GARY SAMPLINER @ WASHPOST — The DMV Can Turn Abbott’s White Nationalist Stunt Into A “Win – Win!” — It Requires A Durable Approach! — Don’t Expect It To Come From The Biden Administration!

Gary Sampliner
Gary Sampliner
Senior Consultant for Advocacy
Shoulder to Shoulder

https://www.washingtonpost.com/opinions/2022/09/09/dc-grateful-texas-migrants/?utm_campaign=wp_afternoon_buzz&utm_medium=email&utm_source=newsletter&wpisrc=nl_buzz&carta-url=https%3A%2F%2Fs2.washingtonpost.com%2Fcar-ln-tr%2F37e0c1d%2F631b9b1ff3d9003c58ca5081%2F598a8acf9bbc0f6826fe4cb8%2F50%2F67%2F631b9b1ff3d9003c58ca5081&wp_cu=565797071f2aa4e140538667638665f9%7CC0D6D8DF75AF4203E0430100007FC096

Opinion by Gary Sampliner

September 9, 2022 at 10:00 a.m. ET

Gary Sampliner is a director of JAMAAT (Jews and Muslims and Allies Acting Together) and a member of the Bethesda Jewish Congregation, which with Bradley Hills Presbyterian Church and the Maqaame Ibrahim Islamic Center is working to assist arriving migrants and asylum seekers. JAMAAT is a member organization of the Interfaith Immigration Coalition.

Gratitude might not be the reaction Texas Gov. Greg Abbott (R) was expecting when he began sending frequent busloads of migrants and asylum seekers to the greater D.C. area. But gratitude, warmth and a renewed sense of collective responsibility are the responses I have seen as D.C.-area organizations and faith communities (and, most recently, its government) have stepped up to welcome and support newcomers.

With Abbott’s bus initiative — a costly venture likely to be funded in large part by Texas taxpayers — we’ve seen an apparent strategy to inflict maximum pain on our region and score political points, using vulnerable people as weapons aimed at pressuring the Biden administration into taking more drastic measures to seal our nation’s southern border.

But, despite the deeply cynical nature of Abbott’s plans, we might actually owe him a debt of gratitude.

We know that providing transportation is one part of establishing a dignified reception system for people seeking safety, and we’ve witnessed repeatedly the long-term payoffs to our communities and nation when we offer support to those in need of refuge.

The D.C. area has been generous in welcoming migrants fleeing persecution. With community and government support, Virginia has been the third-highest recipient of recent Afghan refugees to the United States, and Maryland is not far behind. My own synagogue and the church and mosque with whom we share our building have been active in helping welcome Afghan refugees to the area since 2017. The Jewish-Muslim community organization I help to direct has been working to get other interfaith partnerships involved in similar efforts.

Afghan arrivals are not the only ones receiving a warm reception. With the help of some heroic community and faith groups — many of which are part of the Migrant Solidarity Mutual Aid Network — our area has mobilized quickly to welcome the migrants being bused here from the southern border. These tremendous efforts have demonstrated, yet again, the area’s commitment to extending welcome and hospitality to those in need.

As with the public-private, multisector approach used in Afghan and other refugee resettlements, we need all hands on deck to welcome new arrivals to the area. We need as many available resources as possible, including the support of local, state and federal governments, faith groups, nonprofit organizations and community volunteers.

It is heartening to see D.C. Mayor Muriel E. Bowser (D) now stepping up to the challenge and opportunity posed by the arriving migrants. On Thursday, she announced the establishment of an Office of Migrant Services, with an initial allocation of $10 million, to meet the needs of the migrants who are moving elsewhere or intending to reside here. As an official “Welcoming City,” D.C. government assistance should be an essential element of the response to welcome migrants to our region — especially considering that, as a majority of the D.C. Council has told Bowser, D.C. is expected to have a surplus of around $500 million in fiscal 2022 — even though D.C. has good reason to request Federal Emergency Management Agency reimbursement to help satisfy the overriding federal responsibility over immigration matters.

But the need for private and community support for the incoming migrants remains critical for their successful integration into our community. Though my organizations’ work with the Afghan community continues, we’ve begun to provide various types of assistance to the newcomers being bused here. We are pleased to see and strongly encourage fellow faith communities and groups around the area to join us in this important work of welcome and are pleased when they do. This is an opportunity to demonstrate the best of who we are in the face of unprecedented levels of forced dislocations worldwide.

The bottom line is this: If we want to continue to live up to our values, many more of us need to step up to assist the new arrivals. And if we can meet this challenge, we will set an example for the rest of our country to follow.

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

One frequent mistake is to view this situation as “an emergency” or “temporary.” That leads to “short-term thinking” — throw some money at it, energize volunteers, and “hold the fort” until the so-called “crisis” subsides.

Problem is, money runs out, volunteers burn out or get called to pitch in on other issues, and the media turns its attention elsewhere. But, refugees and asylees will continue to come. 

And, the better we treat our new arrivals, the more who will develop ties here and choose the DMV as their U.S. residence. While nativists like Abbott view this as a “crisis” and an “invasion,” I agree with Gary that it’s a great opportunity for us and these migrants. We’ve lived the DMV area for almost 50 years. Most of the growth and prosperity over that time can be linked, directly or indirectly, to recent immigrants, both with and without documents!

In many ways, the situations in other countries that drive migration are worse than at any time since the end of the Cold War. And, it’s not getting better, at least in the short run. Meanwhile, our legal refugee and asylum systems remain a shambles, despite the Biden Administration’s promise to do better than the Trump White Nationalist kakistocracy.

For example, one  of the largest, probably the largest, flow of refugees in the Western Hemisphere is from Venezuela. And, contrary to the restrictionist blather, the vast majority of the six million who have fled Venezuela are NOT in the U.S. Colombia has received at least 1.8 million, where the U.S. has fewer than 350,000. 

But, there is no immediate prospect that most Venezuelans will return or stop coming. Nor is there any chance that countries like Colombia are going to “up their share” so that the U.S. can take fewer!

Yet, the Biden Administration has failed to provide consistent, helpful, guidance on Venezuelan asylum at either DHS or DOJ. An improved and better BIA, with expert judges committed to a proper application of asylum law, should have issued appropriate precedents that could have been a basis for getting tens of thousands of grantable Venezuelan asylum cases off the endless backlogs and on the road to green cards. 

But, Garland continues to mismanage asylum law at all levels. He employs unfocused politicos, unqualified Trump-era bureaucrats, and judges who got or retained their jobs under Sessions or Barr because of their actual or perceived willingness to unlawfully deny asylum. Nor has DHS implemented any semblance of the necessary, realistic, robust overseas refugee program for Venezuela, Haiti, and the Northern Triangle! 

Mayorkas has “beefed up” the TPS program for Venezuela. But, by its own terms, that’s not a long-term solution. They extended TPS for Haitians while denying recent arrivals their legal rights to seek asylum and inexplicably returning thousands to the dangerous, failed state without any process at all. It’s a farce — but one with ugly racial overtones and a horrible message! To say that Biden’s refugee and asylum programs are screwed up would be an understatement!

Refugee flows, including asylum, are both inevitable and continuing. They are an important, beneficial, and essential component of legal immigration.

Those seeking legal refuge can be forced largely into the underground system, as Trump tried to do; largely admitted in an orderly legal fashion as progressive experts urge; or there can be a haphazard “combination of the two” which is what we have now! 

Undoubtedly, refugees and asylees are good from America. They will get jobs, make contributions, and have families of U.S. citizens. The tax base and U.S. institutions will benefit. But, that’s the “long view.” 

In the short run, migrants need food, affordable housing, orientation, and education. Kids will need more teachers with specialized skills in a time of nationwide teacher shortage and politicized demonization of educators and administrators. School populations will increase. That takes money. Taxpayers and the politicians answerable to them are notoriously focused on the now, rather than the whenever.

So, the pressing issue is how to institutionalize, regularize, and fund successful migrant resettlement. In other words, how do we get from here to there in the absence of effective government leadership, planning, and funding – often on multiple levels?

I wish I had the answers. But, I don’t. We have to hope that Gary and others like him outside the dysfunctional government structure do! Because, ready or not, migration will  continue! See, e.g., https://immigrationcourtside.com/2022/09/10/🇺🇸🗽👍🏼-immigrant-nation-teas-truth-wisdom-americans-views-on-immigrants-and-immigration-are-overwhelmingly-positive/.

Meanwhile, Texans might want to give the financial shenanigans of their corrupt, inept, so-called Governor a closer look! According to NBC, he’s spending an average of $1,400+ for each individual bussed from the border to DC. A commercial coach ticket is $200-300! https://www.nbcdfw.com/investigations/abbotts-border-buses-cost-1400-per-rider-taxpayers-could-be-stuck-with-bills/2993548/ 

Texans will have a chance to replace Abbott with a real Governor, Democrat Beto O’Rourke in November.

🇺🇸 Due Process Forever!

PWS

09-11-22

 

⚖️THE GIBSON REPORT — 09-96-22 — Compiled By Elizabeth Gibson, Managing Attorney, NIJC — CAIR Seeks Examples Of “IJs using [boilerplate] and engaging in little/no actual legal analysis in a particular case.” — NIJC Looking For “PD Stories” — Many Helpful Practice Advisories & Alerts!

Elizabeth Gibson
Elizabeth Gibson
Managing Attorney
National Immigrant Justice Center
Publisher of “The Gibson Report”

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Weekly Briefing

 

This briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The contents of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.

 

CONTENTS (jump to section)

  • ◦NEWS
  • ◦LITIGATION & AGENCY UPDATES
  • ◦RESOURCES
  • ◦EVENTS

 

NEWS

 

Biden Administration Has Admitted One Million Migrants to Await Hearings

NYT: Under a pandemic-driven public health rule, migrants have been turned away at the U.S. border 1.7 million times since Mr. Biden took office, a figure that includes some people who have attempted to cross multiple times. But the United States has allowed others to stay temporarily for a range of reasons, including because Mexico or their own countries will not take them back. Nearly 300,000 of those who have been allowed in — including many heads of families — have been outfitted with tracking devices so that Immigration and Customs Enforcement can keep tabs on their whereabouts while they await their day in court. See also ‘Tale of two borders’: Mexicans not seen at busy crossings.

 

‘Human crisis’: Chicago seeks help as Texas buses over migrants

AlJazeera: Chicago Mayor Lori Lightfoot recently told reporters that about 125 migrants have arrived in the city on board buses from Texas, including 50 people who arrived on Sunday alone, most of them families. See also Texas spends more than $12 million to bus migrants to Washington, DC, and New York; Chicago welcomes immigrants bused out of Texas with open arms.

 

No longer young, ‘dreamers’ uneasily watch a legal challenge

WaPo: The oldest recipients were in their early 30s when DACA began and are in their early 40s today. At the same time, fewer people turning 16 can meet a requirement to have been in the United States continuously since June 2007.

 

Dozens of migrant children reported missing in Houston, raising alarms

Reuters: The agency found that since late last year, 57 unaccompanied migrant kids had been reported missing in Houston, the HHS official, and two additional sources familiar with the situation, said. Included in the count were nine kids who ran away from HHS shelters in the Houston area, the official said.

 

Venezuela’s refugee crisis similar to Ukraine’s in scale, but not aid

WaPo:   The exodus from Venezuela has grown to the point that its refugee numbers are now close to those displaced by the conflict in Ukraine — but the European crisis has drawn disproportionately more financial support, according to an advocacy group. See also Ecuador begins regularization process for thousands of Venezuelan migrants.

 

California may be 1st to ban solo confinement for immigrants

CA: California would be the first U.S. state to ban solitary confinement in private civil detention centers used for immigrants who are under threat of deportation, under a bill that advanced Tuesday.

 

Feds Say Biz Lined Pockets With Migrant Kids’ Shelter Funds

Law 360: Federal prosecutors accused a Texas contractor of misappropriating hundreds of thousands of dollars worth of funding from the U.S. Department of Health and Human Services that was intended to be used for housing unaccompanied migrant children.

 

Afghan Resettlement Efforts Will Now Prioritize US Family Ties

Law 360: The Biden administration will focus on bringing over Afghans who have U.S. families in the next stage of its effort to relocate those fearing for their lives under the Taliban’s rule, a State Department spokesperson said Thursday.

 

LITIGATION & AGENCY UPDATES

 

American Samoa Gov’t Argues Against Birthright Citizenship

Law 360: The American Samoa government told the U.S. Supreme Court Monday that imposing birthright citizenship on American Samoans would deprive them of the right to decide their status, going against American Samoa-born individuals who earlier appealed to the high court.

 

1st Circ. Calls Removal Statute ‘Hard-Hearted’ In Affirming BIA

Law 360: The First Circuit was bound Wednesday to stand by an immigration appeals board decision that ordered a Guatemalan man removed from the country despite the hardship it would cause his children, saying the call was in line with the “hard-hearted” and “stringent statutory requirement.”

 

1st Circ. Says Fuzzy Memory Of Assault Doesn’t Bar Asylum

Law 360: The Board of Immigration Appeals was wrong when it refused to consider a psychological report explaining why an El Salvadoran teen seeking asylum had trouble remembering the details of sexual assaults that occurred when she was a child, a split First Circuit has ruled.

 

CA3 On Credibility, CAT: Njoka V. Garland (unpub)

LexisNexis: [U]nder the law of this circuit, an adverse credibility finding is “not determinative” of a claim for CAT protection…The Board was thus obliged to also consider Njoka’s independent evidence in the context of his claim for CAT protection.

 

CA9 On INTERPOL Red Notice, CAT: Gonzalez-Castillo V. Garland

LexisNexis: This court has long interpreted “serious reasons to believe,” the standard set by the statute for the serious nonpolitical crime bar, as equivalent to probable cause. In this case, the INTERPOL Red Notice cannot, by itself, establish probable cause.

 

Another CA5 Pereira / Niz-Chavez Remand: Parada V. Garland – Now Published!

LexisNexis: [T]he BIA’s decision to deny Parada’s motion to reopen was based on a legally erroneous interpretation of the statutes governing Notices to Appear and the stop-time rule. The Supreme Court has since reinforced the holding of Pereira and held—again— that to trigger the stop-time rule, a Notice to Appear must come in the form of “a single document containing all the information an individual needs to know about his removal hearing.”

 

CA9: BIA Must Consider New Evidence For Immigration Credibility

Law 360: The Ninth Circuit revived a Sikh man’s second attempt at obtaining asylum in the United States, finding that the Board of Immigration Appeals should have considered new information he presented in his later bid about the dangers of living as a Sikh in India.

 

9th Circ. Rules Ariz. Drug Convictions Trigger Deportations

Law 360: A Ninth Circuit panel on Monday ruled that Arizona’s drug possession laws can support federal immigration removal orders despite banning a broader list of substances than the federal drug schedule because the Grand Canyon State requires juries to determine the specific drug type involved in each conviction.

 

Calif. Judge Imposes New Rules For Migrant Youth Placement

Law 360: The U.S. Department of Health and Human Services’ Office of Refugee Resettlement must notify young detained migrants and their counsel when it decides against releasing them to their parents or relatives and provide reasons for withholding release, a California federal judge has ordered.

 

ICE Inks $4.8M Deal With Migrant Teens In Detention Litigation

Law 360: U.S. Immigration and Custom Enforcement has agreed to pay $4.8 million to resolve a class action claiming the government routinely failed to consider safer options before transferring teens to adult detention facilities after they turned 18, according to a proposed settlement filed Thursday in D.C. federal court.

 

Judge Recommends Immigrant Class Cert. In NY Detainer Suit

Law 360: Immigrants suing New York’s Suffolk County and its sheriff’s office over their practice of holding people past their release date by request of U.S. Immigration and Customs Enforcement have won over a federal judge, who recommended their proposed class be certified.

 

Iranian Diversity Visa Applicants Say They Were Skipped Over

Law 360: Two California chapters of a national Muslim civil liberties group and 159 Iranian diversity visa applicants have sued the Biden administration in federal court, claiming they have been “skipped over” and “unreasonably delayed” in the processing of their applications “for no explicable reason.”

 

USCIS Extends and Expands Employment Authorization for Individuals Covered by DED for Liberia

USCIS: U.S. Citizenship and Immigration Services (USCIS) today published a Federal Register notice for the extension and expansion of eligibility for Deferred Enforced Departure (DED) for Liberians and explaining how eligible Liberians may apply for Employment Authorization Documents (EADs).

 

USCIS Resumes Cuban Family Reunification Parole Program Operations

USCIS: U.S. Citizenship and Immigration Services (USCIS) is resuming operations under the Cuban Family Reunification Parole (CFRP) program, beginning with pending CFRP program applications.

 

USCIS Updates Guidance Related to Religious Workers

USCIS: U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual to reorganize and expand on existing guidance related to special immigrant and nonimmigrant religious workers.

 

EOIR to Open Sterling Immigration Court

EOIR: The Executive Office for Immigration Review (EOIR) today announced it will open a new immigration court in Sterling, Virginia, on Oct. 3, 2022. The Sterling Immigration Court will include 19 immigration judges. It will be the second immigration court to open in the National Capital Region this calendar year.

 

Call for Examples: IJ Use of Boilerplate

CAIR: Peter Alfredson from CAIR Coalition’s Immigration Impact Lab is seeking examples of problems related to how IJs are using boilerplate addenda/statements of law in oral decisions. Please contact him at peter@caircoalition.org with any specific issues you’ve experienced with the addenda, including, but not limited to: IJs referring to the addenda but never actually providing them; addenda misrepresenting the law in a prejudicial way; and IJs using the addenda and engaging in little/no actual legal analysis in a particular case.

 

Call for Examples: PD stories (US v Texas)

NIJC: If you have examples of prosecutorial discretion you are willing to share (anonymously to your client if you wish), please fill out this form: Amicus Stories. Also: if you are a nonprofit and would be interested in signing on as an amici, please fill out this form: Joining Amici. In particular, we are thinking of cases that fit into the following categories: Grants or Denials under the Mayorkas Memo of PD for the purpose of seeking some non-EOIR benefit, such as: Eligibility for U visa, Eligibility for adjustment of status, Eligibility for SIJS. Grants or Denials under the Mayorkas Memo of PD based on particular humanitarian or unique considerations: Military service (self or family), Undercover or confidential informant situation, Family separation. DACA / DREAMers, MPP, Old convictions / rehabilitation. Stories (even if they predate the Mayorkas Memo) involving: Circumstances where individuals who would have been subject to 236(c) were not placed in removal proceedings, and the person was able to pursue relief with USCIS because no proceedings were ever initiated. Circumstances where individuals who could have been subject to reinstatement of a prior removal order did not have that order reinstated and were able to do things like pursue a U or T visa before USCIS, without being detained or placed in removal proceedings.

 

RESOURCES

 

 

EVENTS

 

 

To sign up for additional NIJC newsletters, visit:  https://immigrantjustice.org/subscribe.

 

You now can change your email settings or search the archives using the Google Group. If you are receiving this briefing from a third party, you can visit the Google Group and request to be added.

 

Elizabeth Gibson (Pronouns: she/her/ella)

Managing Attorney for Capacity Building and Mentorship

National Immigrant Justice Center

A HEARTLAND ALLIANCE Program

224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org

www.immigrantjustice.org | Facebook | Twitter

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

Thanks, Elizabeth!

Lack of analysis, prejudged cases, overt anti-immigrant bias, and absence of “applied” immigration, human rights, and due process expertise is an endemic problem at EOIR. Using canned law (some of it flat out wrong or at least questionable) in “addenda” appears to be another “built to fail,” due process denying, haste make waste “gimmick.”

Lousy analysis and basic mistakes appear in Federal Court rebukes of EOIR highlighted here, on LexisNexis, on ImmigrationProf  blog, and other resources on an almost daily basis. And, we by no means are able to catalogue all of the abject failures being cranked out by Garland’s EOIR — many of which would embarrass an L-1! Why not get 1) better judges, 2) a better BIA, and 3) better training?

Garland has been “nibbling around the edges,” at best. A few enlightened appointments of well-qualified “practical scholars” to newly created judgeships in a failed system of some 600 judges nationwide with a fatally flawed “Trump holdover” appellate body, the BIA, won’t cut it.

EOIR needs new, exceptionally well-qualified, dynamic, due process oriented expert leadership and a new BIA that will begin solving the problems rather than aggravating them and shuffling them on to the Circuits. Hopefully, the CAIR effort will lead to “dialing up the pressure” on Garland and his lieutenants to “get their collective heads out of the clouds and kick some tail at what (despite the efforts of Article III right wing hacks like Judge Aileen “Loose” Cannon to claim the title) remains “America’s worst court system” — where due process, fundamental fairness, legal scholarship, and best practices “go to die.” 🪦

I don’t dispute that America’s judicial system is failing from top to bottom. But, unlike the  Article IIIIs, where there are long-term structural issues with constitutional roots that make “quick fixes” impossible, EOIR is “wholly owned and operated” by the Executive. 

Systemic institutional reforms like replacement or reassignment of unqualified judicial and administrative personnel could, and should, have been a top priority for the Biden Administration. But, instead the tone deaf “it’s only immigration not a real priority” approach by Garland has allowed life-threatening legal malfeasance at EOIR to fester, spread, and undermine confidence in the ability of our democracy to survive.

News flash for Garland: EOIR is where the “rubber meets the road” for American justice. You continue to ignore and downplay the need for bold decisive corrective action at your own peril — and our nation’s!

🇺🇸Due Process Forever!

PWS

09-07-22

🇺🇸🗽IN COMPETITIVE MICH 3RD, FORMER BIA ATTORNEY HILLARY SCHOLTEN REACHES VOTERS WITH VALUES-BASED CAMPAIGN FOCUSING ON LISTENING, SOLVING PROBLEMS, ADDRESSING LOCAL ISSUES, & PROTECTING INDIVIDUAL LIBERTIES! — Lissandra Villa Huerta @ BoGlo Reports!

Hillary Scholten
Hillary Scholten
Democrat
Candidate for Congress
Michigan 3rd District
Lissandra Villa Huerta
Lissandra Villa Huerta
National Political Reporter
Boston Globe
PHOTO: BoGlo Website

https://www.bostonglobe.com/2022/08/27/nation/democrats-michigan-hope-capitalize-swell-support-abortion-rights/

GRAND RAPIDS, Mich. — Hillary Scholten, a 40-year-old Democratic congressional hopeful, only had to knock on a handful of doors last Saturday in a residential neighborhood here before she encountered Maria D’Angelo, who was sitting on her front porch, about to have coffee with her neighbor, Sara VanderArk.

Both women in the historically conservative but now Democratic-leaning district are overwhelmingly focused on a single issue this November: women’s rights.

“I’ve had to voice publicly and to family members that I never intended to tell that I’ve had abortions,” D’Angelo, a Democrat, told the Globe about the fallout from the Supreme Court’s June decision to overturn Roe v. Wade. VanderArk, who identifies as an independent, said she was inspired by the court ruling to join abortion rights protests and that her vote would largely hinge on the issue in the fall.

They are exactly the type of galvanized voters that Democratic candidates up and down the ballot in Michigan and across the country are hoping will give them a boost in the November midterm elections. Midterm years are historically bad news for the president’s party even without high inflation and sagging presidential approval ratings, but Democrats now are nursing a sliver of hope: They’re narrowing the enthusiasm gap — the motivation level of voters — and popular opinion on the issue of abortion is on their side.

That’s especially true in Michigan, a battleground state where, like Kansas before it, there has been a surge in the number of women who’ve registered to vote since Roe v. Wade was overturned in June after almost 50 years as settled precedent, according to an analysis by TargetSmart, a Democratic data firm. A recent poll commissioned by AARP, the interest group for older Americans, showed the issue was among voters’ top concerns. And Michigan’s new third congressional district, where Scholten is running, is a rare congressional race where Democrats aren’t just having to focus on defending their turf, they feel bullish about their odds of flipping the seat.

“The level of engagement on this issue is just so high,” Scholten told the Globe in an interview at her campaign office last weekend. “It’s the only thing I hear about. Women stop me in the grocery store and grab my arms and are like, please do something about this.”

Scholten, an attorney and former Department of Justice official, said she saw a surge of volunteers, fund-raising, and willingness of voters to answer doors and talk to her after the Dobbs decision.

This may sound strange in a district that has historically voted Republican. Its congressman is Republican Peter Meijer, a scion of a Midwest grocery store dynasty, and its voters have backed Republicans in the last three presidential elections. But the district’s newly drawn boundaries that are in place for the first time this election cycle make it significantly friendlier to Democrats. Since Meijer, who was one of just 10 House Republicans to vote to impeach former President Trump, lost his primary to his more right-wing and anti-abortion opponent John Gibbs, Democrats hope to motivate the more Democratic-leaning voters in Grand Rapids and its suburbs who are now part of the district and are mad as hell about the abortion rights repeal.

“Everywhere around the state, when we knock on doors, people bring up abortion — it’s not a negative anywhere,” said Michigan state Senator Winnie Brinks. “People used to be pro-choice, but they were quiet about it. Now they’re not quiet about it. They’re like, ‘Nope, this is on the line, we’re gonna talk about it.’”

That was clear in interviews with voters in downtown Grand Rapids for the city’s “3rd Thursdays,” where residents congregate for live music and can go into the city’s art museum for free courtesy of the Meijer Foundation. It was clear in interviews on the other end of the district on the shore of Lake Michigan, where voters strolled watching the sun set over the lake on a Friday night. And it was clear in the views expressed by voters Scholten met knocking on doors.

“I will for sure be there to vote,” said Erica Kochaney, a Democrat and Grand Rapids resident who was at Grand Haven State Park on Friday evening. Reproductive freedom “is my number one reason for getting out there for sure.”

On the Scholten-Gibbs race and the issue of abortion, she added, “I know where she stands on it, and I’m fine, and I feel like I know where he stands on it, and I’m not fine with it.”

. . . .

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

Read the rest of Lissandra’s coverage at the link.

A “home grown daughter” of her Michigan District, Hillary is an experienced, resilient, courageous, values-based problem solver committed to making Government work for the common good rather than infringing on individual liberties, invading bedrooms and doctors’ offices, banning books, interfering with elections, and “dumbing down” education.

She is also a highly successful working parent who knows that the same teamwork, caring, creativity, and unselfishness that goes into the challenges of raising a family also can apply on a larger scale to American society. She knows that problems like inflation, infrastructure, climate change, health, safety, and education affect all Americans, regardless of party affiliation.

As a DOJ attorney working in one of the most fractured areas of American law and public policy, Hillary has seen first hand what works and what doesn’t work in today’s Government. She knows that “same old, same old” won’t get the job done for 21st Century America! She seeks a better America — for all Americans, regardless of race, color, creed, gender, or status.

Several weeks ago I wrote about under-appreciated American “good government hero” Frances Perkins, our first female cabinet secretary, appointed by FDR.  https://immigrationcourtside.com/2022/08/14/%e2%9a%96%ef%b8%8f%f0%9f%97%bd%f0%9f%a6%b8%f0%9f%8f%bb%e2%99%80%ef%b8%8f%f0%9f%8e%96-a-true-american-hero-gets-her-due-frances-perkins-was-the-mother-of-americas-safety-net/

Frances Perkins
Hillary Scholten is following in the footsteps of another “Good Government Trailblazer,” Frances Perkins (1880-1965)
U.S. Secretary of Labor (1933-45)
PHOTO: Public realm

Perkins was driven by her life experiences and values, yet courageously and effectively “worked the system” (then basically an “Old Boys’ Club”) to achieve successes and innovations that have shaped our nation for generations (Social Security is just one of her achievements). Hillary Scholten embodies qualities that made Perkins a successful leader who made life better for all Americans!

No one legislator can do it all. But if anyone can bring fact-based legislating, the hopes, fears, and positive values of people in the heartland, and informed debate to our national legislative process, it’s Hillary and other “practical problem solvers” like her! Values, progress, innovation, and humanity over political expediency — that’s Hillary! She is a good listener and team-builder — willing and able to find common ground with those who might not share all her views.

I know Hillary as an unusual combination of intellectual and moral toughness with kindness, compassion, humanity, and common sense. She’s one of the nicest people you’d ever want to meet — makes you want to be on her team! She gets things done by inspiring others, not by threatening , demeaning, or excluding them!

The good folks of Mich 3 have a chance to do something really great — for their own district and for the future of America — by sending Hillary to Washington! We need you, Hillary, now more than ever!

🇺🇸 Due Process Forever!

PWS

09-06-22

⚖️🗽🇺🇸🦸‍♂️ NDPA SUPERLITIGATOR RAED GONZALEZ DRUBS GARLAND AGAIN! — “Who else could persuade CA5 to agree with CA9, and get an award of costs,” asks Dan Kowalski of LexisNexis Immigration Community? — When will the unconscionable failure of immigrant justice at Garland’s Department of “Justice” finally end? When our nation’s democracy goes down in flames?🔥 ♨️

Dan Kowalski
Dan Kowalski
Online Editor of the LexisNexis Immigration Law Community (ILC)
Raed Gonzalez ESQ
Raed Gonzalez ESQUIRE
Chairman, Gonzalez Olivieri LLP
Houston, TX
PHOTO: best lawyers.com

From Dan:

Another CA5 Pereira / Niz-Chavez Remand: Parada v. Garland (unpub.)

https://www.ca5.uscourts.gov/opinions/unpub/19/19-60425.0.pdf

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/another-ca5-pereira-niz-chavez-remand-parada-v-garland#

“[T]he BIA’s decision to deny Parada’s motion to reopen was based on a legally erroneous interpretation of the statutes governing Notices to Appear and the stop-time rule. The Supreme Court has since reinforced the holding of Pereira and held—again— that to trigger the stop-time rule, a Notice to Appear must come in the form of “a single document containing all the information an individual needs to know about his removal hearing.” Niz-Chavez v. Garland, 141 S. Ct. 1474, 1478, 1486 (2021). That did not occur in this case, as the Notices to Appear served on Parada and her daughter did not contain the time or date for their removal proceedings. Thus, because “[a] putative notice to appear that fails to designate the specific time or place of the noncitizen’s removal proceedings is not a ‘notice to appear under section 1229(a),’ and so does not trigger the stop-time rule,” Pereira, 138 S. Ct. at 2113–14 (quoting 8 U.S.C. § 1229b(d)(1)(A)), the deficient Notices to Appear received by the Paradas did not stop the clock for the Paradas. …  [O]ne of two keys must fit before the stop-time rule can be unlocked: service of a valid Notice to Appear or commission of an enumerated offense. The latter has not occurred here as no one has asserted that either of the Paradas has committed such an offense. And we have already concluded that the former has not occurred because the Notices to Appear served on the Paradas lacked the time and date of their hearing. Thus, the stop-time-rule box remained locked, the Paradas’ clock never stopped, and they accrued the necessary 10 years to satisfy the physical-presence requirement for cancellation of removal. In so concluding, we agree with the Ninth Circuit [emphasis added] which also held that “[b]y its terms . . . the stop-time rule applies to only the two circumstances set out in the statute, and a final order of removal satisfies neither.” Quebrado Cantor, 17 F.4th at 871. … To return to the analogy above, when Congress provided the two exceptions to the physical-presence requirement, it created all the keys that would fit. It did not additionally create a skeleton key that could fit when convenient. To conclude otherwise “would turn this principle on its head, using the existence of two exceptions to authorize a third very specific exception.” Quebrado Cantor, 17 F.4th at 874. Instead, “the ‘proper inference’ is that Congress considered which events ought to ‘stop the clock’ on a nonpermanent resident’s period of continuous physical presence and settled, in its legislative judgment, on only two.” Id. (quoting Johnson, 529 U.S. at 58). Lacking either here, the BIA committed a legal error in concluding otherwise and finding that the Paradas did not satisfy the physical-presence requirement to be eligible for cancellation of removal. For the foregoing reasons, the petition for review is GRANTED and the case is REMANDED to the BIA for further proceedings consistent with this opinion. … IT IS FURTHER ORDERED that respondent pay to petitioners the costs on appeal [emphasis added] to be taxed by the Clerk of this Court.”

[Yet another victory for Superlitigator Raed Gonzalez!  Who else could persuade CA5 to agree with CA9, and get an award of costs?]

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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Male Superhero
Due Process Superheroes like Houston’s Raed Gonzalez are standing up for the rights of EVERYONE in America!
PHOTO: Creative Commons

Kudos to Raed for “taking it to” America’s worst “courts” in America’s most “immigrant-unfriendly” Circuit! 

Tons of “rotten tomatoes” to Garland for his horrible mismanagement of EOIR, OIL, and the legal aspects of immigration policy at DOJ!

Rotten Tomatoes
Rotten Tomatoes
Garland & his lieutenants deserve appropriate recognition for failing to bring long-overdue reforms to America’s most dysfunctional “parody of a court system” — EOIR!
PHOTO: Creative Commmons

Immigration expert Professor Richard Boswell of UC Hastings College of Law asks: “Can someone explain why the government has been so obstinate on these cases?  I like the fee award but I doubt that it has much impact on their behavior.”

Professor Richard Boswell
Professor Richard Boswell
UC Hastings Law
PHOTO: LinkedIn
Professor Boswell asks the right question. So far, “Team Garland” has no answers!

I wish I knew, my friend, I wish I knew! There is no rational excuse for Garland’s abject failure to: put EOIR and OIL under progressive expert leadership committed to human rights and due process; replace the many weak “Trump holdover appointees” at the BIA with expert real, professionally competent judges; weed out more of the “deadwood” on the immigration bench; bring in qualified experts as EOIR Judges who could potentially create an existential improvement in the composition, performance, and procedures of the entire Federal Judiciary that would go even beyond the essential task of saving the lives of migrants; and finally make Constitutional Due Process and equal justice for all real at the “retail level” of our American Justice system!

If our democracy fails — certainly an unhappy possibility at this point in time — future historians will undoubtedly dissect the major responsibility stemming from Garland’s inexplicably weak, disconnected, and inept performance in ignoring the dangerous dysfunction in our Immigration Courts and Immigration Judiciary. 

The scurrilous attack on our democracy by far-right demagogues started with racist lies about immigrants, continued with the weaponizing of the Immigration Courts, and evolved with the compromising of the Article III Judiciary! But, it certainly hasn’t ended there!

Getting rid of the leftovers of the “Trump Kakistocracy” at DOJ and EOIR should be one of the top priorities of the Biden Administration’s “campaign to save American democracy!” Why isn’t it?

The unconscionable failure of Garland’s chief lieutenants, Lisa Monaco, Vanita Gupta, Kristen Clarke, and Elizabeth Prelogar — all of whom supposedly have some experience and expertise in constitutional law, human rights, civil rights, racial justice, and legal administration (talk about a shambles at EOIR!) — to get the job done for immigrant justice at DOJ also deserves to go “under the microscope” of critical examination. 

How do they glibly go about their highly paid jobs daily while migrants suffer and die and their attorneys are forced to waste time and struggle against the absurdist disaster at EOIR? Can any of these “out of touch” bureaucrats and politicos even imagine what it’s like to be practicing at today’s legally incompetent, insanely mal-administered, intentionally anti-due-process, overtly user unfriendly EOIR?

By the grace of God, I’m not practicing before the Immigration Courts these days! But, after recent conversations with a number of top practitioners who are being traumatized, having their precious time wasted, and seeing their clients’ lives threatened by EOIR’s stunning ongoing incompetence and dysfunction, I don’t understand what gives high-level political appointees and smug bureaucrats the idea that they are entitled to be “above the fray” of the godawful dysfunction, downright stupidity, and human trauma at EOIR for which they are fully accountable!

One practitioner opened their so-called “EOIR Portal” to show me how they were being mindlessly “double and triple booked,” sometimes in different locations, even as we spoke. Cases set for 2024 were “accelerated” — for no obvious reason — to October 2022 without advance notice to or consultation with the attorney — a clear violation of due process! Asylum cases that would require a minimum of three hours for a fair hearing were being “shoehorned” into two-hour slots, again without consulting the parties!

Long a backwater of failed technology, the “powers that be” at EOIR and DOJ are misusing the limited, somewhat improved technology they now possess to make things worse: harassing practitioners, discouraging representation, and further undermining due process with haste makes waste “Aimless Docket Reshuffling.” Because of EOIR’s gross mismanagement, more Immigration Judges are actually producing more backlog, issuing more wrong decisions, and generating more unnecessary non-dispositive time-wasting motions. It’s an abuse of power and public funding on a massive, mind-boggling scale that undermines our entire justice system!

It seems that the “malicious incompetence” of the Trump DOJ has been exchanged for “just plain incompetence and intransigence” at Garland’s DOJ. Is this “change we should embrace?” Hell no!

Let’s hope that the real superheroes like Raed Gonzalez, folks working in the trenches of our failed justice system, can bail the rest of us out and inspire others to use all legal and political means at our disposal to rise up against Garland’s intransigence on immigration, human rights,  and racial justice at DOJ! 

I agree with President Biden that the extreme, insurrectionist far-right is the greatest threat to American democracy at this moment. But, it is by no means the ONLY one! It’s time for everyone committed to our nation’s future as a constitutional democracy to look closely at the deadly EOIR farce that threatens humanity, undermines the rule of law in America, and squanders tax dollars and demand positive change! Now!

It’s not rocket science, 🚀 even if it is inexplicably “over Garland’s head!”

Alfred E. Neumann
Has Alfred E. Neumann been “reborn” as Judge/AG Merrick Garland? “Not my friends or relatives whose lives as being destroyed by my ‘Kangaroo Courts.’ Just ‘the others’ and their immigration lawyers, so who cares, why worry about professionalism, ethics, and due process in Immigration Court?”
PHOTO: Wikipedia Commons

🇺🇸 Due Process Forever!

PWS

09-03-22

🏴‍☠️“ANY REASON TO DENY”🤮 — GARLAND BIA’S BIASED, ANTI-ASYLUM JURISPRUDENCE CONTINUES TO GARNER PUSHBACK FROM ARTICLE III’s — Dem AG Needs To Pay Attention To Assault On Democracy, Rule Of Law Taking Place In HIS Dysfunctional “Courts!” — Garland Reportedly Plans More Backlog-Building, Due-Process-Denying “Aimless Docket Reshuffling” (“ADR”)!

Lady Injustice
“Lady Injustice” has found a home at Garland’s dysfunctional EOIR!
Public Realm

Here are about a week’s worth of reports from Dan Kowalski at LexisNexis Immigration Community on the continuing disintegration of justice in “Garland’s Courts:”

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca3-on-credibility-cat-njoka-v-garland

CA3 on Credibility, CAT: Njoka v. Garland

Njoka v. Garland (unpub.)

“[W]e conclude that the Board erred in affirming the IJ’s denial of CAT protection. The Board’s sole justification for that affirmance was the adverse credibility finding. The Board suggested that, under Fifth Circuit precedent, an adverse credibility finding defeats a claim for CAT protection. See Ghotra v. Whitaker, 912 F.3d 284, 289 (5th Cir. 2019). But under the law of this circuit, an adverse credibility finding is “not determinative” of a claim for CAT protection.1 Ibarra Chevez v. Garland, 31 F.4th 279, 288 (4th Cir. 2022); see Camara v. Ashcroft, 378 F.3d 361, 371 (4th Cir. 2004) (“Because there is no subjective component for granting relief under the CAT, the adverse credibility determination on which the IJ relied to deny [the petitioner’s] asylum claim would not necessarily defeat her CAT claim.”). The Board was thus obliged to also consider Njoka’s independent evidence in the context of his claim for CAT protection.2 See Camara, 378 F.3d at 371-72. Because the Board did not fulfill that duty, we will grant the petition for review in part and remand for the Board to do so.”

[Hats off to Rajan O. Dhungana!]

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https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca9-on-interpol-red-notice-cat-gonzalez-castillo-v-garland

CA9 on INTERPOL Red Notice, CAT: Gonzalez-Castillo v. Garland

Gonzalez-Castillo v. Garland

“Petitioner Oscar Gonzalez-Castillo was found to be ineligible for withholding of removal by an Immigration Judge (“IJ”) because there were “serious reasons to believe that [he] committed a serious nonpolitical crime” in his home country of El Salvador. 8 U.S.C. § 1231(b)(3)(B)(iii). The government only presented one piece of evidence supporting application of the serious nonpolitical crime bar, however. It was an INTERPOL Red Notice, described at greater length below. The Red Notice accused Gonzalez-Castillo of committing “strikes” on behalf of the gang MS13, allegedly committed on a date when Gonzalez-Castillo was in the United States rather than in El Salvador, based on the date of entry found by the IJ. We conclude that substantial evidence does not support the IJ’s finding, affirmed by the Board of Immigration Appeals (“BIA”), that Gonzalez-Castillo is ineligible for withholding of removal based on the serious nonpolitical crime bar. This court has long interpreted “serious reasons to believe,” the standard set by the statute for the serious nonpolitical crime bar, as equivalent to probable cause. In this case, the INTERPOL Red Notice cannot, by itself, establish probable cause. The allocation of the burden of proof in immigration proceedings does not change this outcome. We accordingly grant Gonzalez-Castillo’s petition for review in part and remand to the agency to consider whether Gonzalez-Castillo is eligible for withholding of removal. We also grant the petition as to his claim under the Convention Against Torture (“CAT”), because the record reflects that the agency failed to consider all of Gonzalez-Castillo’s testimony and statements about the harms he suffered in El Salvador at the hands of state actors, so we remand for more complete consideration of the CAT claim. We are not persuaded, however, by arguments in the petition for review challenging the evaluation of evidence that was discussed or by the argument that that the IJ failed sufficiently to develop the record. We dismiss the petition in part as to his claim for asylum, because the arguments Gonzalez-Castillo raises on appeal with respect to the one-year bar for asylum relief were not exhausted before the BIA.”

[Hats off to Amalia Wille (argued) and Judah Lakin, Attorneys; Nicole Conrad and Joya Manjur, Certified Law Students; University of California, Berkeley School of Law, Berkeley, California; for Petitioner, and John P. Elwood, Kaitlin Konkel, and Sean A. Mirski, Arnold & Porter Kaye Scholer LLP, Washington, D.C., for Amicus Curiae Fair Trials Americas!]

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https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca9-on-credibility-changed-conditions-sikhs-in-india—singh-v-garland

CA9 on Credibility, Changed Conditions (Sikhs in India) – Singh v. Garland

Singh v. Garland

“We have held that the Board of Immigration Appeals (BIA) may rely on a prior adverse credibility determination to deny a motion to reopen if that earlier finding factually undercuts the petitioner’s new argument. Greenwood v. Garland, 36 F.4th 1232, 1234 (9th Cir. 2022). But that does not mean the BIA can deny a motion to reopen just because that motion touches upon the same claim or subject matter as the previous adverse credibility finding. Here, Rupinder Singh submitted new evidence about religious persecution independent of the prior adverse finding. The BIA thus erred in holding that the earlier adverse credibility finding barred Singh’s motion to reopen. The BIA also erroneously concluded that Singh failed to show that the conditions for Sikhs in India changed qualitatively since his last hearing. Clear evidence shows the contrary. We thus grant the petition and remand.”

[Hats off to Garish Sarin!]

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https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca1-on-abuse-of-discretion-rivera-medrano-v-garland

CA1 on Abuse of Discretion: Rivera-Medrano v. Garland

Rivera-Medrano v. Garland

“Karen Elizabeth Rivera-Medrano, a citizen and native of El Salvador, has petitioned for review of an order of the Board of Immigration Appeals (“BIA”) affirming the denial of her request for withholding of removal under 8 U.S.C. § 1231(b)(3) and protection under the Convention Against Torture (“CAT”), 8 C.F.R. §§ 1208.16(c)–1208.18, and denying her motion to remand this case to the immigration judge (“IJ”) based on newly obtained evidence. We conclude that the BIA abused its discretion in denying her motion to remand. Accordingly, we grant the petition for review, vacate, and remand for further proceedings. … The BIA’s oversight is particularly significant here, where the credibility determination rested considerably on minor inconsistencies in what the IJ concluded was an otherwise credible presentation.”

[Hats off to SangYeob Kim, Gilles Bissonnette and Henry Klementowicz!]

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President Biden is correct that Trump and his MAGA GOP are the biggest threat to American democracy. But, “Dred Scottification,” systemic denial of due process, and racial injustice still running rampant in Immigration “Courts” under a Democratic Administration is right up there as an existential threat!

Additionally, I’ve been getting reports this week from practitioners in various locations that EOIR is embarking on yet another mindless, ill-informed round of “Aimless Docket Reshuffling” — guaranteed to increase backlogs, decrease effective representation, and spew out more unprofessional and unjust results. 

Once more, this inane initiative appears to have been undertaken with neither advance input from, nor sufficient notice to, those most affected — respondents and their attorneys! Same old, same old! This must stop!

Enough, already! Why aren’t all the “movers and shakers” of American law lined up in front of Garland’s Office demanding that he end the assault on our Constitution, common sense, good government, and human decency that unfolds every day in the disgracefully dysfunctional parody of a “court” system that is his sole responsibility!

The bar and NGO communities have to fight Garland’s assault on due process and good government with every available tool!

🇺🇸Due Process Forever!

PWS

00-02-22

☠️⚖️FAILNG JUSTICE:  IMMIGRATION JUDGES 👩🏽‍⚖️ NEED INDIVIDUAL LAW CLERKS, NOT MORE FALLS CHURCH BUREAUCRACY & FAILED GIMMICKS! — With “Garland’s Courts” Flunking 😰 “All Three Prongs Of Due Process,” Law Clerks Would Immediately Improve Quality & Save Lives!

Nicholas Bednar
Nicholas Bednar,JD
PhD Candidate
Vanderbilt University
PHOTO: SSRN Author Webpage

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4189963

The Public Administration of Justice

93 Pages Posted: 19 Aug 2022

Nicholas Bednar

Vanderbilt University, Department of Political Science

Date Written: August 14, 2022

Abstract

Adjudicatory agencies decide who receives social-welfare benefits, which inventions deserve patents, and which immigrants get to remain in the United States. Scholars have argued that agency adjudication lacks sufficient structural and procedural protections to ensure unbiased decision-making. Yet these critiques miss a key problem with agency adjudication: the lack of adjudicatory capacity. This Article argues that low-capacity agencies cannot satisfy the Due Process Clause’s demand for accurate decision-making. To produce accurate decisions, adjudicatory agencies need sufficient levels of capacity: (1) material resources, (2) expert adjudicators, and (3) support staff. When agencies lack these resources, their adjudicators rely on various coping mechanisms to manage their workloads. They shorten hearings, make assumptions about respondents’ claims based on appearance, or take other steps to reduce the cognitive burdens associated with a high workload. Yet these coping mechanisms introduce error into the decision-making process. Often, these errors are not random and, instead, bias against one party to the dispute.

This Article uses the Immigration Courts as a case study of this phenomenon. The Executive Office of Immigration Review (EOIR)—the agency charged with adjudicating the removal of noncitizens from the United States—suffers from severe understaffing and has amassed a backlog of over 1.7 million cases. Analyzing over 1.5 million removal proceedings and 32,000 personnel records, this Article uses causal and statistical methods to examine the effect that one element of adjudicatory capacity (i.e., law clerks) has on outcomes in the Immigration Courts. This analysis finds that providing an Immigration Judge with one law clerk decreases the likelihood of removal by 5.2 percentage points and increases the likelihood of an asylum grant by 4.4 percentage points. These effects are significant and exceed the effect sizes of other known contributors to bias, such as the IJ’s prior employment and appointing president.

Why do adjudicatory agencies, like EOIR, appear starved for resources? This Article argues that neither Congress nor the president have sufficient electoral incentives to invest in these agencies. As a result, adjudicatory agencies will continue to make systematic errors without intervention. However, the Due Process Clause demands accurate systems of agency adjudication. If Congress and the president will not uphold their duty to build capacity within these agencies, then courts must reform administrative-law doctrine to promote due process. By reimagining the law of agency adjudication from a public-administration perspective, courts can provide agencies with the flexibility they need to manage their workloads while protecting the due-process rights of the respondents who appear before agency adjudicators.

Keywords: Administrative Law, Immigration, Due Process, Bureaucratic Capacity

Suggested Citation:

Bednar, Nicholas, The Public Administration of Justice (August 14, 2022). Available at SSRN: https://ssrn.com/abstract=4189963 or http://dx.doi.org/10.2139/ssrn.4189963

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I agree with Bednar’s “bottom line:” With neither Congress nor the Executive motivated to bring EOIR into line with Constitutional Due Process, the task falls to the Article IIIs. Some judicial decisions have exposed the glaring, unacceptable constitutional and quality-control flaws in EOIR’s embarrassing and life-threatening dysfunction. Sadly, however, for the most part Article IIIs, starting with the Supremes, have failed to take the decisive action necessary to end the unjust nonsense at EOIR and require even minimal systemic reforms.

Notably, a PhD candidate with a JD knows exactly how to begin addressing the massive due process failure @ EOIR in a practical, easily achievable manner! But, nearing the midpoint of the Biden Administration, a distinguished former Federal Judge, once only a Mitch McConnell away from the Supremes, doesn’t “get it?” 

On the DC Circuit, Garland had four individual Judicial Law Clerks. https://www.chicagotribune.com/news/breaking/ct-chicagoans-clerked-for-merrick-garland-03-18-20160324-story.html.

And, with due respect, 1) he issued far fewer opinions annually than an average Immigration Judge (fewer than 50 compared with 700+); 2) few of his decisions involved the potential “life of death” or at least “life-determining” consequences of decisions in Immigration Court. See generally, https://www.scotusblog.com/2019/10/empirical-scotus-the-singular-relationship-between-the-d-c-circuit-and-the-supreme-court/

One individual, personally selected, law clerk for each Immigration Judge seems like a very “modest ask.” Why hasn’t Garland “picked this low hanging fruit?”

Perhaps he needs to listen to Nicholas Bednar rather than out of touch politicos and bureaucrats at DOJ and EOIR! As Bednar points out, EOIR is a prime model of disastrous, horrible, failed “public administration of justice.” The public and the individuals whose lives hang in the balance deserve much better!

🇺🇸 Due Process Forever!

PWS

08-31-22

DOJ’s IMITATION OF DHS “SERVICE CENTERS” IN VA MIGHT OFFER LITIGANTS A CHANCE AT BETTER LAW!  😎 — Hon. Jeffrey Chase Points Out How DOJ’s Efforts To “Dumb Down” 😩 Immigration Courts & Replace Judicial Decision-Making With “Rote Adjudication” Could Unintentionally Give Individuals A Better Due Process Option!

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

https://www.jeffreyschase.com/blog/2022/8/16/the-4th-circuit-on-jurisdiction

Blog Archive Press and Interviews Calendar Contact

The 4th Circuit on Jurisdiction

On June 30, the U.S. Court of Appeals for the Fourth Circuit issued a decision that might not have received the attention it deserved.  The end result of the court’s published decision in Herrera-Alcala v. Garland was to affirm an Immigration Judge’s denial of asylum based on a lack of credibility.1

But before reaching the merits, the court addressed a jurisdictional issue, and that is where our interest lies.  At his removal proceeding, the petitioner was detained at a Louisiana correctional facility, which placed him physically within the territory of the Fifth Circuit.  For some reason, the Administrative Control Court (which is where the administrative record for the case was created and maintained, and where documents were filed by the parties) having jurisdiction over that Louisiana correctional facility was in Fort Snelling, Minnesota, which is physically located within the Eighth Circuit’s jurisdiction.

However, the immigration judge who conducted the hearing remotely by video and rendered the decision was sitting at the Immigration Adjudication Center in Falls Church, Virginia, which is within the geographic jurisdiction of the Fourth Circuit.  So after the BIA dismissed the petitioner’s appeal, his counsel sought review with the Fourth Circuit.  The Department of Justice moved to change venue to the Fifth Circuit, arguing that the petitioner’s location was determinative. And an amicus brief filed by an immigrants’ rights group took the position that venue properly belonged in the Eighth Circuit, where the control court was located.

The Fourth Circuit resolved the question of jurisdiction using the language of the relevant statute.  Since 8 U.S.C. section 1252(b)(2) states that the “petition for review shall be filed with the court of appeals for the judicial circuit in which the immigration judge completed the proceedings,” the court interpreted that to mean it is the location of the judge that determines jurisdiction.  And as the judge in this case was in Virginia, it found proper jurisdiction to be with the Fourth Circuit.

The decision yields an immediate benefit, as there are presently nineteen Immigration Judges sitting in the two Immigration Adjudication Centers that are located within the Fourth Circuit’s jurisdiction (in Falls Church and Richmond, VA).  Based on the Fourth Circuit’s ruling, any of the thousands of noncitizens whose cases were heard by one of these Virginia-based judges now have the option of seeking judicial review in the Fourth Circuit.

The impact of this becomes apparent when we look at the BIA’s precedent decision in Matter of L-E-A-.2  In that case, the Board held that the respondent’s family constituted a valid particular social group for asylum purposes, but then denied asylum by finding that a nexus had not been established between that family membership and the feared persecution.  In fact, the decision created an unreasonably high standard for nexus in a commonly occurring type of asylum claim.   But the decision contains a footnote recognizing that the Fourth Circuit holds a significantly different view of nexus in such cases, adding that L-E-A- did “not arise in the Fourth Circuit.”3

Although the Board doesn’t go as far as saying so, applying Fourth Circuit case law to the facts of L-E-A-  would have resulted in a grant of asylum.  As I discussed in far greater depth in this blog post in December, the Fourth Circuit has repeatedly reversed the Board on nexus, citing the latter’s error of focusing on why the persecutor targeted the group in question, instead of asking why they targeted the asylum applicant themself.  For example, if the group in question is a family, it doesn’t matter if the persecutor is targeting that family for an unprotected reason such as money, revenge, or self-preservation.  Per the Fourth Circuit, if the asylum seeker themself wouldn’t be targeted if not for their membership in that family, then nexus has been established, regardless of the reason the family is at risk in the first place.4

In addition to its more favorable take on nexus, the Fourth Circuit is also among the handful of circuits to consider verbal death threats to constitute persecution.5  This is  important, because one who has been threatened in those circuits has thus established past persecution, causing burdens of proof regarding future fear and internal relocation to then shift to the government to rebut, and further opening the possibility for humanitarian grants of asylum even where the government meets its burden of rebuttal.6

The Fourth Circuit has also imposed on Immigration Judges a strong obligation under international law to fully develop the record in hearings involving asylum claims, particularly (but not exclusively) where the respondent is pro se, and considers an IJ’s failure to meet this obligation to be “presumptively prejudicial.”7   Any attorney who is representing on appeal an asylum applicant who appeared pro se below where the IJ had been sitting in Virginia might want to review the record to see if the duties imposed by the Fourth Circuit to develop the record, which includes a “broad and robust duty to help pro se asylum seekers articulate their particular social groups,” was satisfied.8

In spite of the above-listed benefits, advocates have identified a potential downside to the ruling in Herrera-Alcala should the Fourth Circuit’s view on jurisdiction be adopted nationwide.  To illustrate this concern, I’ll use a hypothetical example arising in a circuit such as the Fourth with a body of case law favorable to asylum applicants.  Let’s imagine that after briefing and documenting the claim in line with that circuit’s law, the presiding judge in Baltimore is out sick on the day of the merits hearing.  A deserving asylum seeker could have a likely grant of asylum upended if a judge stationed in a jurisdiction with far less favorable case law is enlisted to hear the case by video under EOIR’s “No Dark Courtrooms” policy.9  While the intent behind substituting in a remote judge might be an innocent one, the impact on the asylum seeker of unexpectedly having to overcome a much tougher standard for nexus or a narrower definition of persecution could be devastating, as the Matter of L-E-A- example illustrated.

The Fourth Circuit’s view is presently limited to the Fourth Circuit.  But should it come to be the universal rule, while whether a particular circuit will accept jurisdiction over a petition for review is beyond EOIR’s control, the agency may itself still choose which circuit’s case law its own Immigration Judges should apply in individual cases before the Immigration Courts.  EOIR would do well to look to the example of USCIS, which advises its asylum officers conducting credible fear interviews that where there is disagreement among the circuits as to the proper interpretation of a legal issue, “generally the interpretation most favorable to the applicant is used when determining whether the applicant meets the credible fear standard.”10

I mentioned above the Fourth Circuit’s recognition of the duty of Immigration Judges to ensure that the record is fully developed in asylum claims.  Scholars credit that obligation to the legal requirement on nations to implement treaties in good faith.  For example, in discussing the adjudicator’s duty to develop the record in asylum cases, two leading international refugee law scholars explain the duty to implement treaties in good faith as holding states “not simply to ensuring the benefits of the Convention are withhold from persons who are not refugees, but equally to doing whatever is within their ability to ensure recognition of genuine refugees.”11

But shouldn’t that same obligation apply to not only developing the evidence of record, but also to deciding which law to apply when, as in Herrera-Alcala, there is more than one option?  If there is an obligation on our government to do everything in its ability to ensure recognition of genuine refugees, then isn’t that obligation breached where an individual sitting in a geographic area in which the law deems her deserving of asylum is then denied protection because the judge being beamed into that courtroom is sitting in a place with less enlightened precedent?

Copyright Jeffrey S. Chase 2022.  All rights reserved.

Notes:

  1. Herrera-Alcala v. Garland, Nos. 20-1770, 20-2338, ___ F.4th ___ (4th Cir. June 30, 2022).
  2. Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017).
  3. Id at 46, n.3.
  4. Perez Vasquez v. Garland, 4 F.4th 213, 222 (4th Cir. 2021).
  5. See Sorto-Guzman v. Garland, No. 20-1762, ___ F.4th ___ (4th Cir. Aug. 3, 2022) (restating the court’s repeated holding that “the ‘threat of death’ qualifies as persecution.”); Bedoya v. Barr, 981 F.3d 240, 246 (4th Cir. 2020) (emphasizing that “under our precedent, as we have repeatedly explained, a threat of death qualifies as past persecution”).
  6. 8 C.F.R. §§1208.13(b)(1), 1208.13(b)(3)(ii), and 1208.13(b)(1)(B)(iii); see also Matter of D-I-M-, 24 I&N Dec. 448 (BIA 2008); Matter of L-S-, 25 I&N Dec. 705 (BIA 2012).
  7. Arevalo Quintero v. Garland, 998 F.3d 612, 642 (4th Cir. 2021) (italics in original).
  8. Id. at 633.
  9. March 29, 2019 Memo of EOIR Director, “No Dark Courtrooms,” OOD PM 19-11.
  10. USCIS Asylum Division Officer Training Course, Credible Fear of Persecution and Torture Determinations (Feb. 13, 2017), at 17.
  11. James C. Hathaway and Michelle Foster, The Law of Refugee Status (2d Ed.), Cambridge Univ. Press, 2014, at 119.

AUGUST 16, 2022

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Jeffrey S. Chase is an immigration lawyer in New York City.  Jeffrey is a formerImmigration Judge and Senior Legal Advisor at the Board of Immigration Appeals.He is the founder of the Round Table of Former Immigration Judges, which was awarded AILA’s 2019 Advocacy Award.Jeffrey is also a past recipient of AILA’s Pro Bono Award.He sits on the Board of Directors of the Association of Deportation Defense Attorneys, and Central American Legal Assistance.

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

At the “Legacy INS,” the acronym for what were then called “Remote Adjudication Centers” was “The RACK” — with good reason! Once upon a time, EOIR went out of the way to emphasize the differences with, and independence from, INS —  it ran “courts” not “adjudication centers,” and it was comprised of “judges” NOT “adjudicators.”

Indeed, I can remember a past (in person) IJ National Conference where a senior DOJ official received a rather chilly reception for referring to the IJs in the room as “highly paid immigration examiners who worked for the AG.”

But, times change, and passage of time does not always bring progress. In many important ways EOIR is going backwards. Over the years, particularly 2017-2021, it probably has become more “politicized, compromised, weaponized, and subservient to immigration enforcement” than it was when it operated within the “Legacy INS.” Now, its bloated hierarchical bureaucracy, unmanageable backlogs, lousy public service, and emphasis on “productivity” and carrying out DOJ policies, looks more and more like DHS — the successor to the agency from which it declared “independence” back in 1983. What an unforgivable mess!

Star Chamber Justice
The “RACK” “processes” another “adjudication.”

Here’s a recent post with my “take” on Herrera-Alcalahttps://immigrationcourtside.com/2022/07/02/⚖%EF%B8%8Fvenue-venue-whos-got-the-venue-the-4th-circuit-herrera-alcala-v-garland/

As a “vet” of thousands of Televideo Hearings during my 13+ years on the bench at Arlington, I can definitively say that they are inferior to in person hearings, for many reasons. But, sometimes bureaucratic attempts to “depersonalize” justice, cut corners, and achieve bureaucratic goals produce unanticipated outcomes!

🇺🇸 Due Process Forever!

PWS

08-28-22

🤯HASTE MAKES WASTE — DEFENDING IT’S WORSE: IJ’s Due Process Errors During 4-Min. Hearing 11 Years Ago Touch Off 4 Years Of Litigation Ending In Another Crushing Rebuke Of Garland’s DOJ By 4th Cir! — As Judge Wayne Iskra said, “This system is broken!”

U.S. v. Fernandez-Sanchez, 4th Cir., 08-25-22, published

https://www.ca4.uscourts.gov/opinions/204061.P.pdf

WYNN, Circuit Judge:

Bonifacio Fernandez Sanchez, a Mexican citizen who migrated to the United States

illegally as a minor in 2006, was deported in 2011 following a four-minute removal hearing. During that hearing, the immigration judge neglected to advise Fernandez Sanchez about his eligibility for voluntary departure or inform him of his right to appeal. Then, in his written summary order, the immigration judge indicated that Fernandez Sanchez had waived his right to appeal—even though this was never discussed during the hearing.

In the years since, Fernandez Sanchez has returned to the United States and been deported multiple times. Upon discovering him in the country once again in 2018, the Government opted to arrest and charge him with illegal reentry in violation of 8 U.S.C. § 1326(a). Fernandez Sanchez moved to dismiss his indictment, arguing that the 2011 deportation order underlying his § 1326 charge was invalid.

The district court agreed, finding that the immigration judge’s failure to advise Fernandez Sanchez regarding his eligibility for voluntary departure rendered his 2011 removal fundamentally unfair. However, while this appeal was pending, we effectively rejected the district court’s reasoning in United States v. Herrera-Pagoada, 14 F.4th 311 (4th Cir. 2021). Fernandez Sanchez nevertheless maintains that the district court’s decision must be affirmed on an alternative basis: that the immigration judge’s denial of his right to appeal also prejudiced him. We agree, and therefore affirm the dismissal of Fernandez Sanchez’s indictment.

. . . .

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

To me, it sounds like the 4th Circuit having “buyer’s remorse” about their questionable decision in United States v. Herrera-Pagoada, There, the court found that an IJ’s erroneous failure to advise a respondent of the availability of pre-hearing voluntary departure (“VD”)  was not a constitutional violation because there was no constitutional right to be advised of potential relief from deportation, even though a DOJ regulation required it! Huh?

But, here the court finds that the IJ’s improper failure to advise of the availability of prehearing VD combined with his failure to advise of appeal rights WAS a due process violation. Why? Because, if properly advised, the individual probably would have appealed, been successful, received a remand from the BIA, and then received VD from the IJ, thus avoiding deportation. Huh? 

The problem here is that as currently staffed and operated by the Executive, EOIR is one “walking, talking violation of due process.” If Congress won’t solve the problem by enacting a long overdue Article I Immigration Court, then the Article IIIs need to “take the bull by the horns!” 

They should place this entire, festering conflict of interest, and hotbed of substandard quasi-judicial performance OUT of the control of the nation’s Chief Prosecutor, the AG. Until Congress acts to establish a constitutionally compliant system, EOIR should be placed under the supervision of an independent, expert “Special Master” qualified to fairly administer one of the nation’s most important, yet totally dysfunctional and highly unfair, court systems!

Interestingly, much of the court’s reasoning is based on the premise that on appeal the BIA would have corrected the IJ’s clear errors. But, as those who follow Federal immigration litigation are aware, the BIA’s “assembly line” appellate review, sensitivity to due process, and willingness to apply precedent favoring the respondent are often as slipshod and driven by undue haste as this 4-minute IJ hearing. 

Ironically, the IJ who mishandled this case is generally regarded as one of the “best in the business” — experienced, knowledgeable, fair, and sensitive to the rights of individuals coming before him. So, while this screw-up might be an aberration for this particular IJ, it’s clearly not a systemic rarity. 

In the haste makes waste, hopelessly backlogged, “anything goes” “world of EOIR” goofs like this are likely happening every hour of every day that the Immigration Courts are in session. But, since many folks are unrepresented or underrepresented, some mistakes are simply buried or deported.

Indeed, I had my share of 4-minute (or less) “hearings” during 13 years on the bench. Inevitably, I made some mistakes — some were caught, some inevitably weren’t. Hopefully, I learned from the ones brought to my attention. With “Master Calendars” often consisting of upwards of 50 cases in a 3-hour “slot” in a courtroom overflowing with humanity — and the need to provide stressed out interpreters court clerks, counsel, and me with suitable “breaks” — you can do the math!

Once I did a 100 case Televideo Master in Ohio where 1) I had no files; 2) the ICE ACC who had been detailed to the hearing location had no files; and 3) the interpreter spoke a language other than the one of the majority of the respondents on the calendar. Afterwards, I told the then Chief IJ that I had spent the day in “Clown Court!’” 🤡 He was not amused.

To quote my friend and former colleague retired Judge Wayne Iskra: “This system is broken!”  “Numbers,” “final orders,” “expediency,” and “productivity” to satisfy bureaucratic enforcement goals or to support Government myths about immigrants drive the EOIR system. Due process, fundamental fairness, compliance with the statute and regulations, and meaningful analysis are not this dysfunctional system’s focus. But, they must be!

Clearly, “dedicated dockets,” regulatory time frames, form orders, remote “Adjudication Centers,” and other “designed to fail” gimmicks tried under Garland are NOT going to solve the chronic quality-control and due process problems plaguing EOIR!

In other words, EOIR as currently constituted and “operated” is a “due process sham!” The 4th Circuit and other Article IIIs need to “dig deeper” into the glaring constitutional and professional quality problems plaguing Garland’s broken Immigration Courts! If neither he nor Congress will solve the problems, somebody must!

🇺🇸 Due Process Forever!

PWS

08-26-22

😰IMMIGRATION 101: SUMMER GRADES POSTED: GARLAND, BIA, & OIL GET “F’s” FROM 1ST (FRENTESCU TEST) & 3RD (CATEGORICAL TEST) CIRS! — Meanwhile, NDPA Litigators Get “A+’s”

Dunce Cap
With lives on the line, the BIA’s performance leaves something to be desired.
PHOTO: Creative Commons

From Dor v. Garland, 1st Cir.

http://media.ca1.uscourts.gov/pdf.opinions/20-1694P-01A.pdf

Given our familiarity with the record at this point, we are prompted to note that it is not at all apparent to us how an application of the Frentescu factors to Dor’s case would lead to a particularly-serious-crime determination. For instance, consider again the June 1 incident — the BIA relied on a police officer’s assessment that Dor had a “large amount” of marijuana on him, but this on-the-scene appraisal by an officer is largely irrelevant to an immigration-law-driven determination that a crime is particularly serious pursuant to the guiding statutes, especially when the actual amount (25 grams, a small amount) is available. See Matter of Castro Rodriguez, 25 I. & N. at 703; Moncrieffe, 569 U.S. at 194 n.7. Consider, too, that while the BIA identified the type of sentence imposed as a Frentescu factor but never mentioned (or weighed) Dor’s sentences, we observe that

– 23 –

Dor received lenient sentences with respect to both offenses (a two-year probation and a one-year suspended sentence that never went into effect since Dor completed a violation-free probation period).

As to Dor’s involvement in trafficking as part of the calculus here, based on the amount in question, and again on the face of this record, this characterization seems ambitious. The May 20 offense officers observed Dor sell “20 bucks[‘ worth]” of marijuana to another individual; the June 1 incident revealed Dor had in his possession a digital scale, a large amount of U.S. currency, and 25 grams of marijuana.

Bottom line: The BIA’s particularly-serious-crime conclusion is devoid of any actual application of the Frentescu factors, and even if we considered it a solid application of the law to Dor’s case, we still do not have a sufficiently rational explanation of the BIA’s particularly-serious-crime conclusion as to Dor’s minor marijuana offenses, and a rational explanation is necessary to ensure Dor was appropriately precluded from obtaining the humanitarian relief he seeks.

DEAN’S LIST: A+‘s go to :

Edward Crane, with whom Philip L. Torrey, Crimmigration Clinic, Harvard Law School, Shaiba Rather, Lena Melillo, and Katie Quigley, Law Student Advocates, Crimmigration Clinic, Harvard Law School, were on brief, for petitioner.

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

From Vurimindi v. AG, 3rd Cir.

https://www2.ca3.uscourts.gov/opinarch/191848p.pdf

In sum, the Government has identified no evidence that supports divisibility. The statute, the case law, and the available state court documents all support the opposite conclusion.11 Because Pennsylvania’s stalking statute is indivisible as to intent, we apply the categorical approach. And under the categorical approach, Section 2709.1(a)(1), which sweeps more broadly than its generic counterpart in the INA, is not a categorical match. Vurimindi’s offense of conviction therefore does not qualify as a removable offense.

DEAN’S LIST: A+‘s go to DLA Piper’s:

Courtney Gilligan Saleski

https://www.dlapiper.com/en/us/people/s/saleski-courtney-gilligan/

Courtney Gilligan Saleski
Courtney Gilligan Saleski
Partner
DLA Piper

and

Rachel A.H. Horton

https://www.dlapiper.com/en/us/people/h/horton-rachel/

Rachel A.H. Horton
Rachel A.H. Horton
Associate
DLA Piper

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

Interestingly, the BIA’s defective decision in Dor involved improper reliance on police reports. This comes just as a new NIJC report shows how improper reliance by EOIR on police reports means that “racism and inequities in the criminal legal system and policing carry over into the immigration system.” https://default.salsalabs.org/T59538212-844f-4d6d-ade1-0428b5eef400/e9c83407-de3b-4bcf-a318-704cbcd599a2. 

The Dor case also presents a familiarly outrageous characteristic of American immigration policy — still going strong in the era of Biden, Harris, and Garland — “Dred Scottification” — that is systemic injustice — directed at Black Haitian refugees. Indeed, Dor is lucky to be in the “system” at all — no matter how biased and poorly functioning. Following in the footsteps of the overtly racist and xenophobic Trump Administration, under Biden more than 25,000 potential Haitian refugees have been arbitrarily returned under Title 42 with no process at all — not even the “veneer of due process” provided by EOIR! See https://www.wola.org/2022/05/weekly-u-s-mexico-border-update-title-42-ruling-family-self-separations-more-drownings-haiti-expulsion-flights/.

The cases described above have been pending for three and six years, respectively. EOIR presents the worst of both worlds: lengthy delays and backlogs without due process and careful expert consideration of the issues involved. Injustice at a high cost, in more ways than one!

After trips to three levels of our broken immigration justice system, countless hours of legal time, and untold trauma and uncertainty for the individuals subjected to this dysfunctional system, these cases remain far from final resolutions. Now they go back into Garland’s incredible nearly two million case backlog!

Sometimes, the BIA uses this as an opportunity to invent a new “bogus theory of denial.” Other times, the files get lost or reassigned. In other words, they are subject to EOIR’s “specialty:” “Aimless Docket Reshuffling!”

Garland doesn’t lose any sleep over it because: 1) not his life on hold, 2) not his time and money being wasted, and 3) he isn’t paying attention! This is unacceptable public service! Plain and simple! And, there appear to be few, if any, real consequences for anybody except the individuals whose lives and futures are at stake and their (often pro bono) lawyers!

How completely “out of touch” is Garland? He has put bogus, “Mickey Mouse” time limits on new asylum adjudications. Doing incompetent and biased adjudications faster isn’t going to solve the problem. It will actually make backlogs worse and more importantly, increase the number of defective asylum denials — already at beyond unacceptable levels.

You can’t fix a broken system by making it “pedal faster!” Why, after all  these years, Garland doesn’t understand that “fundamental rule of Goverment bureaucracy” is totally beyond me!

The obvious solution: Put emphasis on getting these cases right at the first instance. That means “canning” the “anti-immigrant default and assembly line process” and getting expert IJs willing to rule in favor of individuals where appropriate and a revamped BIA of expert judges willing to issue precedents favorable to individuals and insure that IJs properly follow them. It also means a BIA who will follow precedent even where it doesn’t produce a “DHS Enforcement-friendly result.”  

Additionally, “lose” OIL’s often-dilatory or quasi-frivolous arguments designed to cover up EOIR failures and block justice! (HINT: The Assistant AG, Civil, one of the key sub-cabinet positions at DOJ, and OIL’s “boss,” remains unfilled approaching the halfway point of the Biden Administration.) This system is broken from top to bottom, including the litigation “strategy” that attempts to shield unfair and legally incorrect EOIR decisions from critical substantive review by Article III judges independent from the Executive. 

Yes, Garland recently has “pruned” some of the deadwood at EOIR and brought in a few widely-respected expert “real judges.” That’s some progress.

But, he’s barely scratched the surface of the anti-immigrant culture, “haste makes waste” atmosphere, and shoddy decision making at EOIR and the poorly conceived litigation strategies at OIL! In particular, the dysfunctional DOJ immigration bureaucracy glaringly lacks inspired progressive due-process-committed, human-rights-focused, racial-justice-sensitive leadership willing to stand up for individual rights against Government overreach and abuses!

Of course, the “real” solution is to get the Immigration Courts out of DOJ and into an independent Article I structure. But, unfortunately, that isn’t going to happen tomorrow.

In the meantime, there is plenty that Garland could be doing to improve due process and professionalism and to “pave the way” for the eventual transition to Article I. The more dysfunctional Garland makes his system the more difficult and rocky that transition will be.

Garland isn’t getting the job done! Everyone who cares about the future of our nation and the rule of law should be asking why and demanding better from Garland and his “asleep at the switch” lieutenants!

High-powered lawyers like Courtney Saleski, National Co-Chair of DLA’s White Collar Practice, who successfully litigated Vurimindi in the 3rd Circuit have some “juice.”  They need to team up with the ABA, FBA, AILA, ACLU, Human Rights First, NIJC, the NAACP, Catholic Conference, HIAS, and other human rights and civil rights groups and “camp on Garland’s doorstep” until he “pulls the plug” on his dysfunctional, unprofessional EOIR and brings in due-process-focused competence! How many resources and human lives can our nation afford to waste on Garland’s EOIR disgrace?

Alfred E. Neumann

Individuals whose lives are subject to systemic injustice and their hard-working, often pro bono, attorneys might “dissent” from Garland’s dilatory approach to long overdue due process reforms and key personnel changes in his stunningly  dysfunctional Immigration Courts!
PHOTO: Wikipedia Commons

🇺🇸 Due Process Forever!

PWS

08-24-22

🇺🇸⚖️🗽AN AMERICAN LEGAL HERO LEAVES BEHIND LEGACY OF COURAGE, SCHOLARSHIP, INNOVATION, COMPASSION: A HEARTFELT TRIBUTE TO HON. WILLIAM VAN WYKE BY HON. “SIR JEFFREY” CHASE!

Judge William Van Wyke
Judge William Van Wyke (D – Aug. 14, 2022)
U.S. Immigration Judge (Ret.)
Member Round Table of Former Immigration Judges
“A True Due Process Visionary”
PHOTO: the world.com

 

 

https://www.jeffreyschase.com/blog/2022/8/22/william-van-wyke-2

William Van Wyke

On August 14, the immigration law community lost a true giant. William Van Wyke, a former Immigration Judge, advocate, and scholar unexpectedly passed away.

How does one capture William’s essence? I’m going to attempt to do so through his own words (in bold), taken from both public sources and emails he wrote to his former Immigration Judge colleagues in conversations after his retirement from the bench.

“The fearful and crude ideas get put into practice by reflex; compassionate and thoughtful ones wait around until everyone agrees with them. – William” – April 1, 2021 email.

My first real impression of William came from reading his 1992 article “A New Perspective on ‘Well-Founded Fear,” which appeared in AILA’s conference handbook that year.1 In very simple, easy to understand language, WIlliam turned the existing method of asylum adjudication on its head, using an easy to apply concept that correctly brought the process in line with international law. It was absolutely brilliant. Thirty years later, we are still waiting around for the government agencies overseeing asylum adjudication to agree with it.

Prior to authoring that article, WIlliam had spent nine years pioneering the representation of Central American refugees before the Immigration Courts in Washington and Baltimore, beginning this work when the 1980 Refugee Act was still new.

“’We have a law that was intended to be generous, that, when it is well understood, would cover many cases — many, many more cases — than those that are granted,’ Van Wyke says.” –  Quote in Eyder Peralta, “Why A Single Question Decides The Fates Of Central American Migrants,” NPR, Feb. 25, 2016.

In one 1990 case in which his clients were denied asylum, William succeeded in persuading the Immigration Judge to rule that those clients could not be deported to their native El Salvador as long as the civil war continued there. William achieved this result by arguing customary international law, and analogizing a refugee’s flight from war to the customary practice of allowing a ship in distress the right to enter a port without authorization. The Washington Post quoted an immigration law authority who called the decision “one of the most impressive victories ever in an immigration court.” The decision was the subject of a law review article the following year.3

“My own experience is that people with anti-immigrant sentiments, whether in INS, DHS, EOIR or anywhere else, have always cringed at the idea of an IJ giving an unrepresented person sufficient information to make genuinely informed decisions… I remember a talk by Janet Reno at one of our conferences 20 years ago when she mentioned ‘compassion’ 12 times — I counted them. But try to actually be compassionate in specific cases in a legally appropriate and consequential way and you’re accused of overstepping judicial bounds. Didn’t I know that compassion is supposed to be a decoration, not something that actually helps the people before us?”  – Email, Sept. 18, 2019

William’s appointment as an Immigration Judge in March, 1995 sent a message of hope to the immigration law community. On the bench, William maintained his methodical, detail-oriented approach.  Early in his career on the bench, William reported that the INS trial attorneys had given him the nickname “the Van Wyck Expressway,” a reference to the similarly named NYC roadway that most know from traveling to or from JFK Airport. When William pointed out to one of those INS attorneys that his courtroom actually moved quite slowly, the attorney responded: “So does the Van Wyck Expressway.”

While we were both on the bench, I heard that William had developed a highly unique seating plan for his courtroom, and asked him about it one day. He showed it to me, explaining in detail his deeply thought out reasoning for the placement of every chair in the room. I don’t remember the specifics so many years later, but it was a perfect example of the strong sense of responsibility WIlliam felt towards all who set foot in his courtroom.

That sense of responsibility became even more heightened when WIlliam transferred from the court in New York to what he used to call “plain old York,” meaning the detained immigration court in York, Pennsylvania, located inside of the York County Prison.4

In one case he heard there, a non-citizen sat in jail awaiting approval of a green card petition filed by his U.S. citizen wife that could have saved him from deportation. But approval of visa petitions is not something an immigration judge can do; that power lies with the same government agency that was seeking the non-citizen’s deportation (at the time, that was INS; it is now DHS). After continuing the case multiple times to allow for a decision on the visa petition, WIlliam was repeatedly informed by INS’s attorney that no action had been taken.  The INS attorney further refused to inquire as to when a decision might be expected, and insisted that rather than wait, the non-citizen should be ordered deported.

Although at the time such action required the consent of both parties, WIlliam took the bold step of administratively closing the case over the government’s objection, writing a detailed decision explaining the necessity of doing so under the facts presented.

Remarkably, rather than appeal William’s denial to the Board of Immigration Appeals, the INS attorney privately and most improperly contacted the Chief Immigration Judge by phone, who in turn improperly reopened the matter and placed it back on for hearing.

In a decision that should be required reading for all EOIR management, WIlliam fired back at both INS and his own higher-ups, stating that it would be a “manifest injustice” to deport the respondent “simply because INS has not performed its Congressionally-mandated adjudication in a timely fashion.”

Detailing the extensive efforts he had undertaken to get INS to adjudicate the visa petition, WIlliam further noted that “[t]he asymmetry of ordering one party, but asking, begging, pleading and cajoling the other party hearing after hearing without effect, can only diminish the court as an authoritative and independent arbiter in the public’s eyes.”

WIlliam took the INS and the Office of the Chief Immigration Judge to task for their unethical ex parte communication, and the latter’s unauthorized action in response to such conversation:

The Chief Immigration Judge is an administrative and policy officer without appellate or other legal authority to overrule the immigration judge’s procedural decisions in the case, see 8 CFR 3.9, 3.1(b), and ethical rules require the Chief Immigration Judge as well as immigration judges to refrain from taking action in a specific case following an ex parte communication about the case by one of the parties.

William further noted that his “decision to close the case temporarily was not a mere administrative one subject to OCIJ’s general direction, but a legal decision made as an integral part of the adjudicatory process in an individual case.” William cautioned that the private communication, which denied opposing counsel the right to be heard, protected INS from having to defend its position in an appeal to the BIA, thus giving

a procedural and tactical advantage to the INS by demonstrating to respondent, rightly or wrongly, that an INS call to the Office of the Chief Immigration Judge may be enough to undo what the immigration judge does in open court, while encouraging the INS to continue to seek results from the OCIJ privately that it might not be able to get from the BIA publicly.

William concluded:

Unable to establish or enforce the standards of conduct that this judge believes must apply, he will recuse himself from further consideration of the case. In the court’s view, only the OCIJ, which went beyond mere administrative action to direct a particular course of action in this case, is in a position to cure the appearance of impropriety its intervention has produced. The court will therefore refer this case back to the Chief Immigration Judge for whatever action he may deem fit and appropriate.

The extraordinary nature of the matter was reported in an article in the New York Times.5

In retirement, William was a member of our Round Table that filed an amicus brief in an important case in the U.S. Court of Appeals for the Second Circuit, Velasco-Lopez v. Decker.  The case challenged the practice of requiring a detained non-citizen to themself prove that they would not pose a flight risk or danger to the community in order to warrant their release from detention. In its precedent decision, the circuit court agreed that such burden should be borne by the government, and not the detainee.

I share here part of William’s response to the decision

In this decision, the important starting point is that due process applies to every person in their relation to the power of government. This principle humanizes immigrant “others” and shows that when Big Government (i.e. the kind that wields power in favor of the already rich and already powerful) treads on anyone, everyone’s rights are in jeopardy. The principles relevant in bond decisions –– having ties to our communities and not being a danger to others –– are strong values that most of us honor and share, whether recent immigrants or earlier-generation immigrants, and should make all of us resist limitations on our freedom by the coercive power of jailing people.

I don’t know if they still staple those little yellow cards with red print onto files of jailed immigrants that used to say, “RUSH: detained at government expense.”  Years ago when I was at York I wrote to… EOIR General Counsel, to ask if we couldn’t change those cards to be more humane, to say, “RUSH: person deprived of liberty,” or at least more neutral: “person deprived of liberty at government expense.” A change, of course, was “unnecessary” because everyone already knew the immigrants’ hardship, even if our boss’s reminder focused only on the government’s. Maybe they’ll change the cards now to remind adjudicators: “Rush: this person should not be deprived of freedom unless the government quickly decides he/she lacks any community ties AND is dangerous.” I won’t hold my breath, though.

I will conclude by saying that just recently, I set about researching a narrow legal issue that I would imagine most Immigration Judges would resolve in a few pages at most. I came across a decision that William had written on the topic shortly before his retirement from the bench that was exactly what I was looking for. It was 39 pages single spaced, and of course, absolutely brilliant.

On behalf of your fellow judges, and of all who have appeared in Immigration Court, thank you, William, for being you, for never lowering your standards. You restored the hope of so many in the power of law to make a positive difference in people’s lives, and so often showed that there was a way forward when we thought there was none. You are already greatly missed.

Notes:

  1. William Van Wyke, “A New Perspective on Well-Founded Fear,” 1992-93 Immigration & Nationality Handbook(AILA, 1992) at 497.
  2. Carlos Sanchez, “Lawyer’s Persistence Helps Reshape Immigration Law,” Washington Post, March 31, 1991.
  3. Cookson, II, Charles W. “In Re Santos: Extending the Right of Non-Return to Refugees of Civil Wars.” American University International Law Review 7, no. 1 (1991): 145-171.
  4. The York Immigration Court was closed on July 31, 2021.
  5. Eric Schmitt, “Two Judges Do Battle in an Immigration Case,” NYT, June 21, 2001.
  6. 978 F.3d 842 (2d Cir. 2020). The author recognized the outstanding representation in this matter by the petitioner’s counsel, Julie Dona (who argued the case) and Aadhithi Padmanabhan of the Legal Aid Society, and to Souvik Saha of Wilmer Hale for his remarkable assistance in drafting our amicus brief.

AUGUST 22, 2022

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Jeffrey S. Chase is an immigration lawyer in New York City.  Jeffrey is a former Immigration Judge and Senior Legal Advisor at the Board of Immigration Appeals.He is the founder of the Round Table of Former Immigration Judges, which was awarded AILA’s 2019 Advocacy Award.Jeffrey is also a past recipient of AILA’s Pro Bono Award.He sits on the Board of Directors of the Association of Deportation Defense Attorneys, and Central American Legal Assistance.

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My first real impression of William came from reading his 1992 article “A New Perspective on ‘Well-Founded Fear,” which appeared in AILA’s conference handbook that year.1 In very simple, easy to understand language, WIlliam turned the existing method of asylum adjudication on its head, using an easy to apply concept that correctly brought the process in line with international law. It was absolutely brilliant. Thirty years later, we are still waiting around for the government agencies overseeing asylum adjudication to agree with it.

. . . .

William spent those years trying to persuade the government of the proper application of the new law.  However, INS and the newly created EOIR remained largely mired in the Cold War-influenced view of asylum that preceded the 1980 changes. And under that Cold War approach, Central Americans fleeing pro-U.S. regimes had nearly no chance to obtain asylum

A 1991 Washington Post article documented how this institutional resistance only caused William to be more persistent and creative in his legal approach.2

Kind of says it all about the entrenched, continuing, institutional resistance at EOIR to correct, generous, fair, practical interpretations of asylum law and other immigration and human rights laws! That’s what helps generate uncontrollable backlogs and brings our entire justice system into disrepute! Worst of all, it threatens the lives of those denied justice by its legal misinterpretations and mis-applications of the law!

What does it say about an institution that no longer touts or actively pursues its noble one-time-vision of “through teamwork and innovation, be the world’s best administrative tribunals, guaranteeing fairness and due process for all?” Ironically, William’s life and achievements embody that now-defunct “EOIR vision.” But, nobody in “management” actually acknowledged that during his often-difficult tenure there.

Encouragingly, a number of Garland’s recent judicial appointments are distinguished, expert, widely respected “practical scholars” in the “Van Wyke mold.” Unfortunately, it’s going to take immediate and dramatic changes in moribund, uninspired EOIR leadership and in the “any reason to deny” BIA to overcome the “Cold War mentality,” anti-immigrant bias, assembly line procedures, “institutionalized go along to get alongism,” and unacceptably poor performance of EOIR. Right now, it’s still drag on our entire justice system that puts the future of our nation at risk!

No wonder we already miss William, his outspoken courage, and his wisdom so much. There is a void in our justice system right now where fierce due-process-focused, creative, humane, practical scholars should be leading the way in our institutions of justice! 

It’s up to the “new generation” of the NDPA to break down the walls of official resistance by Garland and other short-sighted bureaucrats and politicos who lack the vision to make racial justice, immigrant justice, and equal justice for all realities rather than disingenuous unfulfilled rhetoric! Guys, your lives and those of your descendants might depend on it! So, dial up the pressure on the intransigents, many of them in the Biden Administration you helped to elect and who expect your support and votes again this Fall!

🇺🇸 Due Process Forever!

PWS

08-24-22

💨 FROM THE ROCKIES & THE HIGH PLAINS, THE WINDS OF TRUTH BLOW AWAY THE BS & SHOW HOW GARLAND’S BIA & THEIR SCOFFLAW INTERPRETATIONS HAVE BUILT BACKLOGS — “This petition for review represents the latest chapter in the Government’s ongoing efforts to dig itself out of a hole it placed itself in,” says 10th Cir. in Estrada-Corona v. Garland!

Kangaroos
It’s easy guys, we just do what DHS Enforcement and our political bosses want and we can keep hopping around forever! Backlogs! Ha, the bigger the bigger they get, the more “secure” our jobs!
https://www.flickr.com/photos/rasputin243/
Creative Commons License

Dan Kowalski reports for LexisNexis Immigration Community:

CA10 Stop-Time Victory: Estrada-Cardona v. Garland

Estrada-Cardona v. Garland

“The Attorney General may allow otherwise-removable aliens to remain in the country if, among other things, they have accrued 10 years of continuous physical presence in the United States. We call this form of discretionary relief “cancellation of removal.” Under the statutory “stop-time rule,” the period of continuous physical presence ends (A) when the alien is served with a notice to appear, or (B) when the alien has committed certain criminal offenses. 8 U.S.C. § 1229b(d)(1). Nothing more, nothing less. In the latest installment of “What Triggers the Stop-Time Rule?” the Government asks us to hold that the issuance of a final order of removal is a third, extra-statutory event sufficient to stop the clock. The plain language of the statute supports no such conclusion. Declining to read ambiguity into a statute where none exists, we hold a final order of removal does not stop the accrual of continuous physical presence. … This petition for review represents the latest chapter in the Government’s ongoing efforts to dig itself out of a hole it placed itself in. … After years of statutory short-circuiting, the Government finds itself in the uncomfortable position of being wrong. … Because Congress unambiguously replaced the final-order rule with the stop-time rule, the BIA’s application of the final-order rule was legal error. Petitioner continued to accrue continuous physical presence after the immigration judge issued the order to voluntarily depart. … [W]e hold that because the BIA seems to have considered change-in-the-law equitable tolling arguments before, the BIA abused its discretion in this case by failing to “announce its decision in terms sufficient to enable a reviewing court to perceive that it has heard and thought and not merely reacted.” … We cannot discern why the BIA found no extraordinary circumstance which would warrant equitable tolling, so the BIA abused its discretion. …  On remand, the Government is free to argue that Petitioner should not be granted sua sponte reopening or equitable tolling. This opinion is expressly limited to two conclusions. First, the BIA’s application of the final-order rule was legal error. Second, the BIA’s explanations for denying sua sponte reopening and equitable tolling constituted, as a procedural matter, an abuse of discretion. For the reasons stated herein, we GRANT the petition for review and REMAND to the BIA for further proceedings not inconsistent with this opinion.”

[Hats way off to Jennifer M. Smith and Mark Barr!]

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

“For years, if not decades, the Government sent aliens “notices to appear” which failed to include all the information required by § 1229(a)—like the “time and place at which the proceedings will be held.” 8 U.S.C. § 1229(a)(1)(G)(i). For countless aliens, the only obstacle to being eligible for cancellation of removal was the Government’s position that a time-and-place-to-be-set notice to appear still triggers the stop-time rule. In Pereira, the Supreme Court rejected the Government’s atextual interpretation and held a “putative notice to appear that fails to designate the specific time or place of the [alien]’s removal proceedings is not a ‘notice to appear under section 1229(a),’ and so does not trigger the stop-time rule.” 138 S. Ct. at 2113–14. In one fell swoop, the Supreme Court cleared the way for many aliens, like Petitioner, to seek cancellation of removal.

But the Government quickly erected a new hurdle.”

The BIA could and should have prevented this debacle by insisting from the git go that the statute (“the law”) be followed by DHS and EOIR. Instead, at the behest of DHS, and perhaps to prevent tens of thousands of long-term residents who had received statutorily defective notices from seeking relief, the BIA misinterpreted the statute time after time. 

The real stupidity here is that the requirement the BIA was pretzeling itself to avoid was hardly “rocket science” or burdensome: Serve a notice containing the actual date, time, and place of the hearing! One might ask what purpose is served by a so-called “Notice to Appear” that doesn’t notify the individual of where and when to appear?

Moreover, when the BIA started issuing their incorrect precedents, DHS and EOIR had a then-existing system — called “interactive scheduling” — that would have complied with the statute. The problem was that the “powers that be” at DOJ, EOIR, and DHS consciously decided NOT to use that system. 

The apparent reason was the belief that complying with the law might have interfered with DHS arbitrarily filling the Immigration Courts with large “numbers” of cases to meet various enforcement “priorities” set from “on high.” Rather than doing its job, the BIA chose time and again to “go along to get along” with this nonsense!

Over and over, EOIR lets bogus DHS or Administration “enforcement priorities” or “improperly using the legal system as a deterrent” subvert due process, fundamental fairness, best interpretations, and practical solutions!

And, although Biden and Harris campaigned on a platform of bringing the rule of law and rationality back to immigration, the absurdity and illegality continues under Garland. He even sent OIL in to waste the time of the Article IIIs by mounting essentially frivolous defenses to the BIA’s malfeasance. 

Perhaps worst of all, in addition to being denied timely justice, individuals and their lawyers dealing with Garland’s dysfunctional EOIR often are falsely blamed for causing the backlogs that are the primary result of DHS/EOIR incompetence and political meddling by unqualified bureaucrats. The latter don’t understand what really happens in Immigration Court and how to properly, fairly, and efficiently administer such a large and important court system.

The backlogs will continue to grow and the US justice system will crater because of bad immigration decisions generating skyrocketing litigation. Garland must replace the BIA with real expert appellate judges committed to fair, humane, and reasonable interpretations of immigration and human rights laws — without regard to whether those correct interpretations will be “career enhancing” or “career preserving.” In other words, judges who put justice before personal or institutional “survival.” Competent, expert, independent-minded judicial administrators with the guts to keep DOJ and DHS bureaucratic meddlers “at arm’s length” are also required.

Folks who could do the job are out here. But, that’s the problem! They belong in the key judicial judicial and administrative positions at EOIR where they can put any end to the due-process denying, backlog building dysfunction.

EOIR Clown Show Must Go T-Shirt
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept

Everyone committed to the future of American justice should be asking themselves why Garland hasn’t recruited and hired the right “Team Due Process” for EOIR! American justice can’t afford more of Garland’s inept, “go along to get along,” “afraid to say no to DHS enforcement” BIA and the rest of the EOIR “Deadly Clown Show” largely left over from past, failed Administrations!

🇺🇸 Due Process Forever!

PWS

08-20-21

⚖️ NDPA STALWART MICHAEL MEHR BEATS DOWN MATTER OF CORDERO-GARCIA (Obstruction of Justice) IN 9TH — Dissenting Trump Judge VanDyke Goes Ballistic — Accuses Colleagues Of “Playing Dirty” By Occasionally Ruling In Favor Of Individuals In Immigration Cases!

 

Here’s a report from Nate Raymond @ Reuters:

https://www.reuters.com/legal/government/trump-appointed-judge-says-9th-circuit-playing-dirty-prevent-deportations-2022-08-15/

(Reuters) – A conservative judge appointed by former President Donald Trump on Monday accused his colleagues on the 9th U.S. Circuit Court of Appeals of playing “dirty” in a “trainwreck” of rulings to prevent immigrants from being deported.

U.S. Circuit Judge Lawrence VanDyke’s criticism came in a dissent to a 2-1 decision holding a Mexican native’s California conviction for dissuading a witness from reporting a crime was not a deportable offense under federal immigration law.

VanDyke, who has become known for a string of dissents since joining the liberal-leaning court in 2020, noted he had not been shy in criticizing the San Francisco-based court’s “abysmal and indefensible immigration precedents.”

He said the 9th Circuit for more than a decade has been “doing everything in our power (and much not) to upset” the Board of Immigration Appeals’ “reasonable” interpretation of what constitutes an offense related to obstruction of justice.

The BIA in this case had concluded Fernando Cordero-Garcia committed such an offense after he was convicted in California of sexual battery without restraint, sexual exploitation by a psychotherapist and dissuading a witness from reporting a crime.

“My colleagues in the majority should be embarrassed,” VanDyke wrote. “Perhaps not for their wrong decision today–to err is human, after all, even for those in robes. But they should be troubled by our court’s jaw-dropping, always-increasing, epic collection of immigration gaffes.”Cordero-Garcia’s lawyer, Michael Mehr, declined to comment.

Cordero-Garcia, who entered the country in 1965 as a lawful permanent resident, was a psychologist for the County of Santa Barbara Alcohol, Drug and Mental Health Services department who prosecutors said sexually assaulted patients, the ruling said.

Two appointees of Democratic presidents — U.S. District Judge Barry Moskowitz, a visiting judge on the court, and U.S. Circuit Judge Andrew Hurwitz — ruled for Cordero-Garcia in overturning the BIA’s decision on the obstruction offense.

Moskowitz, writing for the majority, said he was not writing on a “clean slate,” as the 9th Circuit in 2020 ruled an “obstruction of justice” offense must be connected to ongoing or pending criminal proceedings.

The California law Cordero-Garcia was convicted under, by contrast, does not require any connection to an ongoing or pending proceeding or investigation, making it “not an appropriate comparator” to obstruction under federal law.

VanDyke, though, said the 9th Circuit’s approach had created a “lopsided circuit-split,” with the majority acknowledging its ruling ran counter to decisions by the 1st and 4th U.S. Circuit Courts of Appeals.

The case is Cordero-Garcia v. Garland, 9th U.S. Circuit Court of Appeals, No. 19-72779.

For Cordero-Garcia: Michael Mehr of Mehr & Soto

For the United States: Rebecca Hoffberg Phillips of the U.S. Department of Justice

Read more:

Trump-appointed judge blasts 9th Circuit’s ’embarrassing’ immigration rulings

In barbed dissents, Trump appointees call

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Here’s a link to Matter of Garcia-Cordero, 27 I&N Dec. 652 (BIA 2019) which was reversed by the 9th Circuit:

https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahUKEwip-puUns75AhUlk4kEHaQXAisQFnoECAMQAw&url=https%3A%2F%2Fwww.justice.gov%2Feoir%2Fpage%2Ffile%2F1210991%2Fdownload&usg=AOvVaw2IVnTOUmhzqK0ppatf4rr7

While VanDyke has been eager to rip into his colleagues for critically reviewing BIA rulings, rather than just “rubber stamp deferring,” he is no stranger to controversy. He received the coveted “not qualified to serve” rating from the ABA and has been characterized as an “unqualified hack” by Joe Patrice over at abovethelaw.com.  https://abovethelaw.com/2021/12/ninth-circuit-judge-has-had-it-with-trump-judges-insulting-dissents/.

Interestingly, a chunk of the dissent is dedicated to showing that Mr. Cordero-Garcia is a louse. However, that doesn’t seem to have much to do with the legal application of the “categorical test” to his crime in the immigration context. For all its difficulties, Congress was well aware that courts had historically applied the “categorical test” as opposed to the “sounds like a bad guy” approach when they enacted the statutory language in question.

Curiously, VanDyke castigates his majority colleagues for “result oriented” decision making. But it seems highly unlikely that either District Judge Barry Ted Moskowitz, who wrote the opinion, or Circuit Judge Andrew Hurwitz would have chosen Mr. Cordero-Garcia’s situation as one to “throw out a lifeline.”

What’s more likely is that they fairly applied controlling Circuit precedent notwithstanding the highly unsympathetic individual involved. By contrast, critics have characterized VanDyke as an ideologue — driven by a far-right agenda — whose main focus on the bench has been “writing vitriolic Town Hall editorials to publish in F.4th.” Id.

From a due process standpoint, one of the most severe problems undermining our entire justice system today is the disturbingly poor performance of the BIA which often functions as a “rubber stamp” on incorrect anti-immigrant decisions by Immigration Judges, many of them appointed during the Trump Administration with questionable credentials, at best. That’s when the BIA isn’t busy serving as a “shill” for DHS Enforcement — often bending the law or going out of their way to sustain ICE appeals from correct decisions below that grant relief or benefit individuals. BIA precedents favorable to asylum seekers and other migrants are few and far between — despite an obvious lack of immigration and human rights expertise among many Trump appointees to the immigration bench.

The problem is compounded when reviewing Circuit Courts ignore the glaring Constitutional conflict of having a “court” that is “owned” by an enforcement agency (and was blatantly “weaponized” against migrants by Sessions and Barr) and the poor quality decision making, lack of scholarship, and overt bias that plagues EOIR. “Rubber stamp deference” to BIA decisions that do not deserve it is a systemic problem for the Article IIIs, actively encouraged by the Supremes judge-created Chevron and Brand X doctrines of undue deference. From this perspective, VanDyke and many (not all) of his Trump colleagues are a big part of the problem — not the solution!

Michael K. Mehr
Michael K. Mehr ESQ!
Senior Partner
Mehr & Soto LLP
Santa Cruz, CA
PHOTO: Website

Many congrats to Michael Mehr for vigorously and successfully litigating this complex issue in the 9th Circuit. It’s telling to compare the “quiet competence” of dedicated, expert advocates like Mehr with the “bombastic grandstanding” of VanDyke and others in the xenophobic right. Mehr and others in the NDPA have honed their their advocacy and scholarship skills by decades of giving a “voice” to those who otherwise are seldom “heard” by the powers that be.

Undoubtedly, given the circuit split, this eventually will end up at the Supremes. There, VanDyke’s fellow Trump appointees could well agree with him. But, that might be more reflective of problems with the composition of today’s Supremes than with the law. Stay tuned!

🇺🇸Due Process Forever!

PWS

08-17-22

🔌👎🏽GARLAND MUST “PULL THE PLUG” ON HIS FAILED APPELLATE COURT — BIA “DEFIES” EVIDENCE TO MOCK DUE PROCESS & DENY ASYLUM, SAYS 3RD CIR! — OGEE v. AG (Ghana)

Kangaroos
What kind of “judges” would “defy” the evidence of record to wrongfully deny asylum?
https://www.flickr.com/photos/rasputin243/
Creative Commons License

Read the 3rd Circuit’s (unfortunately) unpublished decision here:

https://www2.ca3.uscourts.gov/opinarch/202423np.pdf

Key quote:

The IJ credited Bimpong’s testimony, and the BIA did not disturb this finding. Yet the BIA concluded that Bimpong’s persecution was a personal land dispute that lacked any nexus to his membership in the Ashanti tribe. In doing so, the BIA deferred to the IJ’s conclusion that “the record is devoid of any evidence indicating that the [Enzema] Tribe targeted the applicant because of membership in the Ashanti Tribe.” AR 97 (emphasis added). That conclusion defies the record, which is replete with evidence that Bimpong’s tribal affiliation was a central reason for his persecution. See, e.g., AR 157, 162-63, 167–68, 185, 596, 598. For example, Bimpong testified that members of

the Enzema “did not want the land that [he] possessed to be owned by non-members of 4

the Enzema tribe,” AR 596, and that he “was a target of persecution because of [an] intertribal dispute between the Enzema tribe and Ashanti tribe.” AR 598.

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

Typical BIA BS prejudged, form denial “boilerplate.” “Devoid of evidence” — gimmie a break! We tried (obviously unsuccessfully) to eliminate this type of non-analytical nonsense several decades ago. It’s indicative of a totally broken system that is unfair and biased against migrants! Why is Garland allowing this continuing systemic injustice?

Demand that Garland replace his inept, unprofessional, unconstitutional, “Trump holdover” BIA with real judges who are experts in immigration, asylum, human rights, and fully committed to due process and fundamental fairness! 

To quote my good friend and Round Table 🛡 colleague, Hon. “Sir Jeffrey” Chase:

At the IJ level, the ACIJs have to be charged with determining if the IJ actually doesn’t know the law, or if they are choosing not to follow it.  Of course, you need ACIJs who actually know immigration law, which isn’t always the case anymore.  If it’s the former, you schedule additional training; if it’s the latter, they may need to suspend or remove the IJ.  That should be a priority for the next Chief IJ.

But why isn’t this being caught at the BIA level?  They continue to act as a rubber stamp.  There have been a few cases just in the past couple of weeks where the errors were really major and apparent.
A BIA that would “rubber stamp” denials without question or meaningful analysis so that OIL could then argue “deference” to railroad refugees and other individuals entitled to relief out of the country is precisely what Barr and Sessions intended to create. In other words, a “parody of justice” that would carry out the White Nationalist restrictionist agenda without giving it any thought. And, it’s no coincidence that this unconstitutional agenda falls hardest on the backs of  asylum seekers and other migrants of color. It also serves to reinforce the vile concept that individuals of color in the U.S. are not equal under the law.
The real question here is why Garland hasn’t effectively changed the system by bringing in real judges who are experts in immigration and human rights and who would be fair to all coming before his Immigration Courts regardless of race or status? “Gradual change” is unacceptable when individuals (and their conscientious representatives) are being subjected to deadly quasi-judicial incompetence on a daily basis. Tell Garland you’ve had enough!  
EOIR Clown Show Must Go T-Shirt
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept

🇺🇸 Due Process Forever!

PWS

08-16-22

⚖️NDPA SUPERSTAR BEN WIN-OGRAD WINS A BIGGIE IN 4TH ON IJ CONDUCT — Tinoco Acevedo v. Garland

Ben Winograd
Ben Winograd, Esquire
Immigrant & Refugee Appellate Center
Falls Church, VA

Dan Kowalski reports for LexisNexis Immigration Community!

CA4 on IJ Conduct: Tinoco Acevedo v. Garland

Tinoco Acevedo v. Garland

“Petitioner Rodolfo Josue Tinoco Acevedo appeals an order of the Board of Immigration Appeals (“BIA”) affirming the denial of his application for cancellation of removal. Because the BIA failed to address whether Tinoco Acevedo’s case should be remanded to a new immigration judge (“IJ”) under Matter of Y-S-L-C-, 26 I. & N. Dec. 688 (BIA 2015), we grant Tinoco Acevedo’s petition for review, vacate the order of removal, and remand to the BIA for further proceedings consistent with this opinion. … Rather than opine as to the exact grounds on which the BIA decided that the applicant was entitled to a new hearing before a new IJ in Matter of Y-S-L-C-, we remand for the BIA to interpret its precedent and address Tinoco Acevedo’s argument in the first instance. …  we grant Tinoco Acevedo’s petition for review, vacate the order of removal, and remand for the BIA to consider whether Tinoco Acevedo is entitled to a new hearing before a different IJ because the initial IJ’s conduct—both during and following the hearing—failed to satisfy the high standard expected of IJs under Matter of Y-S-L-C-. PETITION FOR REVIEW GRANTED; VACATED AND REMANDED.”  [Note: The IJ was Roxanne C. Hladylowycz.]

[Hats off once again to IRAC superlitigator Ben Winograd!]

pastedGraphic.png

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

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

Yet another example of the BIA not being familiar with and applying their own precedents where they could be favorable to the respondent. Any old boilerplate BS will do as long is the result is “dismiss and remove.”

It’s one thing for the BIA to articulate “high standards” for IJ conduct in Matter of Y-S-L-C-. It’s quite another to consistently enforce them where the lives of migrants are at stake!

It was a particularly bad idea for the BIA to spring this haphazard “good enough for government work” approach when Ben Winograd is appellate counsel. Winograd knows the BIA and 4th Circuit precedents better than most BIA judges. And, unlike the latter, he’s willing to stand up for immigrants’ legal rights!

It would be better for Garland and American justice — not to mention those seeking justice in Immigration Court, too often in vain — if brilliant, due-process-oriented “practical scholars” like Ben Winograd replaced the “holdover BIA judges” who aren’t up to the job of “guaranteeing fairness and due process for all.” Remarkably, there was a time in the past when that long disregarded judicial essential was the “vision” of EOIR.

Ironically, the Article III Judges of this 4th Circuit panel (Chief Judge Gregory, Circuit Judges Motz and Wynn) understand the critical requirements for EOIR judging better than AG Garland! That’s a problem (although, concededly, outside the “World of EOIR” Garland has had his best week as AG)!

This opinion was written by Chief Judge Roger Gregory. He continues to be a leader among Article III Judges who take due process and immigrants’ rights seriously! He’s also someone who “gets” the clear connection between immigrant justice (or, in too many cases lack thereof) and racial justice.

With the Chief Immigration Judge position now vacant, Judge Garland has a golden opportunity to appoint a “Judge Gregory clone” to that critical  position. See, e.g., https://immigrationcourtside.com/wp-admin/post.php?post=30193&action=edit. That would also be a wise course for Garland to take to replace the current glaringly inadequate leadership at his failing BIA! How about Chief Appellate Immigration Judge/Chairman Ben Winograd?

🇺🇸 Due Process Forever!

PWS

08-13-22

☠️⚰️🏴‍☠️ TITLE 42 CAUSES DEATH @ THE BORDER: Rachel Monroe @ The New Yorker Sums Up The Jim Crow Cruelty, Stupidity, & Futility Of Title 42 In One Paragraph! — Title 42 “has increased business for smuggling cartels and spurred people to cross in more dangerous places.”

RACHEL MONROE
Rachel Monroe
Contributing Writer
The New Yorker
PHOTO: Twitter

https://apple.news/AX5E8qIWlQYOauANHEV2g3w

. . . .

Between 2015 and 2020, about fifty bodies were recovered each year in Brooks County, according to an S.T.H.R.C. report. Then came Title 42, a policy enacted by the Trump Administration at the start of the COVID-19 pandemic that closed ports of entry and blocked most avenues for asylum claims, ostensibly for public-health reasons. The policy, which is still in place in a modified form, has increased business for smuggling cartels and spurred people to cross in more dangerous places. “Before Title 42, the calls we got used to be, like, eighty-per-cent apprehended, twenty-per-cent missing,” Canales said. “Now it’s flipped—it’s more like twenty-per-cent apprehended, eighty-per-cent missing.” So far this year, there have been nearly seventy recoveries of remains in Brooks County, putting 2022 on track to be the deadliest year on record.

. . . .

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

Read Rachel’s entire report, directly from the border, at the link.

So, before the Trump Administration’s bogus, racist “invocation” of Title 42, 80% of migrants came to the border or were easily apprehended close thereto — most probably because they turned themselves in to seek asylum through the legal system. And, lets not forget, this was with an already badly broken, fundamentally unfair, asylum legal adjudication system intentionally biased and “loaded” against legitimate refugees seeking protection!

Smart, honest public policy would have improved asylum adjudication at USCIS and at EOIR to quickly recognize and grant, with the assistance of NGOs and legal assistance groups, the many cases of legitimate refugees so that they could take their rightful, legal places in our society.

Additionally, by taking refugees seeking legal determinations “out of the equation,” enforcement against those seeking to evade legal processing — certainly a much, much smaller “universe” than is “out there now” — would have been enhanced. Business would have declined for smugglers, as those seeking protection would have been motivated to use a humane, fair, functioning legal system rather than being forced into “do it yourself” refuge!

You don’t have a genius to figure this out — just not be motivated solely by racism like Stephen Miller and his Trump regime cronies! Better qualified — non-Jim Crow righty — Federal Judges would also produce more humane, honest, and rational results.

Additionally, by running a legitimate asylum system, and complementing it with an honest, robust, legal refugee system for Latin America, the Caribbean, and Africa, we would finally have sound data on how many of those seeking to enter at the Southern Border are entitled to immigrate as legal refugees and how many are non-refugees. That’s something on which we now have no reliable information  — just myths and anecdotes, many provided by racist restrictionists and nativists with neither expertise in asylum law nor any real interest in the rule of law at the border.

As a result of Title 42, and the unqualified “Jim Crow” Federal Judges, GOP nativist AGs, and their apologists (including some in the media who repeat or republish, without critical examination, GOP racist lies about the border), we now have a deadlier than ever border; the legal immigration system at the border has been functionally abolished and replaced with an underground, extralegal system; the U.S. Government has ceded control of border migration policy to cartels and smugglers; and the job of the Border Patrol — forced to spend time apprehending legal refugees who seek only the protection to which they are legally entitled — has become impossible.

That’s what happens when we let GOP nativist pols, overt racists, and bad, right wing Federal Judges take over the immigration policies that were actually enacted by Congress — a key part of which are legitimate refugee and asylum systems and a fair, functioning, expert Immigration Court. Right now, we have NONE of the foregoing. And, innocent migrants at the border are too often paying the price — with their lives!

Border Death
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
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

“Enforcing the law” does NOT mean unfairly, unwisely, and illegally abrogating the legal asylum system and fair adjudications in Immigration Court at the border. It means fixing the legal asylum system including USCIS Asylum Offices. Perhaps most of all, it means reforming and replacing where necessary the broken, dysfunctional, leaderless, and non-expert Immigration Courts and a BIA that continues to misinterpret asylum and protection laws on a daily basis. We need a BIA of real judges with the expertise and guts to establish fair, humane, correct, positive precedents and to rein in or remove from asylum cases those Immigration Judges who are “programmed to reject, not protect!”

I, along with many others, watched the Brittney Griner travesty unfold. I saw the irony. President Biden was rightfully blasting the outrageous “kangaroo court” show trial that passes for justice in Russia. But, at the same time, he, Harris, and Garland are basically running a farcical “Russian style” dysfunctional immigrant “justice” system at EOIR and calling it a “court!”

Kangaroos
Perhaps, in addition to blasting the Griner farce, President Biden, VP Harris, and AG Garland need to take a closer look at the “Russian-style” justice being inflicted on migrants in their wholly-owned Immigration “Courts”  — which particularly target women, children, and migrants of color seeking justice under US laws. Indeed, many are still being arbitrarily returned without ANY process at all! Others get “off the wall” denials of their valid claims. Its this REALLY any way for a self-proclaimed “nation of laws” to operate?
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🇺🇸 Due Process Forever

PWS

08-05-22