"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
Rae Ann Varona Legal Reporter Law360 PHOTO: Linkedin
Dan Kowalski over at LexisNexis Immigration Community helpfully forwarded the pdf’s of Rae Ann’s article and the three briefs. You can access them here:
Our Round Table, with the help of some of the greatest litigators and law firms out there, continues to provide key support for the NDPA and timely expertise to the Federal Courts and father Executive on all levels!
Genevra W. Alberti, Esq. The Clinic at Sharma-Crawford Attorneys at Law Kansas City, Mo. PHOTO: The Clinic
Dear Colleagues,
The Clinic at Sharma-Crawford Attorneys at Law – a nonprofit removal defense organization in Kansas City, Missouri – is hosting its sixth annual Immigration Court Trial Advocacy College from Thursday, May 4, 2023 to Saturday, May 6, 2023 in the Kansas City metro area.
This is a unique, hands-on, one-on-one, training experience designed to make you confident in immigration court, and the program has something for beginners as well as experienced removal defense litigators. Under the guidance of seasoned trial attorneys from all over the country (myself included) and using a real case, real witnesses, and real courtrooms, participants will learn fundamental trial skills while preparing a cancellation of removal case for a mock trial. The complete conference schedule and faculty bios are available on The Clinic’s website here.
Days 1 and 2 of the program will focus on helping attendees master the fundamentals of trial practice and prepare a cancellation of removal case and witness for trial. For many of the sessions, attendees will be broken up into smaller groups, each with its own set of faculty members to provide one-on-one input. Each attendee will be assigned a role – either the respondent’s attorney, or the DHS attorney – and will have a volunteer “witness” to prep. On day 3, mock trials will be held in real courtrooms with faculty serving as the judges.
Tickets are available now, and you can register on The Clinic’s website here. There is a discounted rate for attorneys who are employed by a nonprofit. Price includes breakfast, lunch, coffee and refreshments throughout, along with a happy hour on Thursday. **VERY IMPORTANT: It is imperative that you commit to attending all 3 days of the conference, so please do not register unless you can do so.** If you have questions about this, please let me know. Proof of COVID-19 vaccination is also required.
Space is limited, so be sure to get your tickets soon. We hope to see you there!
I’ll be there again, along with my Round Table colleagues Judge Lory Rosenberg, Judge Sue Roy, and a host of other great faculty. See you in Kansas City in May!
“Going to Kansas City, Kansas City here I come . . . .”
Far right activist 5th Circuit Judges reacting to colleagues who followed law and ruled in favor of immigrants. PHOTO: Creative Commons.
The issue is whether an in absentia removal order can be based on a statutorily defective notice. The panel followed the Supreme’s decision in Niz-Chavez and rejected the BIA’s conflicting decision in Matter of Laparra. In other words, the panel required the Government to follow the statute, a process known as “complying with the law.” This sent some of this most conservative circuit’s most far-right judges over the edge. Here’s the en banc decision:
Credit Dan Kowalski over at LexisNexis for the “food fight” characterization.
The scofflaw GOP dissenters cited “deference” to the Executive, something they have pointedly refused to apply to Biden Administration precedents and policies favoring migrants.
The majority says: “[The BIA] flies in the face of the Supreme Court’s Pereira decision, which Laparra ignored.”
Incredibly, Garland is on the “wrong side” of this controversy, defending the legally incorrect misinterpretation of his “Trump holdover” BIA!
The statutory requirement at issue: That a “Notice to Appear” before the Immigration Court inform the individual of the time and place of the hearing. How difficult does that sound? Not very, unless you are bumbling bureaucrat at DHS and EOIR who chose, even after the Supremes’ initial decision, toviolate that decision and the statute in almost 100% of the cases instituted before the Immigration Courts!
Kudos to the 3 Trump appointees and one Bush II appointee who joined 3 Obama appointees and 2 Clinton appointees to uphold the rule of law and thwart their GOP scofflaw colleagues.
Interestingly, and perhaps mildly encouraging, the “Trump appointees” split 3-3 on this one.
Apparently nothing drives a wedge between conservative judges like the scary prospect of following the law when it gives immigrants a win!
Future ambitious academic study: How much of the current out of control backlog can be traced to the Government’s, and particularly the BIA’s, inept handling of straightforward notice requirements set forth in the statute?
There’s a reason why I keep referring to Garland’s out of control EOIR backlogs as “largely self-created,” albeit in fairness not exclusively by him. The Trump Administration, and to a lesser extent the Obama Administration, also “excelled” at “Aimless Docket Reshuffling” driven by “prioritizing” improper political goals over due process, fundamental fairness, quality, and practical scholarship in the Immigration Courts.
For all the world, it looks like the BIA just signed off on a “canned language, rote denial” that had little or nothing to do with the actual record and the arguments raised on appeal. Apparently, as long as the bottom line is to “dismiss” the respondent’s appeal, what goes above it is largely irrelevant to the “Deniers’ Club” that Garland employs as “appellate judges.”
In a system already struggling with a largely self-inflicted backlog of 1.7 million cases, unnecessary remands caused by poor BIA performance are NOT a “no harm, no foul” proposition. Moreover, how in good faith can Garland propose to “expedite” asylum cases at the border when many of his trial judges possess neither the expertise nor the temperament to fairly and efficiently decide asylum claims and the Trump holdover appellate body charged with providing guidance, enforcing best practices, and guaranteeing fairness is itself a major part of the problem? That’s what “designed for disaster” is all about!
Wouldn’t it be refreshing to have an AG who made due process, fundamental fairness, correct results, and careful, “practical scholarly” analysis the touchstone of “his courts” and who cared enough about our justice system to appoint a BIA of real, expert judges — “practical scholars, if you will, of which there are plenty outside of EOIR — capable of focusing on and achieving the foregoing values?
Apparently, in his comfy 5th floor office at DOJ where he thinks great thoughts and does little to achieve them, Garland can’t put himself in the unnecessarily frustrating position of actual human beings and their lawyers who are subjected to EOIR’s incompetent nonsense and “judicial malpractice” on a regular basis! He doesn’t even seem capable of relating to the Courts of Appeals Judges who are constantly called upon to correct fundamental mistakes and clear injustices that Garland ignores and his DOJ attorneys mindlessly defend! Perhaps this “blind spot” is because on the DC Circuit, Garland was absolved from the task of reviewing individual petitions for review emanating from the dysfunctional Immigration Courts that he inherited from his White Nationalist predecessors.
Whatever the reason for his lackadaisical performance, America needs and deserves an AG who takes immigrant justice, racial justice, due process, and equal justice for all seriously!
Garland, Mayorkas, and other Biden honchos appear unable to get beyond this “Stephen Miller vision” for legal asylum seekers. “Floaters — How The World’s Richest Country Responds To Asylum Seekers” EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)
Could there be any clearer example of the need to take this mess out of the DOJ and create a competent, expert, independent Article I Immigration Court with real judges?
The asylum/withholding portion of this decision appears to be an atrocious misconstruction and intentional misapplication of asylum law by the BIA!
This, in turn, should long ago have been adequate for a BIA of better-qualified appellate judges who have asylum expertise and are willing to to stand up for the legal rights of asylum seekers to issue a precedent finding a “pattern or practice” of such persecution in Guatemala. See, e.g., 8 C.F.R. § 1208.13(b)(2)(iii)(A).
With such a precedent, cases like this could be expeditiously granted at the Asylum Office or in focused Immigration Court hearings, instead of “kicking around the system” for more than three years and then being wrongly decided at both the trial and appellate levels. Wonder why our immigration system is a mess? Look no further than Garland’s anti-immigrant EOIR!
The panel’s conclusion that indigenous status wasn’t even “a reason” for gang persecution is preposterous — proof of institutional bias against asylum seekers, particularly those from the Northern Triangle!
The improperly and intentionally skewed asylum denial rates at our Southern Border feed the nativist fiction that asylum seekers are illegally seeking entry into the US. In reality, they appear to be victims of systemic racial, ethnic, and xenophobic bias fueled by both DHS and DOJ even under this Administration.
We currently have no functioning legal asylum system at ports of entry, nor have we had one for several years. “Gimmicks” like “Remain in Mexico” and “Title 42” have illegally replaced our legal protection system.
Why WOULDN’T folks seek refuge through irregular entry in such an insane situation? Who in their right mind wouldn’t?
This system further generates bogus “apprehension” numbers used by DHS, DOJ, and politicos of both parties to generate false panic about the arrival of persons seeking legal status that we have unlawfully suspended!
Many of these individuals deserve to be legally admitted and allowed to contribute to our society! Instead, they are demonized, demeaned, dehumanized, and otherwise mistreated by our Government.
Indeed, GOP politico-restrictionist-alarmists are already trying to inflame public opinion by raising the manufactured “specter” that a slow moving so-called “caravan” of unarmed, desperate, and vulnerable migrants seeking to apply for legal refuge from some of the most repressive and dangerous countries in the world are an existential threat to the security of what is supposed to be the most powerful nation on earth! Letter asking BIden to enforce laws at brder 11.4.21 What poppycock!
They mischaracterize the group as having “nonexistent asylum claims.” But, how would they or anyone else know, since we currently have no system to fairly adjudicate such claims and no reliable information about the individual circumstances on which they are based?
Instead of engaging in racially charged panic and lawless enforcement, why not just direct them to report to legal ports of entry where they could be properly screened by trained Asylum Officers in a prompt and fair manner? 400 well-trained Asylum Officers doing two cases per day could complete the screening in a matter of days or several weeks at most!
Those who pass credible fear could be referred to Immigration Court in cooperation with legal aid and NGO groups to help them prepare and insure appearance. Represented asylum seekers appear for Immigration Court at a rate approaching 100%! Why wouldn’t an Administration truly interested in a fair and orderly asylum system concentrate on increasing representation rather than imposing more “guaranteed to fail” enforcement-only gimmicks?
Those who do not pass credible fear could be returned, provided that can be done in a safe and humane manner, perhaps working with the UNHCR and other international aid organizations to insure safe and orderly acceptance in the home nations.
And, unlike the current lawless system, we would actually have some empirical information about the claims of those applying at the border. It seems likely that under a fair and legal application asylum law, many would have valid asylum claims. But, without a fair hearing system and more Immigration Judges and BIA judges who are experts in asylum law and will fairly apply it, who knows? Right now, everyone is just “guessing” about the potential merits the claims because we don’t now have, and haven’t for some years had, a fair system for deciding those individual cases!
An Administration unwilling to stand up for values, justice, and the rule of law for the most vulnerable among us doesn’t stand for much of anything at all. Maybe cowardice and lack of moral compass is the reason why Dems can’t govern and keep losing elections they should have won!
The GOP long ago “cornered the market” on dishonesty, immorality, and anti-democratic behavior. The Dems can gain nothing, and lose much, by emulating them!
“The NTA sent to Villegas de Mendez does not contain the information required to trigger the stop-time rule. See id. at 1478-79, 1485; see also § 1229(a)(1)(A)-(G). Neither does the subsequent notice of hearing sent to her. Thus, she did not receive the “single compliant document” required by statute. Niz-Chavez, 141 S. Ct. at 1485. The BIA consequently abused its discretion by committing an error of law. See Koon v. United States, 518 U.S. 81, 100 (1996); Ramos-Portillo v. Barr, 919 F.3d 955, 958 (5th Cir. 2019); Milat v. Holder, 755 F.3d 354, 365 (5th Cir. 2014). Therefore, the petition for review is GRANTED and the case is REMANDED to the BIA for further consideration in light of Niz-Chavez, 141 S. Ct. 1474, and consistent with this judgment.”
One major problem with constantly going with DHS interpretations is that many are both legally wrong and practical disasters. After the initial Pereira v. Sessions debacle the BIA had a chance to solve the problem. Instead, undoubtedly spurred on by the “deny everything culture” promoted by the Trump regime’s White Nationalist agenda, the BIA chose the worst possible legal interpretation with disruptive practical implications. Any real immigration expert could have seen this coming!
When was the last time in a potential “Chevron-type” situation that the BIA or the AG adopted the migrant’s proffered interpretation rather than DHS’s? Yet even with all the (in my view highly inappropriate) advantages conferred on the Government by the Supremes’ intellectual indolence in Chevron and its absurdist companion “Brand X,” Article III Courts, including the Supremes, reject BIA/AG interpretations on a regular basis. Pereira and Niz-Chavez are just two of the most prominent recent examples.
Moreover, because neither the AGs nor the BIA are respected experts in immigration and human rights, and, shockingly, none have significant experience representing individuals in Immigration Court, the mis-interpretations that they choose are often impractical and unworkable. This, in turn leads to confusion, unnecessary remands, and unmanageable backlogs, not to mention patent injustice and deadly results for the mere humanscaught up in this ongoing disaster! This is what “Dred Scottifcation” is all about!
The case highlighted above should have been reopened in 2017. In a “real” court system, with qualified judges, professional administration, and no political interference, it could have been completed by now. Instead, it’s no closer to completion than it was four years ago!
But, lots of time and resources have been wasted in defending the BIA’s wrong attempt to deny reopening! This nonsense by the Government, NOT dilatory tactics by migrants and their attorneys trying to navigate this intentionally user-unfriendly and often illegal and illogical system, is what “builds backlog!”
Indeed, a wiser system would have turned preliminary adjudication of these cases over to USCIS so that only those that could not be granted and were not appropriate for prosecutorial discretion (“PD”) would have been sent to Immigration Court. Virtually none of the “non-LPR cancellation” cases are legitimate enforcement priorities. A similar approach was used with the NACARA program under better overall management.
Instead, as a result of poor BIA decision-making and even worse “leadership” at the Trump DOJ, this case is no closer to a final resolution than it was in 2017. And, DHS and EOIR still haven’t systemically corrected the completely fixable practical problems that generated Pereira and Niz-Chavez in the first place. Nor have Garland and Mayorkas announced systemic plans for removing the unnecessary “cancellation backlog” from Immigration Court dockets even though they would be “low priorities” for ICE under the criteria announced by OPLA’s John Trasvina!
That’s why we have unmanageable backlogs! And they will continue until Garland cleans house at EOIR, brings in a diverse group of qualified expert judges, and empowers them to act independently, stand up to the frequent nonsense pushed by DHS, and “laser focus” on due process for individuals and instituting and enforcing best practices!
One of the most obvious of those “best practices,” totally missing from Garland’s mismanaged Immigration Courts to date, would be returning “docket control” to local Immigration Courts and ending the “Aimless Docket Reshuffling” by EOIR Headquarters and DOJ politicos that has helped generate the out of control backlog.
Many cancellation of removal cases could and should be “administratively closed.” But, inexplicably, Garland has yet to revoke Sessions’s ridiculously wrong Matter of Castro-Tum, and restore to Immigration Judges their power to administratively close cases. That’s notwithstanding that Castro-Tum has been rejected in whole or in part by every Circuit Court of Appeals to consider it.
How long is Garland going to continue to “sponsor” inferior, non-independent, pro-DHS “judging” and amateurish, politicized mismanagement that is destroying our entire legal system?
NIZ-CHAVEZ v. GARLAND, ATTORNEY GENERAL CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SIXTH CIRCUIT
No. 19–863. Argued November 9, 2020—Decided April 29, 2021
Nonpermanent resident aliens ordered removed from the United States under federal immigration law may be eligible for discretionary relief if, among other things, they can establish their continuous presence in the country for at least 10 years. 8 U. S. C. §1229b(b)(1). But the so- called stop-time rule included in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) provides that the pe- riod of continuous presence “shall be deemed to end . . . when the alien is served a notice to appear” in a removal proceeding under §1229a. §1229b(d)(1). The term “notice to appear” is defined as “written notice . . . specifying” certain information, such as the charges against the al- ien and the time and place at which the removal proceedings will be held. §1229(a)(1). A notice that omits any of this statutorily required information does not trigger the stop-time rule. See Pereira v. Ses- sions, 585 U. S. ___. Here, the government ordered the removal of pe- titioner Agusto Niz-Chavez and sent him a document containing the charges against him. Two months later, it sent a second document, providing Mr. Niz-Chavez with the time and place of his hearing. The government contends that because the two documents collectively specified all statutorily required information for “a notice to appear,” Mr. Niz-Chavez’s continuous presence in the country stopped when he was served with the second document.
Held: A notice to appear sufficient to trigger the IIRIRA’s stop-time rule is a single document containing all the information about an individ- ual’s removal hearing specified in §1229(a)(1). Pp. 4–12.
(a) Section 1229b(d)(1) states that the stop-time rule is triggered by serving “a notice,” and §1229(a)(1) explains that “written notice” is “re- ferred to as a ‘notice to appear.’ ” Congress’s decision to use the indef- inite article “a” suggests it envisioned “a” single notice provided at a
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discrete time rather than a series of notices that collectively provide the required information. While the indefinite article “a” can some- times be read to permit multiple installments (such as “a manuscript” delivered over months), that is not true for words like “notice” that can refer to either a countable object (“a notice”) or a noncountable abstrac- tion (“sufficient notice”). The inclusion of an indefinite article suggests Congress used “notice” in its countable sense. More broadly, Congress has used indefinite articles to describe other case-initiating plead- ings—such as an indictment, an information, or a civil complaint, see, e.g., Fed. Rules Crim. Proc. 7(a), (c)(1), (e); Fed. Rule Civ. Proc. 3—and none suggest those documents might be delivered by installment. Nor does the Dictionary Act aid the government, as that provision merely tells readers of the U. S. Code to assume “words importing the singular include and apply to several persons, parties, or things.” 1 U. S. C. §1. That provision means only that terms describing a single thing (“a no- tice”) can apply to more than one of that thing (“ten notices”). While it certainly allows the government to send multiple notices to appear to multiple people, it does not mean a notice to appear can consist of mul- tiple documents. Pp. 4–9.
(b) The IIRIRA’s structure and history support requiring the govern- ment to issue a single notice containing all the required information. Two related provisions, §§1229(e)(1) and 1229a(b)(7), both use a defi- nite article with a singular noun (“the notice”) when referring to the government’s charging document—a combination that again suggests a discrete document. Another provision, §1229(a)(2)(A), requires “a written notice” when the government wishes to change an alien’s hear- ing date. The government does not argue that this provision contem- plates providing “the new time or place of the proceedings” and the “consequences . . . of failing . . . to attend such proceedings” in separate documents. Yet the government fails to explain why “a notice to ap- pear” should operate differently. Finally, the predecessor to today’s “notice to appear” required the government to specify the place and time for the alien’s hearing “in the order to show cause or otherwise.” §1252(a)(2)(A). The phrase “or otherwise” has since disappeared, fur- ther suggesting that the required details must be included upfront to invoke the stop-time rule. Indeed, that is how the government itself initially read the statute. The year after Congress adopted IIRIRA, in the preamble to a proposed rule implementing these provisions, the government acknowledged that “the language of the amended Act in- dicat[es] that the time and place of the hearing must be on the Notice to Appear.” 62 Fed. Reg. 449 (1997). Pp. 9–13.
(c) The government claims that not knowing hearing officers’ avail- ability when it initiates removal proceedings makes it difficult to pro-duce compliant notices. It also claims that it makes little sense to re- quire time and place information in a notice to appear when that in- formation may be later changed. Besides, the government stresses, its own administrative regulations have always authorized its current practice. But on the government’s account, it would be free to send a person who is not from this country—someone who may be unfamiliar with English and the habits of American bureaucracies—a series of letters over the course of weeks, months, maybe years, each containing a new morsel of vital information. Congress could reasonably have wished to foreclose that possibility. And ultimately, pleas of adminis- trative inconvenience never “justify departing from the statute’s clear text.” Pereira, 585 U. S., at ___. The modest threshold Congress pro- vided to invoke the stop-time rule is clear from the text and must be complied with here. Pp. 13–16.
789 Fed. Appx. 523, reversed.
GORSUCH, J., delivered the opinion of the Court, in which THOMAS, BREYER, SOTOMAYOR, KAGAN, and BARRETT, JJ., joined. KAVANAUGH, J., filed a dissenting opinion, in which ROBERTS, C. J., and ALITO, J., joined.
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This is the type of case where I had hoped that Justice Gorsuch would “stick to his interpretative guns” by stopping the Government from basically redesigning clear statutory requirements “willy nilly” to suit their own purposes and disadvantage respondents. And, he came through! Big time! I’ve been critical of Justice Gorsuch in the past and am likely to be so again in the future. But, in this case, he did the right thing, and I, for one, am grateful!
Most encouraging, Justice Gorsuch “got” the way that the DHS and EOIR, with the deck already unfairly stacked in their favor, manipulate clear legal requirements for their own nefarious purposes and to the disadvantage of those struggling for justice in an inherently unfair system. There is absolutely no doubt that receiving “piecemeal notice” — incomplete and often sent to incorrect addresses or “personally served” without the proper reading and explanations — works to further disadvantage respondents.
Indeed, illegal, ineffective notices — some setting hearings on “phantom dates” and “imaginary times” — lead directly to an over abundance of “in absentia” orders and consequent illegal removals. Some unrepresented individuals understand how to reopen their hearings for lack of notice — but many are clueless; the Government system strives to keep them that way to “jack up the numbers,” meet “quotas,” and improve stats. Worse yet, Congress sometimes uses the “bogus stats” generated by DOJ and DHS to write legislation, conduct oversight, and establish policy. This is an astoundingly broken, dysfunctional, and intentionally unfair system — a disgrace to our entire justice system and our national conscience each day it is allowed to continue to operate in its abusive ways!
The majority in this case was both very interesting, and at least mildly encouraging, for those of us who believe in due process and fundamental fairness for all persons, including migrants, under law. In addition to Trump appointees Justice Gorsuch and Justice Barrett, another GOP conservative appointee, Justice Thomas, joined Justices Breyer, Kagan, and Sotomayor in the majority!
And, although this case has (incorrectly) seemed “hyper technical” to some Supremes’ watchers unfamiliar with immigration, it will have huge impact — forcing reopening and “redos” in tens of thousands, perhaps hundreds of thousands, of cases in the already backlogged (1.3 million cases) Immigration Court. That will be the direct result of poor jurisprudence by the BIA, lousy court administration by EOIR, and horrible policy decisions by DHS.
Just another prime example of how “haste makes waste” enforcement gimmicks continue to cause unnecessary chaos in the system. Why not just appoint progressive experts as Immigration Judges and BIA Appellate Judges. Qualified jurists who will understand immigration law, due process, and “get in right” in the first instance? Certainly seems like a reasonable approach. What is Judge Garland waiting for?
This, in turn should add to the already loud cries (from virtually everywhere outside Judge Garland’s universe and the restrictionist right) for sensible, readily available backlog reductions and accelerated movement toward better judges and independence in the Immigration Courts, not to mention better management in the DHS enforcement programs.
Here’s my favorite quote from Justice Gorsuch’s majority opinion:
In the end, though, all this speculation is beside the point. The dissent tries to predict how the government will react to a ruling that requires it to follow the law and then pro- ceeds to assess the resulting “costs” and “benefits.” Post, at 17, 20–21. But that kind of raw consequentialist calcula- tion plays no role in our decision. Instead, when it comes to the policy arguments championed by the parties and the dissent alike, our points are simple: As usual, there are (at least) two sides to the policy questions before us; a rational Congress could reach the policy judgment the statutory text suggests it did; and no amount of policy-talk can overcome a plain statutory command. Our only job today is to give the law’s terms their ordinary meaning and, in that small way, ensure the federal government does not exceed its statutory license. Interpreting the phrase “a notice to ap-pear” to require a single notice—rather than 2 or 20 docu- ments—does just that.
*
At one level, today’s dispute may seem semantic, focused on a single word, a small one at that. But words are how the law constrains power. In this case, the law’s terms en- sure that, when the federal government seeks a procedural advantage against an individual, it will at least supply him with a single and reasonably comprehensive statement of the nature of the proceedings against him. If men must turn square corners when they deal with the government, it cannot be too much to expect the government to turn square corners when it deals with them.
The judgment of the Court of Appeals for the Sixth Cir- cuit is
Reversed.
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
And, here’s some “immediate commentary” by Round Table spokesperson “Sir Jeffrey” Chase:
Victory!This was the case in which our Round Table amicus brief was specifically referenced in oral argument.
Knightess of the Round Table
Congrats to all involves, and Due Process Forever!
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
No. 19–438. Argued October 14, 2020—Decided March 4, 2021
Immigration officials initiated removal proceedings against Clemente Avelino Pereida for entering and remaining in the country unlawfully, a charge Mr. Pereida did not contest. Mr. Pereida sought instead to establish his eligibility for cancellation of removal, a discretionary form of relief under the Immigration and Nationality Act (INA). 8 U. S. C. §§1229a(c)(4), 1229b(b)(1). Eligibility requires certain nonper- manent residents to prove, among other things, that they have not been convicted of specified criminal offenses. §1229b(b)(1)(C). While his proceedings were pending, Mr. Pereida was convicted of a crime under Nebraska state law. See Neb. Rev. Stat. §28–608 (2008). Ana- lyzing whether Mr. Pereida’s conviction constituted a “crime involving moral turpitude” that would bar his eligibility for cancellation of re- moval, §§1182(a)(2)(A)(i)(I), 1227(a)(2)(A)(i), the immigration judge found that the Nebraska statute stated several separate crimes, some of which involved moral turpitude and one—carrying on a business without a required license—which did not. Because Nebraska had charged Mr. Pereida with using a fraudulent social security card to obtain employment, the immigration judge concluded that Mr. Pereida’s conviction was likely not for the crime of operating an unli- censed business, and thus the conviction likely constituted a crime in- volving moral turpitude. The Board of Immigration Appeals and the Eighth Circuit concluded that the record did not establish which crime Mr. Pereida stood convicted of violating. But because Mr. Pereida bore the burden of proving his eligibility for cancellation of removal, the ambiguity in the record meant he had not carried that burden and he was thus ineligible for discretionary relief.
Held: Under the INA, certain nonpermanent residents seeking to cancel
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PEREIDA v. WILKINSON Syllabus
a lawful removal order bear the burden of showing they have not been convicted of a disqualifying offense. An alien has not carried that bur- den when the record shows he has been convicted under a statute list- ing multiple offenses, some of which are disqualifying, and the record is ambiguous as to which crime formed the basis of his conviction. Pp. 5–17.
(a) The INA squarely places the burden of proof on the alien to prove eligibility for relief from removal. §1229a(c)(4)(A). Mr. Pereida accepts his burden to prove three of four statutory eligibility requirements but claims a different rule should apply to the final requirement at issue here—whether he was convicted of a disqualifying offense. Mr. Pereida identifies nothing in the statutory text that singles out that lone requirement for special treatment. The plain reading of the text is confirmed by the context of three nearby provisions. First, the INA specifies particular forms of evidence that “shall constitute proof of a criminal conviction” in “any proceeding under this chapter,” regardless of whether the proceedings involve efforts by the government to re- move an alien or efforts by the alien to establish eligibility for relief. §1229a(c)(3)(B). Next, Congress knows how to impose the burden on the government to show that an alien has committed a crime of moral turpitude, see §§1229a(c)(3), 1227(a)(2)(A)(i), and yet it chose to flip the burden when it comes to applications for relief from removal. Fi- nally, the INA often requires an alien seeking admission to show “clearly and beyond doubt” that he is “entitled to be admitted and is not inadmissible,” §1229a(c)(2), which in turn requires the alien to demonstrate that he has not committed a crime involving moral turpi- tude, §1182(a)(2)(A)(i)(I). Mr. Pereida offers no account why a rational Congress would have placed this burden on an alien who is seeking admission, but lift it from an alien who has entered the country ille- gally and faces a lawful removal order. Pp. 5–7.
(b) Even so, Mr. Pereida contends that he can carry the burden of showing his crime did not involve moral turpitude using the so-called “categorical approach.” Applying the categorical approach, a court considers not the facts of an individual’s conduct, but rather whether the offense of conviction necessarily or categorically triggers a conse- quence under federal law. Under Mr. Pereida’s view, because a person could hypothetically violate the Nebraska statute without committing fraud—i.e., by carrying on a business without a license—the statute does not qualify as a crime of moral turpitude. But application of the categorical approach implicates two inquiries—one factual (what was Mr. Pereida’s crime of conviction?), the other hypothetical (could some- one commit that crime of conviction without fraud?). And the Ne- braska statute is divisible, setting forth multiple crimes, some of which the parties agree are crimes of moral turpitude. In cases involving
Cite as: 592 U. S. ____ (2021) 3 Syllabus
divisible statutes, the Court has told judges to determine which of the offenses an individual committed by employing a “modified” categori- cal approach, “review[ing] the record materials to discover which of the enumerated alternatives played a part in the defendant’s prior convic- tion.” Mathis v. United States, 579 U. S. ___, ___. This determination, like many issues surrounding the who, what, when, and where of a prior conviction, involves questions of historical fact. The party who bears the burden of proving these facts bears the risks associated with failing to do so. This point is confirmed by the INA’s terms and the logic undergirding them. A different conclusion would disregard many precedents. See, e.g., Taylor v. United States, 495 U. S. 575, 600. Just as evidentiary gaps work against the government in criminal cases where it bears the burden, see, e.g., Johnson v. United States, 559 U. S. 133, they work against the alien seeking relief from a lawful removal order. Congress can, and has, allocated the burden differently. Pp. 7– 15.
(c) It is not this Court’s place to choose among competing policy arguments. Congress was entitled to conclude that uncertainty about an alien’s prior conviction should not redound to his benefit. And Mr. Pereida fails to acknowledge some of the tools Congress seemingly did afford aliens faced with record-keeping challenges. See, e.g., §1229a(c)(3)(B). Pp. 15–17.
916 F. 3d 1128, affirmed.
GORSUCH, J., delivered the opinion of the Court, in which ROBERTS, C.J.,andTHOMAS,ALITO,andKAVANAUGH,JJ.,joined. BREYER,J.,filed a dissenting opinion, in which SOTOMAYOR and KAGAN, JJ., joined. BARRETT, J., took no part in the consideration or decision of the case.
KEY QUOTE FROM DISSENT:
Finally, it makes particularly little sense to disregard this core feature of the categorical approach here. See id., at 203–204. As already noted, cancellation of removal is discretionary. Thus, when a conviction is not disqualifying under the categorical approach, the Government may still deny the noncitizen relief. If it turns out that an individual with a record like the one here in fact violated the statute in a reprehensible manner, that can be accounted for during the discretionary phase of the proceedings, when the categorical approach does not apply.
***
In my view, the Court should follow Congress’ statute. Congress has long provided that immigration courts apply- ing the INA provision here, like sentencing courts applying ACCA, must follow the categorical approach. See Mellouli, 575 U. S., at 805–806. Our cases make clear how that approach applies in a case like this one. We should follow our earlier decisions, particularly Taylor, Shepard, and John- son. And, were we to do so, ineluctably they would lead us to determine that the statutory offense of which Mr. Pereida was “convicted” is not “necessarily” a “crime involving moral turpitude.”
Because the Court comes to a different conclusion, with respect, I dissent.
**********************
“When in doubt, throw ‘em out,” seems to be the majority’s refrain. As pointed out by Justice Breyer, a decision that allowed Mr. Pereida, who has lived in the U.S. for a quarter of a century, to apply for cancellation of removal because of the uncertainty as to whether his 2010 conviction for “attempted criminal impersonation” under Nebraska law involved “moral turpitude,” would not have guaranteed him relief. It merely would have allowed the Immigration Judge to weigh the substantial equities that Mr. Pereida and his family had developed against his decade-old criminal conviction.
The Immigration Judge could then have decided, on the basis of a fully developed record, in the exercise of discretion whether or not Mr. Pereida merited a “second chance” in the U.S. And, of course, if the application were granted, ICE would still have the ability to appeal to the BIA, which exercises “de novo” review on questions of discretion.
There is lots that needs to be changed about our current immigration system. It’s too bad that Congress appears too deadlocked to get the job done.
PWS
03-04-21
UPDATE:
”Sir Jeffrey” Chase just reminded me that our Round Table 🛡⚔️filed an amicus brief in support of the respondent’s position in this case. Sadly, we didn’t carry the day, here! ☹️
But, we’ll be heard from again on the “categorical approach.” I guarantee it!
PANEL: SMITH, Chief Judge, HARDIMAN, and KRAUSE, Circuit Judges
OPINION BY: Judge KRAUSE
KEY QUOTE:
To determine if a noncitizen convicted of a state offense is subject to immigration consequences prescribed in federal law, the Supreme Court has instructed courts to compare whether the elements of the state offense define a crime that is the same as or narrower than the generic federal offense. See Descamps v. United States, 570 U.S. 254, 257 (2013). This
2
analysis, which has come to be known as the “categorical approach,” sounds simple in theory but has proven difficult (and often vexing) in practice, necessitating a “modified categorical approach” and generating an evolving jurisprudence around when the categorical or modified categorical approach applies.
That difficulty is borne out in the convoluted history of this case. Here, in what is now Lazaro Javier Larios’s third petition for review from prior reversals, the Board of Immigration Appeals (BIA) applied the categorical approach and held Larios ineligible for cancellation of removal under 8 U.S.C. § 1229b(b)(1) for having been convicted of “a crime involving moral turpitude.” 8 U.S.C. § 1182(a)(2)(A)(i)(I). Because we conclude the crime at issue—New Jersey’s terroristic-threats statute, N.J. Stat. Ann. § 2C:12-3(a)—should have been analyzed under the modified categorical approach, and, under that approach, the particular offense of which Larios was convicted is not a crime involving moral turpitude, we will grant the petition for review.
***************
Three strikes and you’re out?⚾️
Yes, it’s unnecessarily complicated. That’s mostly Congress’s fault. But, what good is a supposedly “expert tribunal” that can’t correctly resolve a complicated issue after three tries spanning 10 years?
If a criminal conviction was charged as a ground of removability or was known to the Immigration Judge at the time cancellation of removal was granted under section 240A(a) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(a) (2018), that conviction cannot serve as the sole factual predicate for a charge of removability in subsequent removal proceedings.
PANEL: ADKINS-BLANCH, Deputy Chief Appellate Immigration Judge; KELLY and COUCH, Appellate Immigration Judges.
Richard W. Mark, Esquire Partner Gibson Dunn New YorkAmer S. Ahmed, Esquire Partner Gibson Dunn New YorkHon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Retired Immigration JudgesKnightess of the Round Table
It is an axiom of due process that a party charged to defend against a legal proceeding must receive notice of the time and place of the proceeding and an opportunity to be heard. This Court’s ruling in Pereira v. Sessions, 138 S. Ct. 2105 (2018), reflects that axiom in the context of initiating removal proceedings by “notice to appear.”
This petition presents a straightforward question of enormous practical significance that has divided the five courts of appeals to have considered the issue: Must the initial written notice served on noncitizens to commence their removal proceedings provide—in
1 All parties have consented to the filing of this brief. Amici state that this brief was not authored in whole or in part by counsel for any party, and that no person or entity other than amici or their counsel made a monetary contribution intended to fund the preparation or submission of this brief.
2 The appendix provides a complete list of signatories.
2
one document—the “time and place at which the proceedings will be held” (along with charges and other specified information) in order to satisfy the require- ments of 8 U.S.C. § 1229(a), or does the statute allow the government to cobble together the required elements of a “notice to appear” from multiple documents, issued at different times, none of which alone contain all of the statutorily required information?
Resolution of this issue will affect thousands of people in the immigration system. For noncitizens applying for cancellation of removal, service of a valid “notice to appear” triggers the so-called “stop-time” rule, which terminates the period of continuous pres- ence required for cancellation eligibility. For noncitizens ordered removed in absentia, whether that se- vere penalty is proper depends on whether the notice served on the noncitizen satisfied the requirements of § 1229(a).
This Court should grant review to resolve the accelerating circuit split over this issue. The Fifth Circuit, agreeing with the Sixth Circuit, held that a defective “notice to appear” lacking the statutorily required time-and-place information could be “cured” by a subsequent “notice of hearing” containing that information, such that the separate documents considered together become “a notice to appear,” with the stop- time rule being triggered upon later service of the “curative” notice of hearing. See Yanez-Pena v. Barr, 952 F.3d 239 (5th Cir. 2020); Garcia-Romo v. Barr, 940 F.3d 192 (6th Cir. 2019). The Third and Tenth Circuits, based on the plain language of § 1229(a) and this Court’s decision in Pereira, 138 S. Ct. at 2105, have reached the opposite conclusion. See Guadalupe v. Atty. Gen., 951 F.3d 161 (3d Cir. 2020); Banuelos v. Barr, 953 F.3d 1176 (10th Cir. 2020). A divided panel
3
of the Ninth Circuit was in accord with the Third and Tenth Circuits, before that court granted rehearing en banc. See Lopez v. Barr, 925 F.3d 396, 405 (9th Cir. 2019), vacated and reh’g en banc granted, 948 F.3d 989 (9th Cir. 2020).
This Court should bring harmony to federal law by granting certiorari, reversing the Fifth Circuit, and restoring the common-sense interpretation of § 1229(a) as requiring one document that satisfies the statute’s requirements.
I. The question presented affects many thousands of people across the country. As the government told this Court in 2018, “almost 100 percent” of putative notices to appear omit the required time-and-place in- formation. Pereira, 138 S. Ct. at 2111. Hundreds of thousands of notices to appear are served each year; a dispute about validity is embedded in every proceed- ing initiated with a notice that lacks time-and-place information. Indeed, tens of thousands of cancellation applications remain pending, each one requiring an IJ to determine whether the stop-time rule was triggered by § 1229(a) notice. Similarly, tens of thousands of in absentia removal orders are issued every year, each one dependent on whether proceedings began with the noncitizen’s being served a notice to appear that com- plies with § 1229(a).
This case involves the application of § 1229(a) in both the cancellation of removal and in absentia removal contexts, thus presenting an optimal vehicle to address the question presented. See Petition for a Writ of Certiorari (“Pet.”) at 22-24.
II. Deciding the question presented will also pro- mote uniformity in the nation’s immigration laws. Uniformity in this sphere is a foundational principle
4
of American law, with the Constitution explicitly directing Congress “[t]o establish an uniform Rule of Naturalization.” U.S. Const. art. I, § 8, cl. 4. But there can be no uniform law if basic questions affect- ing the right of an individual to remain in the country get an answer that varies among the circuits. Such a regime would result in divergent outcomes based on geography alone, not the merits of any particular noncitizen’s case.
This unfairness may be exacerbated by the Department of Homeland Security’s (“DHS”) discretion to select the venue for a removal proceeding, and thus the law that governs the case. DHS’s ability to choose the venue, coupled with its ability to transfer detainees wherever it sees fit, opens the door to unfair forum shopping for the circuit law it prefers.
III. Requiring DHS to work with the Executive Office for Immigration Review (“EOIR”) to obtain time-and-place information before serving a notice to appear—and including such information in that document, as § 1229(a) and Pereira require—is practical and will reduce administrative inefficiency and error. Doing so will also achieve the legislative purpose of the Illegal Immigration Reform and Immigration Responsibility Act (“IIRIRA”), Pub. L. 104-208, Div. C, 110 Stat. 3009-546, of which § 1229(a) was a part, by instituting a “single form of notice” to “simplify procedures for initiating removal proceedings.” H.R. Rep. 104-469(I), 1996 WL 168955 at *159.
***************************
Many thanks to our GOOD friends Richard W. Mark and Amer S. Ahmed and their team over at the NY Office of Gibson Dunn for their extraordinary pro bono assistance in drafting our brief.
Two things stand out about this outcome: first, the remarkable philosophical flexibility of the Court’s conservatives when their political allies appear before them. The case is only the latestinstance in which they have tacitly endorsed some of the president’s more aggressive legal arguments, legitimizing his use of anti-immigrant fearmongering as public policy.
As Professor Nancy Morawetz detailed at the ImmigrationProf Blog, the majority reached its conclusion by selectively applying rules for analyzing vague laws—rules that, if applied to Barton’s case, might have led to a different result. Conservative judges often argue for resolving ambiguities by focusing on the plain meaning of statutory text. As a result, they are supposedly reluctant to assume that any statutory language is redundant or superfluous. (When the Wisconsin Supreme Court’s conservatives decided Democratic Governor Tony Evers couldn’t postpone in-person voting during the COVID-19 pandemic, for example, they leaned heavily on this principle.) But here, the majority’s reasoning required treating part of the text as redundant. Kavanaugh barely bothered to address this divergence from prevailing conservative judicial philosophy: He simply stated that “redundancies are common in statutory drafting,” and that in this case, “the better overall reading of the statute contains some redundancy.”
“That is not the argument you would expect from the conservative wing of the Court,” Professor Morawetz wrote. “It is hard to walk away without the sense that there are different statutory interpretation rules at work for those who are powerful and those who are not.”
The majority and dissenting opinions also contrast sharply in the extent to which the justices considered the impact of their decision on Barton, his family, and other people like Barton whose fates this case determined. The majority begins with a recitation of his involvement with the criminal legal system, noting his convictions “on three separate occasions spanning 12 years.” Later, Kavanaugh takes care to name the substances—methamphetamine, cocaine, and marijuana—involved in the drug arrests, and describes the gun and assault convictions using lurid, cinematic language, explaining that Barton and a friend “shot up” an ex-girlfriend’s house. (This phrase is decidedly not a legal term of art.) Read together, these rhetorical flourishes evoke a familiar stereotype: a scary, drug-involved career criminal who is liable to start shooting at any moment.
The Barton described in Sotomayor’s dissent, which all four liberal justices signed, sounds like a different person altogether. She carefully lays out the facts of Barton’s early life, personal challenges, and subsequent accomplishments—valuable context that Kavanaugh and company conspicuously omitted. (The details about his background included in the beginning of this article come primarily from her opinion.) For example, it was Barton’s friend, Sotomayor notes, who actually fired at the ex-girlfriend’s house. In court, Barton testified that he didn’t know the friend even had a gun, let alone planned to shoot it.
The rest of the dissent fills in more of the blanks left by the majority. She writes about Barton’s stints in boot camp and rehab, and praises him for getting his GED diploma, graduating from college, and leading “a law-abiding life.” She notes that his drug convictions were for possession, not distribution, and linked them to his since-resolved dependency. She frames Barton’s three convictions against the backdrop of his 30 years in the United States, not the 12-year period in which they occurred. And she quotes the immigration judge who evaluated Barton’s initial application for mercy and badly wanted to approve it; he “is clearly rehabilitated,” the judge said, and his family “relies on him and would suffer hardship” if he were deported.
At every juncture, Sotomayor emphasizes the real-world implications of what the conservatives presented as a rather dry question of statutory interpretation: By the time immigration authorities put Andre Barton in removal proceedings, every member of his immediate family was living in America. Deporting him deprives his family of its primary provider, and sends him off to a country he hasn’t seen in decades.
Not until the very end of Kavanaugh’s opinion does he begin to grapple with the stakes of the case before him. “Removal of a lawful permanent resident … is a wrenching process, especially in light of the consequences for family members,” he wrote. “Removal is particularly difficult when it involves someone such as Barton who has spent most of his life in the United States.”
Just as quickly as he began to acknowledge Barton’s humanity, though, Kavanaugh returned to emphasizing the length of Barton’s rap sheet and the gravity of his transgressions. Congress chose to provide for the deportation of immigrants who commit “serious crimes,” he reasons, and to cut off those with “substantial criminal records” from the possibility of relief; the law, he writes, does not extend leniency to someone who “has amassed a criminal record of this kind.” Put differently, the Court’s conservatives are not responsible for what happened to Andre Barton; Barton, in their telling, did this to himself.
The exact words the justices use while resolving arcane questions about obscure immigration statutes may not seem significant. But when the choice the Court ultimately makes is so callously indifferent to the plight of vulnerable people, framing becomes a critical tool for defending their deliberative process. The decision in Barton v. Barr enables an unapologetically anti-immigrant president to deport longtime legal residents over events that took place years ago, breaking up families and depriving children of their parents and parents of their children. Kavanaugh knows this perfectly well; he acknowledges as much in his opinion. By sketching a two-dimensional portrait of Andre Barton as a dangerous ex-con and ignoring decades of growth and development since, Kavanaugh and the conservatives quietly absolve themselves of any moral obligation to think about it.
Jay Willis is a senior contributor at The Appeal.
*********************
Read Jay’s complete article at the link.
Yup. No surprise to readers of Courtside.
While, as usual, I was willing to give J.R. and his merry band the “benefit of the doubt,” presuming at least some modicum of intellectual honesty and human decency regardless of philosophical disposition, I’ve been “onto” the judicial, intellectual, and moral fraud going on at our highest Court for some time now.
Yeah, on a few occasions (see, e.g., Pereira, Guerrero-Lasprilla) some members of “The Five” have had no choice but to recognize that there was no possible way to justify some aspects of the Administration’s vendetta against immigrants and asylum seekers. But, on the big questions, from the bogus “Travel Ban,” to the cruel, inhuman, and clearly illegal and unconstitutional “Let ’Em Die in Mexico” Program, to the illegal White Nationalist scheme to misapply “public charge” grounds to attack the health and welfare of ethnic communities, “The Five” have been out front on the White Nationalist movement to “Dred Scottify” and dehumanize “the other.”
To be fair, the BIA decision here Matter of Jurado-Delgado, 24 I&N Dec. 24 I&N Dec. 29 (BIA 2006), originated years ago, in the “Post-Ashcroft-Purge-Era” of the BIA, during the Bush II Administration. But, all that shows is that the BIA’s drift away from the most fair and humane interpretations of the immigration laws and toward “enforcement friendly jurisprudence,” has been going on for the last two decades, across three different Administrations. However, under Trump, Sessions, Whitaker, & now Barr that “drift” has now become a “mad dash to the bottom.”
Thanks to folks like Jay Willis, Professor Nancy Morawetz, and other lawyers, commentators, and journalists, history will not let the “J.R. Five” escape unscathed for their corrupt backing of “The New Jim Crow.”
Due Process Forever! Jim Crow & Complicit Supremes, Never!
[Maj. Op.] “Barton argues that the BIA and the Eleventh Circuit misinterpreted the statute. He contends that the §1182(a)(2) offense that precludes cancellation of removal must be one of the offenses of removal. We disagree with Barton, and we affirm the judgment of the U. S. Court of Appeals for the Eleventh Circuit.”
[Dissent] “At bottom, the Court’s interpretation is at odds with the express words of the statute, with the statute’s overall structure, and with pertinent canons of statutory construction. It is also at odds with common sense. With virtually every other provision of the INA, Congress granted preferential treatment to lawfully admitted noncitizens—and most of all to LPRs like Barton. But because of the Court’s opinion today, noncitizens who were already admitted to the country are treated, for the purposes of the stop-time rule, identically to those who were not—despite Congress’ express references to inadmissibility and deportability. The result is that, under the Court’s interpretation, an immigration judge may not even consider whether Barton is entitled to cancellation of removal—because of an offense that Congress deemed too trivial to allow for Barton’s removal in the first instance. Because the Court’s opinion does no justice to the INA, let alone to longtime LPRs like Barton, I respectfully dissent.”
********************
Thanks Dan.
Justice Kavanaugh wrote the majority opinion.
As a frequent critic of the “J.R. Five” and their general predisposition to stretch to reward the regime over individuals seeking Due Process and fundamental fairness, I wasn’t surprised by this result.
As compared with trashing the legal rights of asylum seekers and those seeking legal status as “The Five” have done in other cases, this decision on waivers has a much more limited impact. Nevertheless, it does unnecessarily “screw” long-time members of our society with potential equities to offset their misconduct.
The vote should have been 9-0 in favor of Mr. Barton. The “GOP majority,” supposedly made up of “strict constructionists,” “torqued” the actual language of the statute to reach their preferred result — “stiffing” Mr. Barton who has resided in the U.S. since age 10.
By contrast, reading the statutory language at its face value, Justice Sotomayor and her dissenting colleagues also reached a practical, common sense result that would have allowed Immigration Judges to “weigh the equities” in deciding whether to grant the waiver to long-time green card holders. It by no means guarantees them a “win.” It just allows them and their families to to “make their case” on the merits.
Perhaps, effectively denying individuals a meaningful “day in court” on relief from deportation speeds up the “deportation railroad” a bit. But, at what cost?
1) The exceptional and extremely unusual hardship for cancellation of removal is based on a cumulative consideration of all hardship factors, but to the extent that a claim is based on the health of a qualifying relative, an applicant needs to establish that the relative has a serious medical condition and, if he or she is accompanying the applicant to the country of removal, that adequate medical care for the claimed condition is not reasonably available in that country.
(2) The Immigration Judge properly determined that the respondent did not establish eligibility for cancellation of removal because he did not demonstrate that his qualifying relatives will experience hardship, including medical, economic, and emotional hardship, that rises to the level of exceptional and extremely unusual.
PANEL: MALPHRUS, Acting Chairman; CREPPY and CASSIDY, Appellate Immigration Judges
OPINION BY: Judge Garry D. Malphrus, Acting Chairman
María looked for work as a waitress as soon as she arrived. She knocked on the doors of 15 restaurants and was rejected each time. “Right now, no one is hiring workers, they’re firing people,” María said. Under the lockdown, she has had to put her search on hold.
María’s options in Guatemala are limited, particularly since it is not safe for her to go back to her home town. She and her little girl fled Guatemala for the US in late 2018 after the same gang that murdered María’s entire family over a land dispute, including the little girl’s mother, killed María’s partner and shot at María. Last summer, a US immigration judge found María’s account credible but decided her case did not meet the narrow legal standard for asylum. María filed an appeal but could no longer endure being locked up away from her niece. Because she was not the girl’s biological mother, Ice refused to release her from detention to reunite the family. After nearly a year apart, María requested deportation with the hope she and the girl could return together.
“It was notably easier for Ice to concede the bona fides of the relationship between María and her niece when removal to Guatemala was the goal,” said Suzannah Maclay, María’s attorney.
‘It is beyond cruel’: Ice refuses to reunite girl with the only family she has left
María was craving freedom after so long in detention but still finds herself spending her days inside. She wants her niece to go to school and get the education she never got. She feels restless, unable to start building a better life for them both. “I can’t do anything,” she said.
She believes the gang that murdered her family still wants to kill her, and she is always fearful they will discover she is back. She doesn’t want her niece to grow up alone. She tries to give the girl a sense of security, but the truth is hard to hide. “Why did they send us here?” the girl asked her upon arriving in Guatemala. “It’s too dangerous.”
As María and her child focus on day-to-day survival, they are also trying to heal from the trauma of their separation. Sometimes the girl tells María about foster care in New York. The stories are hard to hear. The girl describes getting her hands slapped when she touched things or being scolded in restaurants. “They humiliated her,” María said.
“Mami, I missed you so much,” the girl tells her. “I don’t ever want to be apart again.” María responds with a promise: “This won’t happen again.”
Now, a real appellate court, with qualified judges acting independently, might have used this as an opportunity to direct that Immigration Court hearings in all “non-criminal” cancellation of removal cases be deferred until such time as we can understand what is actually happening in Guatemala and other countries after the worldwide pandemic is brought under control.
After all, the situation is rapidly evolving. Or, I should say devolving! What’s the purpose of holding “trials” on conditions in foreign nations that are likely to change materially on a weekly or even daily basis?
Just look at the difference between the impact of the coronavirus in the United States one month ago and what is happening today. A month ago, folks were strolling the beaches of Florida and our President was basically minimizing the potential impact. Now there are over 10million Americans out of work, three-fourths of the country under “stay at home” orders (except for Immigration Court), with nearly 200,000 reported cases, and “best case” predictions of several hundred thousand deaths!
So, why would any rational person think, like the BIA does, that things will be “hunky dory” for those deported to Guatemala, particularly if they choose to take their U.S.C. children? Why would a poor corrupt country with a limited economy and few resources fare better than the world’s richest nation in weathering this crisis? When hospitals are breaking down all over the U.S., why would health care be readily available to recent returnees in Guatemala? With 10 million out of work here, why would jobs to support a family of five be readily available in Guatemala? The BIA’s decision in this case is as “counterfactual” as it is needlessly cruel!
Looking at it from a factual, legal, public health, or humanitarian viewpoint, the BIA’s timing and decision in this case were totally irresponsible.
We need an independent U.S. Immigration Court with better, more responsible, and more humane judges.
Guadalupe v. U.S. Att’y Gen., 3rd Cir., 02-26-20, published
PANEL: RESTREPO, ROTH and FISHER, Circuit Judges
OPINION BY: Judge ROTH
KEY QUOTE:
It is our interpretation of Pereira that it establishes a bright-line rule:
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.”14
The language is clear. Pereira holds that an NTA shall contain all the information set out in section 1229(a)(1). An NTA which omits the time and date of the hearing is defective. To file an effective NTA, the government cannot, in maybe four days or maybe four months, file a second – and possibly third – Notice with the missing information. And it makes sense to have such a bright-line rule: The ability of the noncitizen to receive and to keep track of the date and place of the hearing, along with the legal basis and cited acts to be addressed at the hearing, is infinitely easier if all that information is contained in a single document – as described in
blanks for time and place” but holding that this deficiency was not of jurisdictional significance); Perez-Sanchez v. United States Att’y Gen., 935 F.3d 1148, 1154 (11th Cir. 2019) (citing Ortiz-Santiago, 924 F.3d at 962) (“Under Pereira, . . . a notice of hearing sent later might be relevant to a harmlessness inquiry, but it does not render the original NTA non- deficient.”).
14 Pereira, 138 S. Ct. at 2113-14.
7
Case: 19-2239
Document: 67 Page: 8 Date Filed: 02/26/2020
15
Moreover, it seems to us to be no great imposition on the government to require it to communicate all that information to the noncitizen in one document. If a notice is sent to the noncitizen with only a portion of the statutorily required information, a valid NTA can easily be sent later which contains all the required information in one document – at such time as the government has gathered all that information together. The complete NTA would then trigger the stop-time rule.
The government argues, however, that the BIA’s
decision in Matter of Mendoza-Hernandez should be given
Chevron16 deference as a reasonable reading of an ambiguous
statute. There, the BIA relied on Pereira’s position that “the
fundamental purpose of notice is to convey essential
information to the alien, such that the notice creates a
reasonable expectation of the alien’s appearance at the removal
proceeding.” 17 The BIA determined that this purpose can be
served just as well by two or more documents as it could by
18
We conclude, however, that Chevron deference is
15 We do note that in Pereira the Court left “for another day whether a putative notice to appear that omits any of the other categories of information enumerated in § 1229(a)(1) triggers the stop-time rule.” 138 S. Ct. at 2113 n. 5.
16 Chevron, U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
17 Matter of Mendoza-Hernandez, 27 I. & N. Dec. at 531.
18 Id.
the statute.
one.
8
Case: 19-2239 Document: 67 Page: 9 Date Filed: 02/26/2020
inapplicable here because we are not merely interpreting the
19
whether the Supreme Court’s decision in Pereira forecloses
stop-time rule.
our interpretation of the statute in Orozco-Velasquez.
***********************
What does it mean:
In the 3rd Circuit, undocumented individuals who have been continuously physically present in the U.S. for at least 10 years prior to receiving a “Pereira-compliant” Notice to Appear” (“NTA”) are exempt from the “stop time” rule for non-lawful-permanent resident cancellation of removal.
An “after the fact” Notice of Hearing from EOIR does NOT remedy the “Pereira-defect” in the NTA for purposes of the stop-time rule.
Those whose cancellation of removal applications were improperly denied, or who were not given a chance to apply, because of the stop-time rule should be able to reopen their cases. This should add to the “Aimless Docket Reshuffling” and jack up the backlog some more, at least within the 3rd Cir.
The 3rd Circuit covers Pennsylvania, New Jersey, and Delaware.
This mess was largely self-inflicted by DHS & EOIR. They had many chances to remedy the “Pereira problem’ over the years, but chose not to do so.
I would expect the DOJ to find a petition for rehearing in this case, as they did in the Ninth Circuit. That could result in the Third Circuit’s decision being put “on hold.”
This split will eventually have to be resolved by the Supremes. But, that’s unlikely to happen until next year.
Congratulations and much appreciation to the six BIA Appellate Immigration Judges, led by former Judge John Guendelsberger, who courageously dissented from the en banc decision in Mendoza-Hernandez:
Judge John Guendelsberger, author
Judge Charles Adkins-Blanch, Vice Chair
Judge Patricia Cole
Judge Edward Grant
Judge Michael J. Creppy
Judge Molly Kendall Clark
Perhaps not surprisingly, Judges Guendelsberger, Cole, & Kendall Clark have since retired from the BIA.
Dissent remains important, if exceedingly rare at today’s BIA, where DOJ politicos and EOIR bureaucrats actively encourage “go along to get along,” pro-regime jurisprudence. Also, en banc decisions are disfavored at today’s BIA.
