would not bar review of factual challenges to a removal order and allow such challenges to a CAT order ignores the importance of adherence to the statutory text as well as the good reason Congress had for distinguishing the two—the facts that rendered the noncitizen removable are often not in serious dis- pute, while the issues related to a CAT order will not typically have been litigated prior to the alien’s removal proceedings. Fourth, the Government’s policy argument—that judicial review of the factual components of a CAT order would unduly delay removal proceedings— has not been borne out in practice in those Circuits that have allowed factual challenges to CAT orders. Fifth, the Government fears that a

Cite as: 590 U. S. ____ (2020) 3 Syllabus

decision allowing factual review of CAT orders would lead to factual challenges to other orders in the courts of appeals. But orders denying discretionary relief under §1252(a)(2)(B) are not affected by this deci- sion, and the question whether factual challenges to statutory with- holding orders under §1231(b)(3)(A) are subject to judicial review is not presented here. Pp. 9–13.

762 Fed. Appx. 638, reversed.

KAVANAUGH, J., delivered the opinion of the Court, in which ROBERTS, C. J., and GINSBURG, BREYER, SOTOMAYOR, KAGAN, and GORSUCH, JJ., joined. THOMAS, J., filed a dissenting opinion, in which ALITO, J., joined.

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

Score at least a modest victory for the NDPA over the “Deportation Railroad.”

Once again the Round Table 🛡⚔️ intervened with an amicus brief on the side of justice.  Here’s a report from Judge Jeffrey Chase:

Hi All:  Our Round Table filed an amicus brief in Nasrallah v. Barr.  The Supreme Court issued it’s 7-2 decision in the case today, and we were on the winning side.
Kavanaugh wrote the decision, and was joined by Roberts, Ginsburg, Breyer, Sotomayor, Kagan, and Gorsuch.  Thomas wrote a dissenting opinion that was joined by Alito.
The decision reverses the 11th Cir. and holds that federal courts may review factual issues as well as legal and constitutional issues in CAT appeals  filed by noncitizens with criminal convictions falling under 8 C.F.R. section 1252(a)(2)(C).
Gibson Dunn assisted us with the drafting of the brief.
Best, Jeff
Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Retired Immigration Judges
Knightess
Knightess of the Round Table

And, of course, as Jeffrey notes, we couldn’t have done it without help from our pro bono heroes 🥇 over at Gibson Dunn! Many, many thanks!

Great that Justice Kavanaugh, Chief Justice Roberts, and Justice Gorsuch “saw the light” on this one! Not sure how often it will happen in the future, but gotta take what we can get.

Also, given the “haste makes waste” policies thrust on EOIR by the DOJ under Trump, and the significant number of fundamental legal and factual errors made by the BIA, judicial review is likely to turn up additional instances of substandard decision-making.

PWS

06-01-20

DUE PROCESS: Round Table ⚔️🛡 Files Amicus Brief in Yanez-Pena v. Barr (5th Cir.) Cert. Petition — Pereira Issue

Richard W. Mark, Esquire
Richard W. Mark, Esquire
Partner
Gibson Dunn
New York
Amer S. Ahmed
Amer S. Ahmed, Esquire
Partner
Gibson Dunn
New York
Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Retired Immigration Judges
Knightess
Knightess of the Round Table

 

Read the entire brief here:

Yanez-Pena Amicus Brief TO FILE

 

Here’s the summary from the brief :

SUMMARY OF ARGUMENT

It is an axiom of due process that a party charged to defend against a legal proceeding must receive notice of the time and place of the proceeding and an opportunity to be heard. This Court’s ruling in Pereira v. Sessions, 138 S. Ct. 2105 (2018), reflects that axiom in the context of initiating removal proceedings by “notice to appear.”

This petition presents a straightforward question of enormous practical significance that has divided the five courts of appeals to have considered the issue: Must the initial written notice served on noncitizens to commence their removal proceedings provide—in

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 counsel 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

one document—the “time and place at which the proceedings will be held” (along with charges and other specified information) in order to satisfy the require- ments of 8 U.S.C. § 1229(a), or does the statute allow the government to cobble together the required elements of a “notice to appear” from multiple documents, issued at different times, none of which alone contain all of the statutorily required information?

Resolution of this issue will affect thousands of people in the immigration system. For noncitizens applying for cancellation of removal, service of a valid “notice to appear” triggers the so-called “stop-time” rule, which terminates the period of continuous pres- ence required for cancellation eligibility. For noncitizens ordered removed in absentia, whether that se- vere penalty is proper depends on whether the notice served on the noncitizen satisfied the requirements of § 1229(a).

This Court should grant review to resolve the accelerating circuit split over this issue. The Fifth Circuit, agreeing with the Sixth Circuit, held that a defective “notice to appear” lacking the statutorily required time-and-place information could be “cured” by a subsequent “notice of hearing” containing that information, such that the separate documents considered together become “a notice to appear,” with the stop- time rule being triggered upon later service of the “curative” notice of hearing. See Yanez-Pena v. Barr, 952 F.3d 239 (5th Cir. 2020); Garcia-Romo v. Barr, 940 F.3d 192 (6th Cir. 2019). The Third and Tenth Circuits, based on the plain language of § 1229(a) and this Court’s decision in Pereira, 138 S. Ct. at 2105, have reached the opposite conclusion. See Guadalupe v. Atty. Gen., 951 F.3d 161 (3d Cir. 2020); Banuelos v. Barr, 953 F.3d 1176 (10th Cir. 2020). A divided panel

3

of the Ninth Circuit was in accord with the Third and Tenth Circuits, before that court granted rehearing en banc. See Lopez v. Barr, 925 F.3d 396, 405 (9th Cir. 2019), vacated and reh’g en banc granted, 948 F.3d 989 (9th Cir. 2020).

This Court should bring harmony to federal law by granting certiorari, reversing the Fifth Circuit, and restoring the common-sense interpretation of § 1229(a) as requiring one document that satisfies the statute’s requirements.

I. The question presented affects many thousands of people across the country. As the government told this Court in 2018, “almost 100 percent” of putative notices to appear omit the required time-and-place in- formation. Pereira, 138 S. Ct. at 2111. Hundreds of thousands of notices to appear are served each year; a dispute about validity is embedded in every proceed- ing initiated with a notice that lacks time-and-place information. Indeed, tens of thousands of cancellation applications remain pending, each one requiring an IJ to determine whether the stop-time rule was triggered by § 1229(a) notice. Similarly, tens of thousands of in absentia removal orders are issued every year, each one dependent on whether proceedings began with the noncitizen’s being served a notice to appear that com- plies with § 1229(a).

This case involves the application of § 1229(a) in both the cancellation of removal and in absentia removal contexts, thus presenting an optimal vehicle to address the question presented. See Petition for a Writ of Certiorari (“Pet.”) at 22-24.

II. Deciding the question presented will also pro- mote uniformity in the nation’s immigration laws. Uniformity in this sphere is a foundational principle

4

of American law, with the Constitution explicitly directing Congress “[t]o establish an uniform Rule of Naturalization.” U.S. Const. art. I, § 8, cl. 4. But there can be no uniform law if basic questions affect- ing the right of an individual to remain in the country get an answer that varies among the circuits. Such a regime would result in divergent outcomes based on geography alone, not the merits of any particular noncitizen’s case.

This unfairness may be exacerbated by the Department of Homeland Security’s (“DHS”) discretion to select the venue for a removal proceeding, and thus the law that governs the case. DHS’s ability to choose the venue, coupled with its ability to transfer detainees wherever it sees fit, opens the door to unfair forum shopping for the circuit law it prefers.

III. Requiring DHS to work with the Executive Office for Immigration Review (“EOIR”) to obtain time-and-place information before serving a notice to appear—and including such information in that document, as § 1229(a) and Pereira require—is practical and will reduce administrative inefficiency and error. Doing so will also achieve the legislative purpose of the Illegal Immigration Reform and Immigration Responsibility Act (“IIRIRA”), Pub. L. 104-208, Div. C, 110 Stat. 3009-546, of which § 1229(a) was a part, by instituting a “single form of notice” to “simplify procedures for initiating removal proceedings.” H.R. Rep. 104-469(I), 1996 WL 168955 at *159.

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

Many thanks to our GOOD friends Richard W. Mark and Amer S. Ahmed and their team over at the NY Office of Gibson Dunn for their extraordinary pro bono assistance in drafting our brief.

Due Process Forever!👍🏼

PWS

05-12-20

ROUND TABLE FILES AMICUS IN SUPPORT OF STOPPING DANGEROUS IMMIGRATION COURT PRACTICES – With Lots Of Help From Our Friends @ Arnold & Porter! – “We are in the midst of a nationwide pandemic. From the approach of the Executive Office for Immigration Review (EOIR) headquarters, one would never know that.”☠️🆘

John A. Freedman
John A. Freedman
Senior Counsel
Arnold & Porter
Hon. Ilyce Shugall
Hon. Ilyce Shugall
U.S. Immigraton Judge (Retired)
Director, Immigrant Legal Defense Program, Justice & Diversity Center of the Bar Assn. of San Francisco.
Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Retired Immigration Judges
Knightess
Knightess of the Round Table

Key Excerpt:

We are in the midst of a nationwide pandemic. From the approach of the Executive Office for Immigration Review (EOIR) headquarters, one would never know that. Through a series of chaotic and inconsistent announcements, EOIR —the office that manages the procedural components of the immigration court system on behalf of the United States Department of Justice2—has continued to schedule non-essential proceedings, requiring judges, court staff and security personnel, litigants and case participants, attorneys, witnesses, interpreters, and interested members of the public to come immigration court, exposing them, their families, and their communities to unnecessary risk of COVID-19.
1 In accordance with Local Rule 7(o), no party’s counsel authored this brief in whole or in part, nor did any party or party’s counsel, or any other person other than amici curiae, contribute money that was intended to fund preparing or submitting this brief.
2 See 8 C.F.R. § 1003.0(b) (setting forth the authority of the Director of EOIR).

1
Case 1:20-cv-00852-CJN Document 11-1 Filed 04/09/20 Page 5 of 22
The madness of EOIR s approach is evident in one example, representative of its
approach. Yesterday – April 8 — the immigration court in Elizabeth, New Jersey was open for business as usual. This court is across the Hudson River from New York City, and is near the epicenter of the largest COVID-19 hotspot on the planet, and is in a jurisdiction that has had a mandatory shelter-in-place” order since March 21. Yet EOIR insisted that proceedings continue
yesterday. Until it was learned that two detainees in the courthouse were positive for COVID- 19. Only then did EOIR accede to the obvious, scrambling to order the court to shut the Elizabeth court down. But immigration courts were open in many other jurisdictions yesterday, and are scheduled to be open today and for the foreseeable future.
EOIR’s intransigence defies the practice of numerous federal and state courts, the
recommendations of public health officials, and the orders of dozens of Governors who have ordered all non-essential business be deferred. As Judge Samuel Cole, a spokesperson for the National Association of Immigration Judges warned, everyone is being put at risk.” Close immigration courts? Lawyers and judges push to stop in-person hearings amid coronavirus spread, Fortune (Mar. 26, 2020) (describing how attorneys are wearing swim googles and masks to comply with EOIR orders).
The current EOIR approach manifests this disarray because there was not, and has never been, any meaningful continuity planning by EOIR. EOIR, and therefore the immigration court system itself, has sacrificed due process in favor of rapid removals, leaving the court without any incentive at all to plan to protect the public health or the individuals and participants in the system.
Amici urge the issuance of a temporary restraining order to allow for development of a more comprehensive, systemic, and scientifically sound policy that respects due process and the
2
Case 1:20-cv-00852-CJN Document 11-1 Filed 04/09/20 Page 6 of 22
public health. We offer a framework for what a legally and scientifically sound policy could look like and why a court-ordered pause on all non-essential activities for a short 28-day period could allow for such a policy to emerge in deliberations with stakeholder communities.

 

Read the entire brief, which contains our proposed solution for how the Immigration Courts could conduct essential operations consistent with health, safety, and due process during this pandemic: Amicus brief_NIPNLG

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

Again, many, many thanks to John Freedman and his group at Arnold & Porter as well as Ilyce & Jeffrey for their leadership.

Due Process Forever! EOIR’s Insanity, Never!

PWS
04-1–20

ROUND TABLE NEWS:  Getting The Due Process Message Across — 9th Cir. Orders Regime To Respond To Round Table’s Amicus Briefs in Matter of A-B- Challenges!

Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Lory Rosenberg
Hon. Lory Diana Rosenberg
Senior Advisor
Immigrant Defenders Law Group, PLLC

Round Table stalwarts Judge Jeffrey S. Chase and Judge Lory Diana Rosenberg report:

Notice of Docket Activity

The following transaction was entered on 03/03/2020 at 3:25:28 PM PST and filed on 03/03/2020

Case Name: Sontos Diaz-Reynoso v. William Barr
Case Number: 18-72833
Document(s): Document(s)

 

Docket Text:

Filed clerk order (Deputy Clerk: AF): The panel previously ordered that argument for the above-captioned cases would proceed with Diaz-Reynoso v. Barr, No. 18-72833 being argued first. The panel supplements its previous order for argument in this first case, as follows: Petitioner will argue, reserving time for rebuttal if desired, then Amicus Curiae The Center for Gender and Refugee Studies will argue, then Respondent will have an opportunity to respond to both Petitioner and the Amicus, and finally Petitioner may use any time reserved for rebuttal. Additionally, Respondent should be prepared to address the arguments raised by Amici Curiae Thirty-Nine Former Immigration Judges and Members of the Board of Immigration Appeals. [11616996] [18-72833, 18-72735, 18-73434, 19-70489] (AF)

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

Great to know that at least some Article IIIs are paying attention. We can only hope that they will act on our expert views and save some very deserving and highly vulnerable lives. Of course, we couldn’t have gotten this far without the amazing pro bono team over at Gibson Dunn!

Knjightess
Knightess of the Round Table

PWS

03-08-20

LATEST JOUSTING NEWS FROM THE ROUND TABLE – Amicus Brief Filed With Supremes In Pereida v. Barr (Categorical Approach) With Lots Of Help From Our Pro Bono Heroes @ PILLSBURY WINTHROP SHAW PITTMAN LLP

Here’s the full brief:

Pereida-Supremes-Amicus-19-438 Amici Brief Former US Immigration Judges

Here’s a summary of our argument:

 

SUMMARY OF ARGUMENT

This brief presents the view of former IJs and BIA members on an issue of vital importance to the functioning of our immigration system: how requiring IJs to assess inconclusive conviction records to determine whether a prior criminal conviction disqualifies a noncitizen from applying for relief from removal is contrary to longstanding application of the categorical approach, will create further delays in an already overburdened immigration system, and will deprive IJs of their discretionary power.

Mr. Pereida is correct that inconclusive state conviction records cannot satisfy the categorical approach’s requirement that the state conviction necessarily establishes federal predicate offenses. Affirming this interpretation of the categorical approach will promote the expeditious and fair adjudication of the hundreds of thousands of cases pending in immigration courts.

7

The Government incorrectly asserts that when the conviction record is inconclusive as to whether a conviction was for a disqualifying offense, a noncitizen does not carry his or her burden of proof to show statutory eligibility for relief. That argument is faulty because it would require IJs to conduct an inquiry, which the Government wrongly argues is governed by the Immigration and Nationality Act’s (“INA”) burden of proof allocation, focusing on the facts underlying the conviction. Moreover, rather than aid IJs in resolving cases, the Government’s position would impede the application of the modified categorical approach by forcing IJs to delay the proceedings. IJs will be forced to wait for the noncitizen to obtain and present criminal records that may not even exist or be obtainable and then examine those criminal records to make factual determinations the categorical approach is meant to avoid. The Government’s novel gloss on the modified categorical approach is antithetical to the analysis IJs have employed for decades and would preclude the exercise of discretion essential to the functioning of immigration courts.

Contrary to the Government’s contention, the modified categorical approach does not involve a separate factual inquiry. The requisite analysis is a legal one: whether the conviction rests upon nothing more than the minimum conduct necessary for a conviction. Deviating from the categorical approach’s sole focus on a direct and uncomplicated comparison between state and federal offenses, as the Government would require, threatens to disturb the uniformity of outcomes in similar circumstances that the categorical approach safeguards. Mr. Pereida’s interpretation of

8

the categorical approach would avoid this undesirable outcome.

For the reasons explained in the balance of this brief, Mr. Pereida’s solution is the correct one. Section I provides a real-world overview of how removal proceedings operate, focusing on the typical sequence of immigration court proceedings, how criminal records are introduced and considered, and the limited ability of noncitizens (many of whom are detained during such proceedings) to procure relevant records. Section II discusses the administrability of the categorical approach and its modified variant, highlighting the benefits of the approach, how Mr. Pereida’s position is in harmony with the way in which IJs apply the approach to reach just results, and how the Government’s interpretation would impede the workings of immigration courts. Finally, Section III explains how the Government’s position would curtail IJs’ discretionary power to analyze the facts of each case to reach a just result.

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

Many, many, many thanks to David G. Keyko, Counsel of Record, Robert L. Sills, Matthew F. Putorti, Stephanie S. Gomez, Jihyun Park and the rest of the amazing pro bono team over at Pillsbury for their outstanding and timely research and writing.

And, as always, it’s a privilege and an honor to be listed with the rest of my friends and colleagues on our Round Table of Former Immigration Judges!

Knjightess
Knightess of the Round Table

Due Process Forever!

 

PWS

02-07-20

 

 

 

GOOD NEWS: En Banc 9th Cir. Will Rehear C.J.L.G. v. Sessions On Children’s Right To Counsel in Removal – Oral Argument Set For Dec. 10, 2018 — “Our Gang’s” Amicus Brief Appears To Have Helped!

Lee Brand, Partner at Simpson Thacher & Bartlett LLP in Palo Alto, CA and his amazing group of brief write gave us the good news this afternoon and sent along these orders granting the rehearing en banc and setting OA:

CJLGOrder 2 CJLGOrder

Many thanks to Lee and his dedicated group of superstar members of the “New Due Process Army” without whom this effort would not have been possible.

Here’s a copy of the Amicus Brief from “Our Gang of Retired Judges:”

2018.03.15 CJLG Amicus Brief of IJs

This is one of many important Federal Court and BIA cases in which “Our Gang” under the leadership of Judge Jeffrey Chase and Judge Lory Rosenberg have filed amicus briefs informing the courts of the realities of Immigration Court practice and the current sad state of Due Process in the courts. We’re working on some additional “assignments.” We’ll keep fighting for fairness, Due Process, and judicial independence as long as we’re “alive and kicking.”

Here’s a brief report form Jeffrey:

I am sending this to our now much larger full group.  One of the early amicus briefs in which 11 members of our gang participated was filed in support of a motion for rehearing en banc before the 9th Cir. in CJLG v. Sessions.  In that case, an IJ went forward with the asylum hearing of a 15 year old respondent who was unable to retain counsel, telling his mother that she would represent him.  Not surprisingly, asylum was denied based on the respondent’s inability to state a cognizable social group and to establish the government was unable/unwilling to control.  The ACLU filed a petition for review in the 9th Cir. arguing that minors should be assigned counsel in removal proceedings, which was dismissed by a 3 judge panel.

Today, the 9th Cir. granted the motion for rehearing en banc; oral arguments are set for Dec. 10.
So far, of the cases in which our gang submitted amicus briefs, there have been successful outcomes in Negusie (before the BIA), and in Matumona v. Sessions in the 10th Cir., in which OIL stipulated to remand for the BIA to consider the arguments raised on appeal (which concerned the impact of remote detention centers on the respondent’s ability to retain counsel).

It’s an honor to be a member of “Our Gang” and to have the opportunity to work with the many outstanding pro bono counsel and firms throughout the country who are part of the “New Due Process Army.”  The efforts of these wonderful lawyers represent the real commitment to the “rule of law” in immigration and stand in sharp contrast with the jaundiced views and insults to the legal profession publicly proclaimed by Jeff Sessions.

If you are a retired Immigration Judge or BIA Appellate Immigration Judge and would like to join our collegial group effort, please contact Jeffrey, Lory, or me. It’s a rewarding experience and a great opportunity to use your expertise to “make a difference.” It’s also a great chance to keep in touch with your judicial colleagues. It’s not all work (that’s where our wonderful pro bono lawyers come in) — we also have some fun, good times, and fond recollections in the process. (Judge Gus “Hang 10” Villageliu has promised free (non-web) surfing lessons to all new members once hurricane season is past!)

Due Process Forever!

PWS

09-20-18

HON. JEFFREY CHASE: THE COMPELLING CASE AGAINST UNREGULATED, UNENDING CIVIL IMMIGRATION DETENTION! – The Drafters Of The U.S. Constitution Never Contemplated Indefinite So-Called “Civil” Imprisonment In Squalid Conditions In The “New American Gulag.”

https://www.jeffreyschase.com/blog/2018/8/5/the-case-against-indefinite-detention

The Case Against Indefinite Detention

An amicus brief was recently filed on behalf of a group of 20 former Immigration Judges and BIA Members (including myself) in the case of Rodriguez et. al. v. Robbins.  The case, which was remanded back to the Ninth Circuit by the U.S. Supreme Court in its February 2018 decision in Jennings et. al. v. Rodriguez, is the latest chapter in an ongoing conflict over the constitutionality of indefinite civil detention of noncitizens.

 

The concept of indefinite detention is at odds with our legal system’s well-known practice of meting out specific time frames for incarceration as part of the sentencing of convicted criminals.  Indefinite non-punitive civil detention is even stranger to American concepts of liberty. For this reason, the U.S. Court of Appeals for the Ninth Circuit rendered its decision in Rodriguez in 2015, requiring three classes of indefinitely detained noncitizens – those seeking entry to the U.S., those awaiting decisions on their removal from the U.S., and those convicted of certain classes of crimes but not subject to a final order of removal – to be afforded bond hearings every six months.  The court noted that its order did not require “Immigration Judges to release any single individual; rather, we are affirming a minimal procedural safeguard…to ensure that after a lengthy period of detention, the government continues to have a legitimate interest in the further deprivation of an individual’s liberty.”

At around the same time the Ninth Circuit decided Rodriguez, the Second Circuit took the same approach in Lora v. Shanahan, also requiring bond hearings every 6 months, and further holding that bail must be afforded unless ICE establishes “by clear and convincing evidence that the immigrant poses a risk of flight or a risk of danger to the community.”

The Supreme Court disagreed with Rodriguez, and remanded the matter back to the Ninth Circuit, where that court will consider the issue of whether the detainees have a constitutional right to a bond hearing.

Our amicus brief argues that not only is the right to a bond hearing every six months consistent with principles of due process, but that such policy also assists with the immigration court’s efficient administration of justice.  Given the huge backlog of some 715,000 cases in the nation’s immigration courts, the brief argues that prolonged detention has the effect of bogging down immigration court dockets by decreasing the detainees’ ability to obtain representation, impeding on the ability of represented detainees to communicate with their counsel, and creating obstacles for unrepresented respondents to present their cases.  Many ICE detention facilities are in remote locations, often 100 or more miles from the nearest legal services provider or from cities with sizable populations of immigration lawyers. As a result, a recent study found that only 14 percent of detained immigrants obtain representation. Such distances create obstacles to communication between the lucky few who are represented and their counsel. The great majority who are left to defend themselves are hindered by the detention centers’ inadequate legal resources, including a lack of foreign language materials.  As a result, cases take longer to complete, and the lack of legal briefs and supporting documentation places a greater burden on the already overworked immigration judges.

Our brief also argues that those facing the longest periods of detention are often those with the strongest cases for relief.  The brief further opines that immigration judges are well-equipped to make individualized bond determinations, and that those released on bond do not present a flight risk.

The full brief can be viewed here:  http://immigrationcourtside.com/wp-content/uploads/2018/07/AS-FILED-Rodriguez-Amicus-Brief-For-Filing.pdf.

We offer our heartfelt appreciation to attorneys David Lesser, Jamie Stephens Dycus, Adriel I. Cepeda Derieux, and Jessica Tsang of the law firm of WilmerHale for their outstanding efforts in the drafting of the brief.

Copyright 2018 Jeffrey S. Chase.  All rights reserved.

 

 

fullsizeoutput_40da.jpeg

Jeffrey S. Chase is an immigration lawyer in New York City.  Jeffrey is a former Immigration Judge, senior legal advisor at the Board of Immigration Appeals, and volunteer staff attorney at Human Rights First.  He is a past recipient of AILA’s annual Pro Bono Award, and previously chaired AILA’s Asylum Reform Task Force.

Blog     Archive     Contact\

*********************************************
The guys who had risked their lives to ditch the Star Chamber, Bills of Attainder, Cruel & Unusual Punishment, Ex Post Facto Laws, and were suspicious of unbridled coercion exercised by the Executive against individuals would roll over in their graves if they knew about the current abusive use of “civil immigration detention” by the Executive and the Legislature.
PWS
08-06-18

WHILE SESSIONS “BLOWS OFF” VIEWS OF “OUR GANG” OF RETIRED US IJs & BIA JUDGES, ARTICLE III (“REAL’) COURTS (& EVEN “OIL”) ARE PAYING ATTENTION – J.C. Andre of Sidley Austin Reports That 10th Circuit Has Remanded Matumona v. Sessions On The Issue Of Access To Counsel!

Judge Schmidt –

 

Thank you so much for the flattering post about our work with you all in recent months.

 

On that front, we have two updates for you all.

 

First, please see attached the as-filed versions of all three briefs filed last week in Cantarero-Lagos v. Sessions, CA5 No. 18-60115 (the petitioner’s brief, our amicus brief, and the nonprofit immigration legal services’ amicus brief).  As some of you will see, there were a couple of you whom we could not include as signatories to our brief because we received your joinders too late.  Our apologies for not being able to work those of you in by name, but we had a hard filing deadline of 10 p.m. PST on May 23.  Rest assured, however, that the helpful comments you gave us along the way are reflected in the brief.

 

Second, in case some of you were not yet aware, all of our work two months ago in Matumona v. Sessions, CA10 No. 18-09500, paid off.  On the government’s concession, the Tenth Circuit last week remanded the case to the BIA.  A copy of the remand order also is attached.

 

It’s been a pleasure and an honor to work with you guys so much over the last two months.

 

Hope everyone had a great Memorial Day weekend,

 

jc

 

JEAN-CLAUDE ANDRÉ

SIDLEY AUSTIN LLP
+1 213 896 6007
JCAndre@Sidley.com

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

Here’s a copy of the remand order:

2018-05-22_Order Remanding

And, here’s a link to Hon. Jeffrey Chase’s previous blog on the Matumona Amicus effort:

https://wp.me/p8eeJm-2ko

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

The pleasure is all ours, J.C.!  Thanks for everything that you and Katelyn Rowe have done for us and to Sidley Austin for agreeing to undertake this important pro bono project!

Always interesting how folks sometimes give your views more attention after you’re gone.

Sessions is setting a course for disaster in the Article III Courts. If he keeps on interfering with the judicial process and listening to only one side (as he has done all his life), DHS & DOJ are likely to get themselves so tied up in litigation that nobody will be deported as the Immigration Court system disintegrates and the Article IIIs move in to clean up the mess.

My current Immigration Law & Policy students at Georgetown Law seemed surprised to learn that there is a so-called “court system” in America where the Chief Prosecutor appoints the judges, sets the rules, and can change the result of any decision that he doesn’t like.  Sure sounds like something out of a Kafka novel or the Country Report on a Third World dictatorship.

PWS

05-30-18

 

HON. JEFFREY CHASE: In-Depth Analysis Of “Our Gang’s” Amicus Brief In Matter of W-Y-C- & H-O-B-

https://www.jeffreyschase.com/blog/2018/5/28/amicus-brief-filed-in-w-y-c-h-o-b-appeal

Amicus Brief Filed in W-Y-C- & H-O-B- Appeal

On May 23, an amicus brief was filed in the U.S. Court of Appeals for the Fifth Circuit on behalf of a group of 13 former immigration judges (including myself) and BIA members in the appeal of the BIA’s precedent decision in Matter of W-Y-C- & H-O-B-.  In that decision, a three-judge panel of the BIA held that an asylum applicant must clearly delineate its proposed particular social group before the immigration judge.  The Board held that the asylum applicant may not alter the social group formulation on appeal to the BIA, citing the “inherently factual nature of the social group analysis.”

Our brief argues that the Board’s reasoning is flawed.  The Board has held that the determination of whether a particular social group is cognizable is a question of law which the Board may review de novo.  Our brief also points out that the Board’s arguments as to why it will generally not consider a new group on appeal overlooks the fact that it has done just that in the past.

One member of our group, former BIA chairperson Paul W. Schmidt, was the author if the Board’s 1996 landmark decision in Matter of Kasinga, the first BIA precedent to grant a gender-based asylum claim.  Two other members of our group, former Board Members Gus Villageliu, and Lory D. Rosenberg,  respectively joined in the majority opinion and wrote a concurring opinion in Kasinga.  As the three pointed out in the drafting process, the particular social group that the Board approved in that case was neither delineated before the IJ nor proposed by either party on appeal.  It was crafted for the first time by the Board itself, in a manner that was consistent with the factual record below and which allowed the Board to grant relief. The three noted that the ability of the Board itself to alter the group’s contours is often necessary to allow an en banc Board to reach consensus.

Our brief also pointed to the Board’s decision in Matter of M-E-V-G- to remand the record where “the respondent’s proposed particular social group has evolved during the pendency of his appeal.”  We also point out how circuit courts have frequently cited to the Board’s decades-long practice of clarifying proposed groups.

Our brief additionally underscores the extreme complexity of particular social group formulation, particularly in light of the highly-criticized additional requirements of particularly and social distinction imposed by the Board in recent years.  We note that group delineations will often be made by pro se respondents, often with a limited mastery of English, sometimes in detained facilities with limited access to counsel or law libraries.

This was the sixth Amicus brief filed by our group.  We are most thankful for the outstanding assistance of attorneys Jean-Claude Andre and Katelyn Rowe of the law firm of Sidley Austin for lending their assistance pro bono for the second time in the drafting of our group’s brief.  We also acknowledge the distinguished counsel for the respondents, led by Fatma Marouf of Texas A&M Law School, Geoff Hoffman of the University of Houston Law Center, and Deborah Anker of Harvard Law School.

The link to our full brief is here:  http://immigrationcourtside.com/wp-content/uploads/2018/05/Cantarero-Amicus-Brief.pdf

The cooperation and assistance of so many brilliant minds and caring hearts is a source of great comfort in these challenging times.

Copyright 2018 Jeffrey S. Chase.  All rights reserved.

 

 

fullsizeoutput_40da.jpeg

Jeffrey S. Chase is an immigration lawyer in New York City.  Jeffrey is a former Immigration Judge, senior legal advisor at the Board of Immigration Appeals, and volunteer staff attorney at Human Rights First.  He is a past recipient of AILA’s annual Pro Bono Award, and previously chaired AILA’s Asylum Reform Task Force.

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

It’s a privilege to be part of a team with Jeffrey and my other colleagues. Unfortunately, however, the all-out assault on Due Process, fundamental fairness, and human decency by Trump & Sessions means that we’re busy all the time.

PWS

05-29-18