🏴‍☠️ THIS WEEK IN “GARLANDING” — “What Me Worry” AG Attains “Verb Status,” Pisses Off WH, & More Tales Of Woe From The Land Where Justice Goes To Die!”

Alfred E. Neumann
Merrick Garland doesn’t worry about injustice in his courts! But, YOU should PHOTO: Wikipedia Commons

THIS WEEK IN “GARLANDING” — True Tales From The “Twilight Zone” Of American Justice!

By Paul Wickham Schmidt

Courtside Exclusive

February17, 2024

garland ( gar’ land) v.t. [garlanded, garlanding] [dv. USAG Merrick Garland via Prof. Laurence Tribe] m. inflict injustice by one in charge, often through inattention, inaction, or dithering. (Ex 1. I pray the judge won’t garland my case. Ex 2. My client was garlanded and deported to death. Ex 3. They will be garlanding asylum applicants at the U.S. border.)

I would love to take full credit for the above verb. But, that honor must go to the inspiring writing of Harvard Professor Laurence Tribe, one of AG Merrick Garland’s former mentors. See https://www.thenewcivilrightsmovement.com/2024/02/gross-abuse-merrick-garlands-former-constitutional-law-professor-is-now-blasting-him/.

By all accounts, President Biden and his White House were outraged this week when they were garlanded by the “Hur report.” Ironically, three years of complaining by some of Biden’s core supporters who helped elect him in 2020 about being systematically “garlanded” at EOIR brought not so much as a raised eyebrow from the WH. Indeed, they might now be viewed as just a preview of Biden’s “Miller Lite” dissing of his supporters and human lives at the border with his inanely enthusiastic support of an attempted human rights “fire sale” by Senate Dems! Obviously, it’s quite a different story when things come full circle and the “chickens finally come home to roost.”

But, enough of that. When we left our DOJ antihero last week he was fresh off paying out $1.2 million of your taxpayer dollars to settle a sexual harassment claim by one of his ex-EOIR employees! See https://immigrationcourtside.com/2024/02/09/%F0%9D%90%97%F0%9D%90%97%F0%9D%90%97%F0%9D%90%97%F0%9D%90%97-sex-the-courthouse-%F0%9F%A4%AF-a-tragicomic-%F0%9F%8E%AD-series-starring-judge-merrick-garland-dag-lisa-mo/.

You might think that’s hard to top! But, you would be wrong! Let’s get started on this week’s trip around “the land where due process and fundamental fairness fear to tread!” 

  1. No Due Process In The Omaha Immigration Court

The ACLU released it’s report condemning Garland’s Omaha Immigration Court for a plethora of due process abuses. See https://www.aclunebraska.org/en/press-releases/new-report-finds-omaha-immigration-judges-routinely-compromise-peoples-rights.

Among the “lowlights:”

  • The project focused on pretrial hearings that can encompass pleadings, scheduling and other technical matters. The average observed hearing ran under four minutes, a rapid-fire pace to cover all of a hearing’s required steps.

  • Judges advised people of their rights in only 18% of the observed hearings. Most often, this involved reading rights to everyone in a group instead of individually.

  • Immigration courts are required to provide interpretation in the preferred language of the individual appearing at a hearing at no cost to the individual. The court frequently failed to provide Central American Indigenous language interpretation. This impacted roughly four out of five individuals who preferred to speak in a Central American Indigenous language.

  • In about one in five observed hearings, the individual was not represented by an attorney.

Of course, one might wonder why it is the responsibility of the ACLU to ferret out things that Garland should have discovered and corrected himself. But, no matter. Those poor souls whose lives and future are in the hands of the Omaha Immigration Court can expect to be garlanded.

2) Shenanigans in Chicago

Dan Kowalski reports:

IJs hide the ball; find the secret list or lose your case

Friends,

Immigration court practitioners in many cities now face a new hurdle: find, and adhere to, a secret list of IJ procedural preferences (requirements, actually)…posted, in one case, in the “pro bono room” of one court.  NOT online anywhere.  Oh, and it changes frequently, and without warning.  See the attached sample from Chicago.

Practitioners have complained to EOIR, so let’s see what happens.

 

I have a funny feeling that PWS may have a thing or two to say about all this.

DPF!

2024.02.05 – EOIR Chicago IJ Hearing Preference Sheet

Indeed I do, my friend, indeed I do. This one hits “close to home.”

Back in 2006 my friend and Round Table colleague Judge John Gossart of Baltimore headed a group of IJs who took on the monumental task of writing the first Immigration Court Practice Manual (“ICPM”). Based on Judge Gossart’s own “local court rules and best judicial practices” developed over decades, the ICPM built on the success of the award- winning BIA Practice Manual, created and issued during my tenure as BIA Chair. 

One of the key features of the ICPM is that  It superseded and erased all then-existing “local rules.”

Those few of us IJs who did public education events — under the watchful eye of our HQ “handlers” — were encouraged to tout and promote the ICPM as the “definitive guide” to successful practice before the courts, which, of course I dutifully did as reflected in my speeches from those days. I believe we even had “Q&A” sessions with the local immigration bar to promote and explain the ICPM.

Now, after years of gross mismanagement under Trump and Biden, things have come full circle. The oft-conflicting, idiosyncratic, and frequently inaccessible or counterintuitive “local rules” that the ICPM was created to eliminate evidently have returned with a vengeance.

Meanwhile, the very substantial amount of time, resources, credibility, and effort that went into creating, distributing, and implementing the ICPM has been a colossal waste of taxpayer resources because the last two Administrations have failed in their duty to competently and professionally administer EOIR!

And let’s not leave out Congress! If ever there were a need for a new, independent, professional, expert Article I Court System it’s EOIR. Yet, although Dems have introduced bills, the GOP has expressed no interest in Article I, nor has it been a priority for Congressional leadership and the Administration. It wasn’t even “on the radar screen” during the failed Senate “debate” on the immigration system.

Both Chicago Immigration Court practitioners and those IJs, current and past, who devoted their professional time and energy to the ICPM have been garlanded.

3) ADR On Steroids In Virginia

A long-time DMV immigration lawyer told the “Courtside I-Team” this week:

I routinely have MCHs listed as “in person” that are actually by Webex (I had one today). I also have an Individual on Thursday listed as Webex, but I received an email at 4:00 PM today stating that this was an error, and it was actually in person. I replied that I could not attend in person, as I have too many other cases and family issues to rearrange my schedule at the last minute. We’ll see what happens, but all this is typical of an agency that could care less about applicants, practitioners or due process of law. Take care.

For decades, practitioners and experts had been begging DOJ and EOIR to enter the 21st century with automation. Dishearteningly, now that automation has belatedly arrived at EOIR, it’s being used to severely diminish customer service rather than improve it!

It seems that every whim, irrationality, inefficiency, and inconvenience that developed at EOIR over years has now been “automated” to maximize the trauma and stress inflicted on those appearing before these broken courts. As this example points out, that has led to “Aimless Docket Reshuffling (“ADR”) on steroids!”

And here’s why automated ADR is such a powerful tool! Some practitioners have told me that it allows EOIR to unilaterally schedule them to be in three or four different courts at the same time, with almost no notice. Then, it’s up to the lawyer to file individual  “motions to reschedule” to clean up EOIR’s mess. 

Sometimes they are granted, sometimes denied without any rationale. All of this leads to more work and case shuffling but, importantly, without ever getting to the merits of any case! 

Meanwhile, the backlog grows exponentially and the stress levels on the private bar and the staff ratchet up.

There might be surer ways to destroy a court system, but none come immediately to mind. This is garlanding at its best!

4) Another “F” In “Immigration Law 101” From The 3rd Circuit

This from Dan Kowalski at LexisNexis:

CA3 CAT Remand (Somalia) – Herrow v. Atty. Gen.

https://www.govinfo.gov/content/pkg/FR-2024-02-12/pdf/2024-02829.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca3-cat-remand-somalia—herrow-v-atty-gen

“[W]e conclude that the BIA, in deciding his CAT claim, failed to consider evidence favorable to Herrow. For that reason, we will remand his petition as it applies to that claim. … Herrow claims that the BIA and IJ erred in denying his CAT claim and in finding that (1) he is unlikely to face torture and (2) the Somali government would not acquiesce in such torture. Because the BIA and IJ ignored evidence favorable to Herrow, we will grant his petition in part and remand for a more comprehensive review of the evidence. … To establish a likelihood of future torture, the record must demonstrate an aggregate risk of torture to the noncitizen that exceeds fifty percent. In making this determination, the IJ must address what is likely to happen to the petitioner if removed, and whether “what is likely to happen amount[s] to the legal definition of torture.” In answering these questions here, the BIA and IJ found that Herrow did not demonstrate a likelihood of torture. We conclude, however, that this determination could not have been made if all the evidence presented by Herrow had been properly considered.”

[Hats off to Christopher M. Casazza and Caitlin J. Costello!  Audio of the oral argument is here.]

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

Being wrongfully denied CAT is no small matter, particularly if the USG is threatening to send you to Somalia. Lets get a glimpse of what happens in Somalia, courtesy of the latest report from our State Department:

Government security forces, including NISA and the Puntland Intelligence Agency (PIA), detained boys and adult men in the same facility and threatened, beat, and forced them to confess to crimes, according to Human Rights Watch.  There were reports of rape and sexual abuse by government agents, primarily members of the security forces.  The Human Rights Center, a local nongovernmental organization (NGO), reported two Somaliland police officers, area commissioner Hassan Ismail and Mustafe Yusuf Dheere, raped Nimo Jama Hassan on June 4 in Caynabo (see sections 1.g. and 6).

Al-Shabaab imposed harsh treatment and punishment on persons in areas under its control (see section 1.g.).

Torture and other cruel, inhuman, or degrading treatment or punishment at the hands of clan militias, some of which were government-affiliated, remained frequent.  A strong and widespread culture of impunity continued, due mainly to clan protection of perpetrators and weak government capacity to hold the guilty to account.

You might think that would lead Garland and his subordinates to take extra care to get these cases right. But, you would be wrong. Dead wrong in many cases. “Good enough for government work” is the touchstone of garlanding. 

By all accounts, Garland was a stellar student during his Harvard Law days. But, not so much some of his EOIR judges at the trial and appellate levels, particularly some of the “Sessions/Barr holdovers” who appear to have been appointed to the bench primarily because they were viewed as likely to deny protection without regard to law or facts. (I’ll concede that Barr and Sessions were wrong about some of their appointments who turned out, perhaps against  the odds, to be fair judges.)

Far too many EOIR judges receive “Fs” from the Courts of Appeals on the basics of immigration and asylum law, even though most mistakes never get to the Article III Courts or manage to otherwise wend their way through the system, thereby endangering lives.

Mr. Herrow was garlanded, but survived (at least for now) thanks to the work of his lawyers and the Third Circuit. 

Well, folks, that’s this week’s wrap from Gar-Land, “the land that justice forgot!” But, stay tuned to Courtside for future updates on garlanding and its victims! 

What’s on the horizon: In March, a final report expected from AILA Ohio on systemic racism at EOIR! Should be a great read!

🇺🇸 Due Process Forever!

PWS

02-17-24

⚖️ EOIR: WHAT WORKS, WHAT DOESN’T — Why Hasn’t Garland Fixed The Basics? 🤯

1) WHAT WORKS

NDPA “Four Star General” ⭐️⭐️⭐️⭐️ Charles Kuck reports:

My partner Danielle Claffey won yet ANOTHER Russian Asylum case the belly of the beast Atlanta Immigration Court.  THIS is why lawyers are essential in asylum cases!

Danielle says:

Earlier this week, I had the great fortune of securing asylee status for a young Muslim girl from Russia, before an Atlanta immigration judge. Though she is young and was so quiet for the last year I was handling her case, in court, she was strong, confident, and provided vivid detail of what she went through for the entire 19 years of her life in Russia before fleeing for America. After the judge formally granted her asylee status, and the government waived appeal, the judge told her she was sorry for everything she went through in her home country. When the judge granted her case, and the interpreter translated the judge’s words, it was the first time I saw my client smile, followed by a big deep breath. She has carried a lot in her 21 years, but can now rest easy and pursue all of her dreams here in the U.S.

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Danielle M. Claffey, EsquirePartner Kuck Baxter LLC Atlanta, GA PHOTO: Kuck Baxter
Danielle M. Claffey, Esquire
Partner
Kuck Baxter LLC
Atlanta, GA
PHOTO: Kuck Baxter

Many congrats, Danielle, and thanks so much for sharing! With great representation, anything is possible, even in Atlanta!

THIS is actually the way Immigration Court could and should work on a regular basis from all involved! Teamwork for justice! Note that:

  • No appeal;
  • No petition for review;
  • No remand;
  • No “aimless docket reshuffling;”
  • No need to keep renewing work authorization;
  • Respondent feels welcomed and understood by U.S. justice system;
  • Respondent leaves courtroom on the way to a green card, eventual U.S. citizenship, and can fulfill full potential in society;
  • Models and rewards best practices and professional cooperation (by EOIR, ICE, and the private bar) in achieving “justice with efficiency;”
  • As Charles says, representation is essential; you bet; so, why hasn’t Garland worked WITH the pro bono bar, NGOs, and clinical educators to facilitate representation in every asylum case? (HINT: “Aimless Docket Reshuffling” and its derivative “Expedited Dockets” — both “Garland specialties” — are major, DOJ-created, impediments to effective representation and are particularly discouraging and problematic for pro bono representatives! 

2) WHAT DOESN’T WORK

Dan Kowalski reports for LexisNexis:

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca8-on-reasoned-decision-making-davis-v-garland

http://media.ca8.uscourts.gov/opndir/24/02/223262P.pdf

“The BIA erred in affirming the IJ. The entirety of the BIA’s analysis about the motion to reopen was that Davis “has not established that evidence of his mental health issues and of his past and feared harm if returned to Liberia are new, previously unavailable, or would likely change the result in his case.” This one sentence alludes to the elements of a motion to reopen, but does not explain how they apply to Davis’s case. Neither the IJ nor the BIA met the requirements of reasoned decision-making. … Without an adequate explanation, this Court cannot conduct a meaningful review of the BIA’s September 30, 2022 order. … This Court grants Davis’s petition for review in case no. 22-3262, denies the petition for review in case no. 23-1229, and remands for further proceedings consistent with this opinion.”

[Hats off to Colleen Mary Cowgill, Joseph N. Glynn, Elaine Janet Goldenberg, Keren Hart Zwick, Zachary Scott Buckheit, Golnaz Fakhimi, David R. Fine, Kira Michele Geary, Haarika R. Reddy, Cynthia Louise Rice and Kate Thorstad!]

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Congrats to the NDPA team from Immigration and Disability Law Scholars.

But, this is an example of how Merrick Garland’s DOJ is failing the basics of American justice! Note that:

  • Two levels of EOIR flunk “Judging 101” — badly;
  • Inappropriate “defense of the indefensible” (and easily correctable) by Garland’s DOJ (OIL) asserting semi-frivolous jurisdictional argument;
  • Wastes Court of Appeals time on something Garland could and should have corrected and prevented from reoccurring;
  • Failure to follow Circuit precedent by both EOIR and OIL;
  • Failure to apply established standards;
  • Likely use of mindless “any reason to deny boilerplate” at EOIR;
  • Generates needless motion to reconsider;
  • After four years, two IJ hearings, two administrative appeals, a motion to reopen, a motion to reconsider, a trip to the Court of Appeals, case remains unresolved;
  • Competent EOIR Judges could have reopened the case and ruled on the merits in less time and using fewer resources than trying to mindlessly avoid providing the respondent with a reasoned decision;
  • In a system with three million pending cases these types of easily avoidable, sophomoric mistakes from supposedly “expert” judges are repeated over and over again— not always caught and corrected — leading to denials of due process and fundamental fairness and promoting backlog-building “aimless docket reshuffling!”
  • What if the the wonderful team at “Immigraton and Disability Law Scholars” could devote 100% of their time to representing vulnerable individuals at merits hearings in Immigration Court rather than having to correct avoidable mistakes by EOIR and OIL?

After three years in charge of EOIR, why hasn’t Merrick Garland, a former Court of Appeals Judge nominated to the Supremes:

  • Cleaned house at EOIR;
  • Brought in new, expert, dynamic, due-process-focused leadership;
  • Institutionalized best practices (see example 1 above);
  • Attacked system-wide anti-immigrant culture, lack of quality control, and unprofessional decision-making that continues to plague this critical “retail level” of American justice (see example 2 above);
  • Fixed OIL so that it will stop undermining justice in America by raising specious arguments and defending indefensible EOIR mistakes in the Article III Courts?
Alfred E. Neumann
Merrick Garland’s “Alfred E. Neumann Approach” at EOIR: Indolent, inappropriate, ineffective!
PHOTO: Wikipedia Commons

It’s not rocket science; it doesn’t require legislation (although Garland certainly should have been publicly pushing for Article I); it just takes a laser-focused commitment to due process, fundamental fairness, best practices, and efficient delivery of justice from what continues to be America’s worst “court system!” 

Why that leadership and action isn’t coming from Garland is a question that everyone who cares about the future of American  🇺🇸⚖️ justice should be asking every day! Fix the fixable! Model the best! That’s “Good Governing 101!” 

 🇺🇸 Due Process Forever!

PWS

02-03-24

🤯 MORE GOP BORDER BS EXPOSED: TRUMP’S “NEW AMERICAN GULAG:” ☠️ Incredibly Expensive, Intentionally Cruel, Basically Ineffective!

David J. Bier
David J. Bier
Associate Director of Immigration Studies
Cato Institute
PHOTO: Cato Institute

https://www.cato.org/blog/trumps-detention-surge-failed-significantly-increase-removals

David J. Bier writes for Cato Institute:

President Biden is asking Congress for $13.6 billion to fund border enforcement operations, a significant portion of which will go to Immigration and Customs Enforcement (ICE) to detain more immigrants. This strategy is reminiscent of President Trump’s administration, which also poured resources into ICE detention in 2018 and 2019, but that effort produced very little change in the number of ICE removals—the stated goal for both Trump and Biden.

. . . .

In fact, President Biden is proposing to increase ICE detention by only 9,000 beds, from the current 37,000 to 46,000. The federal government should detain and deport individuals who pose national security and public safety threats to the United States, but it should not spend taxpayer dollars on useless anti‐ immigrant theater. Moreover, the Department of Homeland Security’s Office for Civil Rights and Civil Liberties has found that ICE detention sites routinely mistreat their detainees in ways that are “barbaric,” and there is no reason to expose anyone unnecessarily to this type of treatment.

A more effective approach to address the border issue is to facilitate legal immigration: let people come legally. This approach has been demonstrated to work, would reduce government expenditures, and make the immigration process more orderly.

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Read David’s full article, with charts and data, at the above link.

As David points out, the  “New American Gulag” is bad for our nation and humanity. Unhappily, though, it’s good for the corporations who run private prisons. They also provide jobs in out of the way places where migrants are stashed. And, they contribute money and lobby politicos of both parties. That’s why human rights lose out almost every time in the immigration debate. 

Immigration enforcement is an “industry” where failure = success! The more detention, apprehension, and deportation fail, the greater demand there is by politicos for more of it!

You can bet that when the coming waves of “enhanced” repression and human rights violations predictably fail, there will be demands for even harsher and more expensive enforcement, imprisonment, and deportations to deadly places!

It’s a dangerous, degrading, wasteful cycle that America just can’t seem to break. There are too many interests that see the human and fiscal misery of the “Gulag” as a profit center or a political advantage and therefore are disinterested in what works or the common good.

Bullying
Even some Dems find that joining the white nationalist bullies in degrading and dehumanizing migrants of color is a “better political strategy” than standing up for the human rights of those who can’t vote!
Bully – The Noun Project icon from the Noun Project
Date 18 December 2017
This file is made available under the Creative Commons CC0 1.0 Universal Public Domain Dedication

As my friend Dan Kowalski often says, “the cruelty is the point.” Dehumanization, degradation, and gratuitous abuse of migrants of color is both highly profitable and politically advantageous for those on the right. So much so, that often even Democrats and some so-called “liberals” are afraid to oppose it and find their best “strategy” is to align with or enable the playground bullies! After all, they figure, it’s “only migrants from s—-hole countries whose lives and humanity are at stake.” Nothing to be gained from defending vulnerable persons!

🇺🇸 Due Process Forever!

PWS

01-22-24

🗽⚖️ PROVING OUR POINT, AGAIN: “Sir Jeffrey” & I Have Been Ripping The Garland BIA’s Contrived “Any Reason To Deny” Misinterpretations Of Nexus & PSG — 1st Cir. Is Latest To Agree With Us! — Espinoza-Ochoa v. Garland

Kangaroos
Turning this group loose on asylum seekers is an act of gross legal, judicial, and political malpractice by the Biden Administration and Merrick Garland!
https://www.flickr.com/photos/rasputin243/
Creative Commons License

Dan Kowalski reports for LexisNexis Immigration Community: 

http://media.ca1.uscourts.gov/pdf.opinions/21-1431P-01A.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/big-psg-and-nexus-victory-at-ca1—espinoza-ochoa-v-garland

“Here, the IJ and BIA found, and the government does not dispute, that Espinoza-Ochoa credibly testified that he experienced harm and threats of harm in Guatemala that “constitute[d] persecution.” But the agency concluded that Espinoza-Ochoa was still ineligible for asylum for two reasons. First, it held that Espinoza-Ochoa had failed to identify a valid PSG because the social group he delineated, “land-owning farmer, who was persecuted for simply holding [the] position of farmer and owning a farm, by both the police and gangs in concert,” was impermissibly circular. Second, the IJ and BIA each held that, regardless of whether his asserted PSG was valid, the harm Espinoza-Ochoa experienced was “generalized criminal activity” and therefore was not on account of his social group. We conclude that the BIA committed legal error in both its PSG and nexus analyses. We first explain why Espinoza-Ochoa’s PSG was not circular and then evaluate whether his PSG was “at least one central reason” for the harm he suffered. Ultimately, we remand to the agency to reconsider both issues consistent with this opinion. … For all these reasons, we agree with Espinoza-Ochoa that legal error infected both the PSG and nexus analyses below. Accordingly, we GRANT the petition, VACATE the decision below, and REMAND for further proceedings consistent with this opinion.”

[Hats way off to Randy Olen!]

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You’ve been reading about this damaging, deadly legal travesty going on during Garland’s watch:

🌲UNDER YOUR TREE:  A GIFT 🎁 FROM “SIR JEFFREY” CHASE OF THE ROUND TABLE 🛡️— “Asylum In The Time Of M-R-M-S-“ — “One reaction to this decision would have involved explaining that the Board’s illogical holding was reached not by error but by design, in furtherance of a restrictionist agenda; asking why the current administration hasn’t changed the makeup of a BIA specifically constructed to do exactly that . . . . But such talk would be of no practical help. What those representing asylum applicants and those in government deciding those claims need now is a path to negotiate this latest obstacle and still reach the correct result.”

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

How outrageous, illegal, and “anti-historical” are the Garland BIA’s antics? The classic example of Marxist-Leninist revolutionary persecutions involve targeting property owners, particularly landowners. Indeed, in an earlier time, the BIA acknowledged that “landowners” were a PSG. See, e.g., Matter of Acosta, 19 I&N Dec. 211 (BIA 1985).

But, now in intellectually dishonest decisions, the BIA pretzels itself, ignores precedent, and tortures history in scurrilous attempts to deny obvious protection. These bad decisions, anti-asylum bias, and deficient scholarship infect the entire system. 

It makes cases like this — which could  and should have easily been granted in a competent system shortly after the respondent’s arrival in 2016 — hang around for seven years, waste resources, and still be on the docket. 

This is a highly — perhaps intentionally — unrecognized reason why the U.S. asylum asylum system is failing today. It’s also a continuing indictment of the deficient performance of Merrick Garland as Attorney General. 

Obviously, these deadly, festering problems infecting the entire U.S. justice system are NOT going to be solved by taking more extreme enforcement actions against those whose quest for fair and correct asylum determinations are now being systematically stymied and mishandled by the incompetent actions of the USG, starting with the DOJ!

🇺🇸 Due Process Forever!

PWS

12-28-23

  

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

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

 

Dan Kowalski reports for LexisNexis Immigration Community:

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

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

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

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

pastedGraphic.png

Ashley Robinson ESQ
Ashley Robinson ESQ

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

cell/text/Signal (512) 826-0323

@dkbib on Twitter

dan@cenizo.com

Free Daily Blog: www.bibdaily.com

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Congrats to Jaime and Ashley!

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

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

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

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

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

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

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

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

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

😎Due Process Forever!

PWS

12-12-23

👏⚖️ TELLING IT LIKE IT IS! — Immigration Guru & Pundit Dan Kowalski Slams The Immorality & Intellectual Dishonesty Of The Viral “Border Debate” In Congress!

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

Dan writes on Substack:

Let’s Abandon Ukraine So We Can Be Mean To Mexicans, et al.

Or, How To Further Debase Congress

pastedGraphic.png

DAN KOWALSKI

DEC 6, 2023

U.S. immigration law and policy, including border security and asylum, have nothing to do with Ukraine, NATO, Russia and Putin. Right?

Wrong, if you are a Republican in Congress. Here, let Sen. John Cornyn (R-TX) explain: “I think … Schumer will realize we’re serious … and then the discussions will begin in earnest.”

Thanks for reading Dan’s Substack! Subscribe for free to receive new posts and support my work.

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If you are still having trouble with the concept, I’ll translate for you: “Yes, we understand and agree that Russia cannot be allowed to take over Ukraine, and we will fund aid to Ukraine, but in exchange, we insist on fundamental changes to our immigration laws to make sure no more Brown people come to America, starting right effing now.” (“Brown,” in this context, means anyone who is poor, Latin American, Asian, African, non-Anglophone…you get the idea.)

How will this play out in the next few weeks? I see three options: 1) Biden and the Dems cave, so the 1980 Refugee Act is scrapped, Dreamers get deported, the southern border is further militarized, and the economy tanks because a good chunk of the workforce is afraid to come to work; or 2) the GOP does a Tuberville and caves; or 3) the Unknown Unknown.

Stay tuned…

Thanks for reading Dan’s Substack! Subscribe for free to receive new posts and support my work.

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Thanks for telling it like it is, Dan! There is no validity to the GOP’s attempt to punish asylum seekers by unconscionably returning them to danger and death with no process.

The cruelty and threat to life from forcing desperate seekers to wait in dangerous conditions in Mexico, pushing them to attempt entry in ever more deadly locations along the border, detaining them in inhumane substandard prisons in the U.S., and or returning them without meaningful screening by qualified independent decision-makers is overwhelming. That Congress, the Administration, and much of the “mainstream media” choose to ignore, and often intentionally misrepresent, truth and reality about the horrible human and fiscal wastefulness of “border deterrence” doesn’t change these facts!

Border Death
Casket makers expect a huge boon from the deadly “border negotiations” going on in the U.S. Congress. But, the bodies of many of the victims of U.S. cruelty and blatant trashing of human and legal rights of asylum seekers might never be located. Those about to be sacrificed for political ends have “no voice at the table.” 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

The Administration’s three year failure to build a functional, robust asylum system at the border with humane reception centers, access to legal assistance, a rational resettlement system, and sweeping, readily achievable, administrative reforms and leadership changes at EOIR and the Asylum Office (as laid out by experts, whose views were dismissed) is also inexcusable. 

Yet, the media misrepresents this farce as a “debate.” It’s a false “debate” in which neither disingenuous “side” speaks for the endangered humans whose rights and lives they are bargaining away to mask their own failures and immorality.

🇺🇸 Due Process Forever!

PWS

12-08-23

⚖️🛡 LATEST NEWS  FROM THE ROUND TABLE:  “Round Table Files Amicus Brief in East Bay v. Biden”

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

From BIB daily:

http://www.bibdaily.com/

October 06, 2023

(1 min read)

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

EAST BAY SANCTUARY COVENANT, et al.,
Plaintiffs-Appellees,
v.
JOSEPH R. BIDEN, President of the United States, et al.,
Defendants-Appellants.

On Appeal from the United States District Court for the Northern District of California
Case No. 4:18-cv-06810-JST

BRIEF FOR AMICI CURIAE FORMER IMMIGRATION JUDGES & FORMER MEMBERS OF THE BOARD OF IMMIGRATION APPEALS IN SUPPORT OF PLAINTIFFS-APPELLEES AND AFFIRMANCE

TAGS:

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Proud to be a member of this great group fighting for due process. Also grateful for all the great lawyers and firms who have provided pro bono drafting assistance to “give us a voice that needs to be heard!”

🇺🇸 Due Process Forever!

PWS

10-09-23

🤯 WRONG AGAIN! — BIA Flubs Divisibility In 3rd Cir. — Pesikan v. Atty. Gen.

Dan Kowalski reports for LexisNexis Immigration Community:

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca3-on-divisibility-pesikan-v-atty-gen

https://www2.ca3.uscourts.gov/opinarch/203307p.pdf

“Petitioner Srecko Pesikan argues that the Board of Immigration Appeals (“BIA”) erred in concluding that his 2018 Pennsylvania conviction for driving under the influence (“DUI”) of marijuana constituted an offense involving a “controlled substance,” as defined in the federal Controlled Substances Act (“CSA”), thereby rendering him removable under the Immigration and Nationality Act of 1952, 8 U.S.C. § 1227(a) (“INA”). We agree and will grant his petition for review. … In sum, because the identity of the specific controlled substance is not an element of the Pennsylvania DUI statute, the state statute of conviction is indivisible and cannot serve as the basis for Pesikan’s removal under the INA. … For the foregoing reasons, we will grant Pesikan’s Petition for Review in case number 21-1262 and will reverse the order for removal.”

[Hats way off to appointed pro bono counsel Bruce MerensteinArleigh Helfer and Stephen Fogdall (argued)!  Here is a link to the audio of the oral argument.]

Stephen A. Fogdall, Esquire
Stephen A. Fogdall, Esquire

– Stephen A. Fogdall

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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These are important cases with high stakes! They deserve expert analysis from expert judges. 

Eliminating unnecessary Circuit reversals and remands like this would also help address the backlog-building, due-process-denying phenomenon of “Aimless Docket Reshuffling” at EOIR. Avoidable mistakes at the “retail level” are systemically costly to our justice system in more ways than one!

And, remember, that for every EOIR mistake that gets “caught” by the Article IIIs, dozens of these injustices probably go uncorrected! Circuit review is a luxury that isn’t available to most individuals who lose at the BIA level. Even here, Mr. Pesikan would have had no chance at the Circuit except for court-appointed pro bono counsel Stephen A. Fogdall and his team at Dillworth & Paxon, LLP, another luxury unavailable to litigants at the EOIR level.

Moreover, even when Circuit review does take place, the inappropriately deferential standards established by Congress allow (or even require) some Circuit panels to merely sweep glaring injustices under the rug without grappling with the overall constitutional implications of this shoddy, due–process-denying  system. Why on earth would “deference” be given or review restricted over the “gang that can’t shoot straight” at EOIR?”

Gang that couldn't shoot straight
Would you give “deference” to these guys?
Theatrical poster from Wikipedia

Congress and the Article III Courts appear unlikely to face up to the need for constitutionally-required reforms at EOIR in the near future. Therefore, as I pointed out yesterday, it’s critical that NDPA experts apply for judicial positions at EOIR to change the system for the better and save lives from “within.” https://immigrationcourtside.com/2023/09/27/🇺🇸⚖%EF%B8%8F🗽🧑⚖%EF%B8%8F👨🏾⚖%EF%B8%8F-attention-ndpa-better-courts-mean-a-better-america-fr/.

🇺🇸 Due Process Forever!

PWS

09-25-23

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

Dan Kowalski reports for LexisNexis Immigration Community:

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

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

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

[Hats off to Henry Zhang!]

 

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

cell/text/Signal (512) 826-0323

@dkbib on Twitter

dan@cenizo.com

Free Daily Blog: www.bibdaily.com

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

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

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

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

🇺🇸 Due Process Forever!

PWS

09-13-23

🗽⚖️🇺🇸⚔️🛡 ROUND TABLE (THANKS TO WILMER CUTLER PRO BONO) JOINS OTHER NGOS IN URGING SUPREMES TO PRESERVE MEANINGFUL JUDICIAL REVIEW FOR CANCELLATION!  (Wilkinson v. Garland) — Rae Ann Varona Reports for Law360:

Rae Ann Varona
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:

Ex-Immigration Judges Back Trinidadian Man Before Justices – Law360

1718000-1718295-former eoir judges

1718000-1718295-domestic violence orgs

1718000-1718295-aila

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

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!

🇺🇸Due Process Forever!

PWS

09-08-23

🤯DOUBLE FAULT (NOT @ THE U.S. OPEN): BIA Screws Up Credibility (2d) & CIMT (9th)

Double Fault
Double faults are the bane of tennis pros, but all in a day’s work for the “semi pros” at the BIA.
PHOTO: YouTube

Dan Kowalski reports for LexisNexis Immigration Community:

CA2 on Credibility: Pomavilla-Zaruma v. Garland

https://www.ca2.uscourts.gov/decisions/isysquery/79e67d72-5394-48f3-a31d-354db6bb388e/1/doc/20-3230_opn.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca2-on-credibility-pomavilla-zaruma-v-garland

“Petitioner applied for asylum, withholding of removal, and protection under the Convention Against Torture. An immigration judge found Petitioner not credible and denied her application, relying in part on inconsistencies between Petitioner’s statements during a border interview and later testimony regarding her fear of persecution. However, the immigration judge failed to consider various factors that may have affected the reliability of the border interview record. Petitioner claims that she was frightened during the interview because a border patrol officer hit her and yelled at her upon her arrival to the United States. Petitioner may also have been reluctant to reveal information about persecution because authorities in her home country were allegedly unwilling to help her due to her indigenous status. Moreover, the questions asked during Petitioner’s border interview generally were not designed to elicit the details of an asylum claim. In Ramsameachire v. Ashcroft, 357 F.3d 169 (2d Cir. 2004), we cautioned immigration judges to consider these factors and others before relying on a border interview to find an asylum applicant not credible. Consistent with Ramsameachire and subsequent precedent, we hold that immigration judges are required to take such precautions, provided the record indicates that the Ramsameachire factors may be implicated. Accordingly, we GRANT the petition for review in part, VACATE the BIA’s decision, and REMAND the case for further proceedings consistent with this opinion.”

[Hats off to Reuben S. Kerben!]

 

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

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

CA9 (2-1) on CIMT, J-G-P-: Flores-Vasquez v. Garland

https://cdn.ca9.uscourts.gov/datastore/opinions/2023/08/31/20-73447.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca9-2-1-on-cimt-j-g-p–flores-vasquez-v-garland

“Jose Luis Flores-Vasquez (“Flores-Vasquez”), a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal. He argues that the BIA erred in finding that his prior menacing conviction under Oregon Revised Statute § 163.190 constitutes a crime involving moral turpitude (“CIMT”), rendering him ineligible for cancellation of removal. We agree and grant this portion of the petition. … Here, … Matter of J-G-P- does not purport to reassess longstanding BIA and Ninth Circuit precedent concerning simple assault offenses, and because it misapplied that precedent, its conclusion is unreasonable. See id. PETITION FOR REVIEW GRANTED; REMANDED.”

[Hats off to Jonathan C. Gonzales!]

 

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

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

The problems continue for a “court” system lacking the necessary leadership, expertise, and due process focus!

🇺🇸 Due Process Forever!

PWS

09-05-23

🤯 IMMIGRATION BUNGLES CONTINUE FOR GARLAND’S DOJ! 

Alfred E. Neumann
Has Alfred E. Neumann been “reborn” as Judge 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?” Failure doesn’t seem to bother Garland. Maybe it should!  
PHOTO: Wikipedia Commons

Dan Kowalski reports from LexisNexis Immigration community on the latest screwups from the Article IIIs:

1) Burden of proof  (9th Cir.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2023/08/08/20-71977.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca9-on-burden-of-proof-fonseca-fonseca-v-garland

“Mario Fonseca-Fonseca, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) denial of his motion to reopen. Fonseca-Fonseca sought to reopen his immigration proceedings to apply for cancellation of removal. The BIA found that he failed to establish prima facie eligibility for cancellation of removal because he did not submit new evidence that would likely change the result in his case. The parties disagree on a threshold issue—whether the BIA applied the correct burden of proof. … Today, we clarify that prima facie eligibility for relief requires only a threshold showing of eligibility—a reasonable likelihood that the petitioner would prevail on the merits if the motion to reopen were granted. As the BIA previously explained, a noncitizen “demonstrates prima facie eligibility for relief where the evidence reveals a reasonable likelihood that the statutory requirements for relief have been satisfied.” In re S-V-, 22 I. & N. Dec. 1306, 1308 (B.I.A. 2000) (en banc). Because the BIA applied the wrong standard in denying Fonseca-Fonseca’s motion to reopen, we remand to the agency to adjudicate his motions under the proper standard.”

[Hats off to Andrew J. S. Newcomb and Elias Mendoza!]

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

2) CIMT (11th Cir.)

https://media.ca11.uscourts.gov/opinions/pub/files/202112709.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca11-on-gmc-cimt-categorical-approach-usa-v-lopez

“This appeal requires us to decide how to apply the categorical approach to a conspiracy crime—a question of first impression in our Circuit. The United States seeks to revoke Lisette Lopez’s naturalization on the ground that she committed a crime of moral turpitude within five years of applying for citizenship and willfully concealed or misrepresented during the application process the fact that she had committed a crime. The district court granted judgment on the pleadings in favor of the government on the ground that Lopez had committed a crime of moral turpitude during the statutory period. Because the crime to which Lopez pleaded guilty—conspiring to launder money—did not categorically involve moral turpitude, we reverse and remand for further proceedings consistent with this decision.”

[Hats way off to the indefatigable Matthew Hoppock!  An audio recording of the oral argument is here.]

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3) Sue sponte reopening (5th Cir)

https://www.ca5.uscourts.gov/opinions/unpub/22/22-60336.0.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca1-on-bia-sua-sponte-reopening-authority-mancia-v-garland

“Mancia would like to have her removal proceedings reopened so that her request for suspension of deportation can be adjudicated according to the still-extant substantive NACARA standards. … She contends that nothing in NACARA limits the Board’s general discretionary power to reopen sua sponte a case in which it has rendered a decision. Indeed, that inherent discretion is codified. See 8 C.F.R. § 1003.2(a). So, she reasons, even though the special and more petitioner-friendly reopening avenue of section 203(c) closed to her in 1998, there is no reason why she cannot ask the Board to grant reopening under its discretionary authority, subject to all the limits that otherwise apply to that authority. … We agree with Mancia. The Board’s reliance on 8 C.F.R. § 1003.43(h) — requiring filing of section 203(c) reopening requests with the Immigration Court — is misplaced because that requirement only applies to “any motion to reopen filed pursuant to the special rules of section 309(g) of IIRIRA, as amended by section 203(c) of NACARA.” See 8 C.F.R. § 1003.43(h)(1). Mancia’s motion to reopen is no such motion. And nothing in NACARA requires those seeking relief under its provisions to do so by filing a section 203(c) motion. The government points to no statute, rule, or precedent to the contrary. And we see no reason why NACARA should be read as implicitly divesting the Board of its discretion to sua sponte reopen a proceeding. … For the foregoing reasons, we grant Mancia’s petition by vacating the Board’s rejection of her motion to reopen her removal proceedings pursuant to the Board’s sua sponte authority and remanding for further consideration of that motion consistent with this opinion.”

[Hats off to Margaret “Meg” Moran!]

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Unnecessary mistakes such as this, including ones like USA v. Lopez, above, which carry over into naturalization and other areas, could largely be avoided if Garland heeded expert advice and appointed a BIA of all expert judges. That would be those with universally respected comprehensive knowledge of immigration and human rights, an unswerving commitment to due process, and a demonstrated focus on fair results — NOT the current “any reason to deny, let’s just go with the DHS flow” attitude that infects all too much of the BIA’s decision-making these days.

There is also some irresponsible performance going on at OIL where they are defending flawed results that expert advocates would or should know are unjust and in many cases just flat out wrong or misguided! 

The above things are supposed to be “easy fixes” for Dem Administrations. Instead, the EOIR/DOJ continues to a large extent as it did under Trump — with serious adverse human, legal, and future consequences for American democracy.

If you can’t or won’t fix that which you control, what good are you? That’s the question that Dems should be asking about Garland’s indifferent performance on human rights, racial justice, and immigration — all inextricably related whether he and his lieutenants want to admit it or not!

🇺🇸 Due Process Forever!

PWS

08-09-23

⚖️🤯 UNJUSTIFIED! — Federal Judge Charges USG $22,601 For DHS’s Scofflaw Actions & DOJ’s Mindless “Defense Of The Indefensible” In Colorado Detention Case! — Wanton Cruelty & Stubborn Stupidity Cost In More Ways Than One!

Dan Kowalski reports for LexusNexus Immigration Community: 

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/habeas-eaja-fee-victory-in-colorado-viruel-arias-v-choate

https://storage.courtlistener.com/recap/gov.uscourts.cod.217942/gov.uscourts.cod.217942.16.0.pdf

https://storage.courtlistener.com/recap/gov.uscourts.cod.217942/gov.uscourts.cod.217942.28.0.pdf

Michael Karlik, Colorado Politics, Aug. 2, 2023

“A federal judge has determined the government was unjustified in its fight to keep a woman locked up in an Aurora immigrant detention center while her deportation case proceeded.  U.S. District Court Judge Charlotte N. Sweeney ordered the federal government last September to hold a hearing to determine whether Brenda Viruel Arias should be released from custody. Sweeney found the circumstances of Viruel Arias’ 14-month confinement required a bond hearing to avoid infringing on her constitutional right to due process.  Shortly afterward, an immigration judge permitted Viruel Arias’ release after the government failed to prove she should remain behind bars.  Viruel Arias’ lawyers then requested $22,601 in attorney fees from the government. Under federal law, victorious parties in civil cases against the government may receive attorney fees if, among other things, the government’s position was not “substantially justified.”  On July 12, Sweeny agreed the government was not substantially justified in resisting a release hearing for Viruel Arias. In recent years, she observed, federal judges in Colorado have been sympathetic to non-citizens’ claims of unconstitutional confinement where the detention has exceeded one year. The government, as a party those cases, was aware of the judiciary’s attitude toward prolonged detention.  “(T)hey do not justify why they did not follow a clear legal trend,” Sweeney wrote.”

[Hats off to Conor Gleason and Laura Lunn!]

Connor Gleason, EsquireSenior Staff Attorney, Detention Program Rocky Mountain Imm Migrant Advocacy Network ("RIMAN") PHOTO: RIMAN
Connor Gleason, Esquire
Senior Staff Attorney, Detention Program
Rocky Mountain Imm
Laura Lunn, Esquire
Laura Lunn, Esquire
Director of Advocacy & Litigation
Rocky Mountain Immigrant Advocacy Network (“RMIAN”)
PHOTO: RMIAN

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RMIAN is “on a roll” these days. See, e.g., https://immigrationcourtside.com/wp-admin/post.php?post=34101&action=edit.

Garland’s DOJ, “not so much.” 

Here’s my favorite quote from Judge Sweeney’s decision: “At bottom, Respondents were not substantially justified in their pre-litigation and litigation practices because they disregarded a clear legal trend in the District and their own agency policies in the underlying action.”

Similar to the Trump Administration, the Biden Administration is wasting taxpayer money on cruel, unnecessary, expensive, illegal detention, and then squandering even more money on the arguably frivolous, and clearly mindless, defense thereof! Somebody should be asking Garland why?

🇺🇸Due Process Forever! 

PWS

08-05-23

🌊 TSUNAMI OF BAD ☠️ BIA DECISIONS HITS GARLAND’S DOJ! — WRONG On Nexus (4th, 2-1); WRONG On NTA (4th, 2-1); WRONG On Agfel (8th); WRONG On Past Political Persecution In Cameroon (5th); WRONG On Experts (1st)!

Tsunami
Tsunami of bad BIA decisions hits as Garland ignores needed housecleaning and due process reforms @ EOIR!
Creative Commons License

Dan Kowalski reports for LexisNexis Immigration Community:

1. NEXUS

CA4 on Nexus, Religious Persecution: Chicas-Machado v. Garland

https://www.ca4.uscourts.gov/opinions/211381.P.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca4-on-nexus-religious-persecution-chicas-machado-v-garland

“In sum, the BIA erred in finding that Chicas-Machado was not a refugee under the INA due to a lack of nexus to a protected ground, religion. Chicas-Machado demonstrated past persecution on account of religion, and is therefore entitled to the presumption of a well-founded fear of future persecution. See Qiao Hua Li, 405 F.3d at 176-77. Recognizing the BIA’s error, we grant the petition for review and remand the case for further proceedings. Upon remand, the BIA must determine whether the Government can rebut the presumption of a well-founded fear of future persecution. 8 If the BIA concludes that Chicas-Machado is eligible for asylum on remand, it should reconsider her withholding of removal claim. See Sorto-Guzman, 42 F.4th at 450. We decline to reach all other issues raised on appeal as to her asylum and withholding of removal claims, and direct the BIA to reevaluate those claims following its reconsideration of Chicas-Machado’s asylum application. See Arita-Deras v. Wilkinson, 990 F.3d 350, 361 n.10 (4th Cir. 2021) (declining to reach the merits of withholding of removal appeal after finding error in the BIA’s asylum analysis).”

[Hats off to Daniel Thomann!  Listen to the oral argument here.]

Daniel Thomann ESQ
Daniel Thomann
ESQ

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

cell/text/Signal (512) 826-0323

@dkbib on Twitter

dan@cenizo.com

Free Daily Blog: www.bibdaily.comhttps://www.ca4.uscourts.gov/opinions/211381.P.pdf

2. NTA

CA4 on Defective NTA: Lazo-Gavidia v. Garland

https://www.ca4.uscourts.gov/opinions/202306.P.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca4-on-defective-nta-lazo-gavidia-v-garland

“This petition raises important questions about proper notice in removal proceedings. Federal immigration law mandates that the government provide a noncitizen with a written notice to appear that contains certain critical details about her removal hearing, including the “time and place” of the proceedings. In a pair of recent decisions, the Supreme Court has clarified that the notice to appear must be a single document containing all statutorily required information. See Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021); Pereira v. Sessions, 138 S. Ct. 2105 (2018). Petitioners Azucena Aracely Lazo-Gavidia and her minor son were ordered removed in absentia. The immigration judge denied their motion to reopen the removal proceedings and the Board of Immigration Appeals dismissed their appeal. Because Lazo-Gavidia and her son received defective notices to appear, we grant their petition, vacate the Board’s order dismissing their appeal, and remand for further proceedings.”

[Hats off to Glenn Fogle!  Listen to the oral argument here.]

Glenn Fogle ESQ
Glenn Fogle ESQ

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

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@dkbib on Twitter

dan@cenizo.com

Free Daily Blog: www.bibdaily.com

3. AgFel

CA8 on Shoplifting: Thok v. Garland

http://media.ca8.uscourts.gov/opndir/23/07/222508P.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca8-on-shoplifting-thok-v-garland

“Because an offender can be convicted under Nebraska’s shoplifting statute when he acts with an intent not encompassed by a generic theft offense, we hold that the statute sweeps more broadly than the generic federal offense. Accordingly, the BIA erred in finding that Thok was removable for having committed a theft offense—and, thus, an aggravated felony—based upon his Nebraska shoplifting convictions. … For the foregoing reasons, we grant the petition for review, vacate the BIA’s order, and remand the matter to the BIA for further proceedings consistent with this decision.”

[Hats off to Jaime Arango!  Listen to the oral argument here.]

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

4. Past Political Persecution In Cameroon

Unpub. CA5 Victory: Naah v. Garland

https://www.ca5.uscourts.gov/opinions/unpub/20/20-61059.0.pdf

“Mercy Naah, a native of Cameroon, was charged as removable from the United States. She applied for asylum, withholding of removal, and protection under the Convention Against Torture. Naah demonstrated that she is unable or unwilling to return to Cameroon because of past persecution on account of her political opinion. Accordingly, we grant her petition for review as to her asylum and withholding of removal claims and remand for proceedings consistent with this opinion.”

[Hats off to Danielle Beach-Oswald!]

Danielle Beach-Oswald ESQ
Danielle Beach-Oswald ESQ

 

 

Hon. “Sir Jeffrey” Chase reports for the Round Table 🛡️⚔️:

5. Experts

Unpublished 1st Cir. Victory [Experts]

[T]o keep it brief, we were on the winning side in an unpublished 1st Cir. decision issued today in which the IJ and BIA wrongly gave little weight to an country expert’s opinion on the risk petitioner faced in a CAT case. Decision attached. The Round Table filed an amicus brief in this one. Another great win for SangYeob Kim, Gilles Bissonnette and the ACLU of New Hampshire!

More to follow. We continue to make a difference!

Best, Jeff

 

I have just learned that counsel is filing a motion to publish. There is good language regarding the evidentiary weight of one qualified as an expert who testifies credibly. The decision points out that an expert need not have personal knowledge of the facts underlying their opinion, as long as such opinion is based on sufficient facts or data;” that “An expert cannot be “undermined by his reliance on facts . . . that have not been disputed;” and that where an IJ makes factual findings not consistent with the expert’s opinion, it is important for the IJ to explain the reasons behind those findings.

1st on Experts

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

Why do Dems routinely shoot themselves in the foot on immigration while driving a wedge between Dems in power and the immigration/social justice advocates who helped them get there?

In each of the 4th Circuit cases here, our Dem AG aligned himself with restrictionist positions advocated by dissenting Bush II and Trump appointees, while eschewing the far better-reasoned, more practical approaches advocated by expert advocates and adopted by the jurists in the majority who are committed to due process. 

As the 4th Circuit majority in Chicas-Machado cogently points out, the BIA’s “excessively narrow reading” of nexus conflicts with both the statutory language and practical considerations regarding the motivation of persecutors (not to mention riding roughshod over existing, binding Circuit precedent). The BIA has a long and troubling history of ignoring “mixed motive” to deny asylum.

Yet, instead of improving under Dems, the BIA’s abuse of nexus to wrongfully disqualify qualified refugees from protection has continued to metastasize under Garland! It’s all part of the anti-immigrant, “any reason to deny” culture at EOIR, promoted by Sessions and Barr and not effectively addressed by Garland.

Happy to see another Round Table victory on use of experts. But, the 1st Circuit should have published this instructive decision. Hopefully, they now will!

As we know, the BIA’s systemic mishandling of experts is a chronic problem, particularly as the BIA intentionally overcomplicates the law, as a “deterrent,” so experts are almost a requirement for success. (Even though it is well-known that many asylum applicants have difficulty just getting competent pro bono lawyers to represent them, let alone the services of “pro bono experts.”). Every example helps expose the BIA’s professional misconduct, for which Garland and his DOJ leadership have shown an unusual and disturbing tolerance.

If you don’t bring an expert, they deny for failure to sustain your B/P! If you do bring an expert, they minimize, misconstrue, or ignore their testimony!

“Catch 22” — the applicant loses either way!

Experts are also important because it’s an area where the Article IIIs’ experience with experts in civil litigation far exceeds the BIA’s. Therefore, they are apt to recognize the BIA’s sharp divergence from the weight and respect ordinarily given to experts in civil litigation. Hence, we have had substantial success with the Circuits in challenging the BIA’s continuing, inappropriately dismissive, treatment of experts.

The BIA routinely uses sloppy, often internally inconsistent, “boilerplate” in their decisions. Yet, they somehow find time to “nitpick” expert testimony looking for every minor or insignificant “omission” or “discrepancy” to discredit the expert! What a disgrace!

Finally, on Naah v. Garland, a special “shout out” to long-time NDPA stalwart and role model Danielle Beach-Oswald on her victory in a Cameroonian political persecution case in the 5th Circuit. As the decision reflects, asylum victories on non-procedural issues are hard to come by in the 5th. Danielle was a “Legacy Arlington Immigration Court regular” during my time on the bench. This just further cements her status as “one of the best in the business!”

Congrats, Danielle, and thanks for all you do!

Think how much better this system would function with a BIA of real subject-matter experts focused on due process and fundamental fairness — rather than helping out their “partners” at DHS enforcement and protecting their careers in the process! And, what if we also had a Dem AG focused on due process for immigrants in “his” courts, rather than being asleep at the switch and complicit in some of the worst, anti immigrant, biased, backlog building “jurisprudence” rolled out by the Federal “justice” system! 

What if once in office, Dems actually courageously stood up for the immigrants, advocates, and values they claim to represent during elections?

🇺🇸 Due Process Forever!

PWS

07-14-23

🤯🏴‍☠️ BIA BLUNDERS BUILD BACKLOG! — 4th Cir. (2-1) & 2d Cir. Continue To Call Out BIA’s Lawless, Anti-Immigrant Behavior In Dem Administration!  — PLUS, BONUS COVERAGE — Commentary From Michelle Mendez & Me!😎

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

Dan Kowalski reports for LexisNexis Immigration Community:

https://www.ca4.uscourts.gov/opinions/221463.P.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca4-on-psg-political-opinion-and-cat-santos-garcia-v-garland

“Petitioner Christian Alberto Santos Garcia, a native and citizen of El Salvador, has twice travelled unlawfully into the United States — first in 2012, and again in 2016. In both instances, Garcia fled threats to his life and attacks carried out against him by the 18th Street Gang and the Salvadoran police. After seeking protection from removal before an immigration judge (the “IJ”) in 2016, Garcia was afforded relief — in the form of asylum, withholding of removal, and protection under the Convention Against Torture (the “CAT”) — by three separate IJ rulings. On each occasion, the Board of Immigration Appeals (the “BIA”) reversed the IJ rulings. Garcia, for his part, was removed to El Salvador in May 2022, and has awaited further developments in these proceedings from his home country. In this appeal, Garcia challenges and seeks reversal of three rulings made by the BIA — those being: (1) that the “particular social group” relied upon in connection with Garcia’s application for withholding of removal is not legally cognizable; (2) that Garcia was not persecuted in El Salvador on account of his political opinions; and (3) that Garcia failed to establish eligibility for CAT protection. As explained herein, we grant Garcia’s petition for review and reverse the BIA rulings in part, affirm them in part, and vacate them in part. We otherwise remand to the BIA for such further proceedings as may be appropriate.”

[Hats way off to pro bono publico counsel Jessica L. Wagner!]

Jessica Wagner ESQUIRE
Jessica Wagner
Associate
Gibson Dunn
D.C. Office
PHOTO: Gibson Dunn

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

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

https://www.ca2.uscourts.gov/decisions/isysquery/05b1e9ea-e5da-493a-8b94-45bc8e3d4757/3/doc/21-6043_opn.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca2-on-iac-prejudice-hardship-continuance-paucar-v-garland

“Petitioner Juan Pablo Paucar petitions for review of a January 22, 2021 Board of Immigration Appeals (“BIA”) decision (1) affirming an Immigration Judge’s denial of his application for cancellation of removal and (2) denying his motion to remand. The BIA rejected Paucar’s ineffective assistance of counsel claim, declined to remand for consideration of additional hardship relating to his cancellation application, and declined to remand to await adjudication of his U visa application. Paucar argues that the BIA (1) applied an incorrect standard when reviewing his ineffective assistance of counsel claim, (2) overlooked and mischaracterized his new hardship evidence, and (3) failed to follow precedent when denying his request for remand while awaiting the adjudication of his U visa application. We are persuaded by Paucar’s arguments. Accordingly, we GRANT Paucar’s petition for review, VACATE the BIA’s decision, and REMAND for further proceedings consistent with this opinion.”

[Hats off to Prof. Lindsay Nash and Paige Austin!]

Lindsay Nash
Lindsay Nash
Associate Professor of Law
Co-Director, Kathryn O. Greenberg Immigration Justice Clinic
Cardozo Law
PHOTO: Cardozo Law

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

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

In Santos-Garcia v. Garland, the BIA’s 6-year quest to wrongfully deny protection to Santos has been thwarted, for now. But, the matter remains far from finally resolved, even though an IJ has now properly granted Santos relief three separate times, only to be wrongly reversed by the BIA on each occasion!

Rather than insuring that individual justice is done, the BIA has acted to promote injustice, create needless delay, and demoralize IJ’s who are getting it right! In the meantime, the respondent has been removed to the country where he has a well-founded fear of persecution to await his fate. This is because the 4th Circuit denied a stay they should routinely have granted in an exercise of truly horrendous judicial misjudgment.

Now, the court majority fecklessly pontificates about the need for timely resolution (you’ve got to be kidding) while hinting, but not requiring, that the “Gang That Can’t Shoot Straight” should return the respondent now. Don’t hold your breath!

Here are three of my favorite quotes from Judge King’s majority opinion in Santos Garcia v. Garland.

Put simply, the BIA declined to “interact seriously” with the record before it in reviewing Garcia’s claim for CAT protection, and its failure in that regard requires a remand.

Should we not expect a supposed “expert tribunal” like the BIA should be to “seriously interact” with the record in life-or-death cases? Why aren’t Dems in Congress and everywhere else “all over Garland like a cheap suit” to stop this kind of judicial misbehavior in his “wholly owned courts?”

In closing, we recognize that Garcia’s removal proceedings have languished before the IJ and the BIA — and now this Court — for more than six years, leaving him in limbo and presently in harm’s way in El Salvador. We are also mindful that Garcia was only 15 years old when he sought to protect his cousin from the 18th Street Gang’s advances, setting off more than a decade of hardship and uncertainty. With that, we emphasize the “strong public interest in bringing [this] litigation to a close . . . promptly.” See Hussain v. Gonzales, 477 F.3d 153, 158 (4th Cir. 2007). And although we do not direct the affirmative award of any relief, we acknowledge the compelling case for protection that Garcia has made. If, on remand, the BIA affirms either the IJ’s award of withholding of removal or the award of CAT relief, the DHS and the Attorney General should swiftly “facilitate [Garcia’s] return to the United States” from El Salvador. See Ramirez v. Sessions, 887 F.3d 693, 706 (4th Cir. 2018) (directing the government to facilitate previously removed petitioner’s return to the United States pursuant to an Immigration and Customs Enforcement Policy Directive). Moreover, if the BIA determines that Garcia’s “presence 24 is necessary for continued administrative removal proceedings” on remand, the authorities should see to his prompt return. Id.

So, after six years bouncing around the system and three separate grants of asylum by an Immigration Judge, the 4th Circuit essentially “begs” the BIA to get it right this time! This is after the court itself curiously denied the respondent’s application for stay notwithstanding the rather obvious risk of irreparable harm (e.g., death, torture) and the equally obvious substance of his timely filed appeal.

What a way to run a “justice system” (or, in this case, not)! Both the Executive and the Judiciary should be totally embarrassed by their gross mishandling of this case! But, I see resolve from neither Branch (nor the ever-absent Legislature) to put an end to this systemic mockery of due process, fundamental fairness, and simple common sense!

Here, discovering the BIA’s error in rejecting Garcia’s proposed social group of “young male family members of his cousin Emily” is no herculean task. Social groups based on family ties have been consistently approved by this Court as providing a sound basis for asylum or withholding of removal applications. See, e.g., Salgado-Sosa, 882 F.3d at 457; Hernandez-Avalos v. Lynch, 784 F.3d 944, 949 (4th Cir. 2015); Cedillos-Cedillos v. Barr, 962 F.3d 817, 824 (4th Cir. 2020). Indeed, our pivotal 2011 decision on the matter — Crespin-Valladares v. Holder — recognized in no uncertain terms that “the family provides a prototypical example of a particular social group.” See 632 F.3d at 125. In tossing out Garcia’s proposed social group in March 2021, however, the BIA largely disregarded our precedent, providing no citation to or discussion of Crespin-Valladares. The BIA instead relied chiefly on its own then-existing precedent, set forth in the Attorney General’s 2019 L-E-A- II decision. As described above, L-E-A- II — which was vacated by the Attorney General in June 2021 and thus “lacks legal force” — “conflicted with [this Court’s] well-established precedent” recognizing families as cognizable social groups. See Perez Vasquez v. Garland, 4 F.4th 213, 227 n.11 (4th Cir. 2021). Surprisingly, the BIA paid little mind to L-E-A- II’s vacatur in its Reconsideration Order of 2022, doubling down on its earlier “particular social group” ruling and again inexplicably declining to apply Crespin-Valladares and its progeny.7

Notably, the “rule of Crespin-Valledares” — my case where the BIA erroneously reversed me — continues to have an impact! A dozen years post-Crespin and the BIA is still getting it wrong!  Why are these guys still on the appellate bench, setting negative precedents and ignoring favorable precedents? In a Dem Administration? Seriously!

Michelle N. Mendez
Michelle N. Mendez, ESQ
Director of Legal Resources and Training
National Immigration Project, National Lawyers Guild
PHOTO: NIPNLG

My friend Michelle Mendez, Director of Legal Resources and Training over at National Immigration Project offered some commentary on the Second Circuit’s decision in Paucar v. Garland.

Congratulations and thank you for your superb work, Lindsay! This case offers so much and seems like the CA2 delivered.

Here are a couple of excerpts from the decision that stood out to me:

  • “In a January 14, 2020 written decision, the BIA dismissed Paucar’s appeal and denied his motion to reopen and remand. Three months later—after Paucar filed a petition to review the BIA’s decision in this Court—the BIA sua sponte reinstated Paucar’s appeal and motion, noting that it had not “consider[ed] all of the evidence submitted by [Paucar].” Id. at 124.” [Do we know why the BIA sua sponte reinstated the appeal and motion?] LINDSAY NASH RESPONDS: “The BIA only sua sponte reopened the appeal and motion because Paige Austin (co-counsel extraordinaire, copied here) filed a PFR and identified the missing evidence early on, prompting OIL to agree to a remand.”
  • “Finally, the BIA concluded that remand to await the adjudication of Paucar’s U visa petition was unnecessary because Paucar could request a stay of removal from USCIS.” [Does anyone know what the BIA was referencing here? Later on the decision says DHS and not USCIS so perhaps it is a typo.] LINDSAY NASH RESPONDS:  “I think that the reference to USCIS that you flag was a typo and that it should have said DHS.”
  • “We conclude that the BIA should have applied the Sanchez Sosa factors in considering Paucar’s motion to remand as it pertains to his U visa or explained its reasoning for not doing so. [This is the first time that the CA2 answers the question of whether Sanchez Sosa applies to motions to remand or reopen filed during the pendency of an appeal where the noncitizen did not previously request such a continuance before the IJ].”

There is a great discussion on the BIA improperly applying Coelho (which they love to throw around in correctly) to the prejudice assessment and a paragraph discussing how the CA2 and other courts of appeals view unpublished BIA decisions.

Again, really great work and outcome! Thanks for sharing with all of us, Dan!

For a case distinguishing Coelho and applying a “reasonable likelihood of success” standard to a MTR, see Matter of L-O-G-, 21 I&N Dec. 436 (BIA 1996), written by me! The BIA ignores it or misapplies it in many cases. But, it’s still “good law!” Just another instance in which the BIA evades “older” precedents that could produce favorable outcomes for respondents!

In this case the IJ denied the respondent’s applications and ordered removal in May 2018, five years ago. Nobody contests that the respondent was ineffectively represented at that time.

Through new pro bono counsel, respondent Paucar filed a timely appeal with the BIA. Less than two months following the IJ’s decision, new counsel filed a copiously documented motion to the BIA to remand for a new hearing because of the ineffective representation.

Rather than promptly granting that motion for a new hearing, the BIA set in motion five years of dilatory effort on their part to avoid providing a hearing.  Obviously, several new merits hearings could have been completed during the time occupied by the BIA’s anti-immigrant antics!

Along the way, according to the Second Circuit, the BIA “improperly imposed a heightened standard,” “erred by discounting the impact of counsel’s ineffectiveness,” “improperly relied] on the IJ’s tainted findings,” “overlooked and mischaracterized the record evidence,” “erred by overlooking or mischaracterizing evidence,” “overlooked and mischaracterized material evidence,” and failed, without explanation, “to follow its own precedent.” What else could they have screwed up? The file number?

This would be highly unacceptable performance by ANY tribunal, let alone one entrusted with making life or death decisions about human lives and whose decisions in some instances have been unwisely insulated from effective judicial review by Congress. Individuals appearing before EOIR deserve better!  American justice deserves better! How long will AG Garland continue to get away with failing to “clean house” at America’s most dysfunctional court system and bring order, due process, fundamental fairness, legal expertise, and judicial professionalism to this long-overlooked, yet absolutely essential, foundation of our entire U.S. justice system!

Wasting time and resources looking for bogus ways to deny that which better, more expert, fairer judges could easily grant his had a huge negative impact on the EOIR backlog and is a driver of legal dysfunction throughout the immigration bureaucracy, and indeed throughout our entire legal system, all the way up to and including the Supremes! 

Start by fixing “that within your control!” That’s a simple message that Dems, unfortunately, don’t seem to get when it comes to immigration, human rights, and racial justice in America!   

🇺🇸 Due Process Forever!

PWS

07-14-24