"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.
Lisa Dornell, a former US immigration judge, says she could no longer serve under President Donald Trump after his administration interfered with immigration courts. #CNN #News
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Here are the head notes from two new BIA decisions distinguishing Pereira:
https://www.justice.gov/eoir/page/file/1164976/download
Matter of Lourdes Suyapa PENA-MEJIA, Respondent
27 I&N Dec. 546 (BIA 2019)
Decided May 22, 2019
U.S. Department of Justice Executive Office for Immigration Review Board of Immigration AppealsNeither rescission of an in absentia order of removal nor termination of the proceedings is required where an alien did not appear at a scheduled hearing after being served with a notice to appear that did not specify the time and place of the initial removal hearing, so long as a subsequent notice of hearing specifying that information was properly sent to the alien. Pereira v. Sessions, 138 S. Ct. 2105 (2018), distinguished.
FOR RESPONDENT: Daniel A. Meyer, Esquire, Jackson Heights, New York
FOR THE DEPARTMENT OF HOMELAND SECURITY: Jonathan Graham, Assistant Chief Counsel
BEFORE: Board Panel: GUENDELSBERGER, GRANT, and KENDALL CLARK, Board Members
GRANT, Board Member, with the opinion
https://www.justice.gov/eoir/page/file/1164981/download
Matter of Renata MIRANDA-CORDIERO, Respondent
27 I&B Dec. 551 (BIA 2019)
Decided May 22, 2019
U.S. Department of Justice Executive Office for Immigration Review Board of Immigration AppealsPursuant to section 240(b)(5)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(b)(5)(B) (2012), neither rescission of an in absentia order of removal nor termination of the proceedings is required where an alien who was served with a notice to appear that did not specify the time and place of the initial removal hearing failed to provide an address where a notice of hearing could be sent. Pereira v. Sessions, 138 S. Ct. 2105 (2018), distinguished.
FOR RESPONDENT: Renee LaRosee, Esquire, Elizabeth, New Jersey
BEFORE: Board Panel: GUENDELSBERGER, GRANT, and KENDALL CLARK, Board Members
GRANT, Board Member, with the opinion
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But here’s some better news from a split 9th Circuit:
Isaias Lorenzo Lopez v. William P. Barr, 9th Cir., 05-22-19, published
Before: Dorothy W. Nelson and Consuelo M. Callahan,
Circuit Judges, and Edward R. Korman,* District Judge. Opinion by Judge Korman;
Dissent by Judge Callahan
* The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation.
SUMMARY BY COURT STAFF:
SUMMARY** Immigration
Granting Isaias Lorenzo Lopez’s petition for review of a decision of the Board of Immigration Appeals, the panel held that a Notice to Appear that is defective under Pereira v. Sessions, 138 S. Ct. 2105 (2018), cannot be cured by a subsequent Notice of Hearing and therefore does not terminate the residence period required for cancellation of removal.
Lorenzo sought cancellation of removal, a form of relief from removal that requires that an applicant must, among other requirements, reside in the United States continuously for seven years after having been admitted in any status. However, under the “stop-time” rule, as relevant here, the service of a Notice to Appear under 8 U.S.C. § 1229(a) terminates an alien’s residence. In Lorenzo’s case, an immigration judge and the BIA found him ineligible for cancellation because his March 2008 Notice to Appear terminated his residence period before he had accrued the requisite seven years.
In Pereira v. Sessions, 138 S. Ct. 2105 (2018), the Supreme Court held that a Notice to Appear, as defined in 8 U.S.C. § 1229(a), must contain the time and place at which removal proceedings will be held to trigger the stop-time rule. The panel concluded that Lorenzo’s Notice to Appear
** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.LORENZO LOPEZ V. BARR 3
did not terminate his residence because it lacked time-and- place information.
However, because Lorenzo also received a subsequent Notice of Hearing that advised him of the time and place of his proceedings, the Attorney General argued that the Notice of Hearing cured the defective Notice to Appear and triggered the stop-time rule. The Attorney General relied on Popa v. Holder, 571 F.3d 890 (9th Cir. 2009), which held that a Notice to Appear that fails to include the date and time of an alien’s deportation hearing, but that states that a date and time will be set later, is not defective so long as a notice of the hearing is later sent to the alien.
The panel held that a Notice to Appear that is defective under Pereira cannot be cured by a subsequent Notice of Hearing, explaining that the plain language of the statute foreclosed the Attorney General’s argument and that Pereira had effectively overruled Popa.
The panel noted that the BIA reached a conclusion contrary to the panel’s holding in Matter of Mendoza- Hernandez, 27 I. & N. Dec. 520 (BIA 2019) (en banc), where, over a vigorous dissent, a closely divided BIA held that a Notice of Hearing that contains time-and-place information perfects a deficient Notice to Appear and triggers the stop-time rule. However, the panel declined to defer to that conclusion because: (1) the BIA acknowledged that Pereira could be read to reach a different result, and the courts owe no deference to agency interpretations of Supreme Court opinions; (2) the BIA ignored the plain text of the statute; and (3) the BIA relied on cases that cannot be reconciled with Pereira.
Thus, the panel concluded that, because Lorenzo never received a valid Notice to Appear, his residency continued4 LORENZO LOPEZ V. BARR
beyond 2008 and, accordingly, he has resided in the United States for over seven years and is eligible for cancellation of removal.
Dissenting, Judge Callahan wrote that she does not read Pereira as holding that the notice of the time and place must be provided in a single document. Rather, Judge Callahan reads Pereira as allowing the Department of Homeland Security to cure a deficient notice to appear by subsequently providing a noncitizen with actual notice of the time and place of the removal proceedings, with the result that the stop-time rule is triggered upon the noncitizen’s receipt of the supplemental notice.
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Significantly, the Ninth Circuit majority recognized the “vigorous” dissent of Judge John Guendelsberger in Matter of Mendoza-Hernandez, 27 I&N Dec. 520 (BIA 2019), which was joined by Vice Chair Adkins-Blanch and Appellate Immigration Judges Cole, Grant, Creppy, & Kendall Clark. The Ninth Circuit essentially adopted the dissenters’ opinion, quoting at length:
The reasoning of the Supreme Court in Pereira . . . leaves little room for doubt that the Court’s decision requires us to follow the plain language of the Act that the DHS must serve a [8 U.S.C. § 1229(a)(1)] “notice to appear” that includes the date, time, and place of hearing in order to trigger the “stop-time” rule. The Court in Pereira repeatedly emphasized the “plain text” of the “stop- time” rule and left no room for agency gap- filling as to whether an Immigration Court can “complete” or “cure” a putative “notice to appear” by subsequent issuance of a “notice of hearing” that would trigger the “stop-time” rule on the date of that event. Quite simply, . . . a “notice of hearing” is not a “notice to appear” and, therefore, it does not satisfy the requirement that the DHS serve a [Section 1229(a)(1)] “notice to appear” that specifies the date and time of hearing, in order to trigger the “stop-time” rule.
16 LORENZO LOPEZ V. BARR
27 I. & N. Dec. at 540–41 (dissenting opinion) (footnote omitted).
Prior to the “Ashcroft Purge, “ completed in 2003, en banc opinions in precedents and “vigorous dissents” were much more frequent at the BIA. I know, because I frequently was among the dissenters, particularly in the latter days of my BIA career.
Given the more or less “built in pro-Government bias” of an administrative “court” captive within the DOJ, the dissents often contained important alternative viewpoints that sometimes were more in accordance with the law as later interpreted by the “real” Article III Courts upon judicial review. The en banc process also forced every BIA Appellate Immigration Judge to take a public position on important issues.
In that way, it promoted both transparency and accountability, as well as “putting into play” alternative interpretations and results that the majority otherwise would “blow by.” Accordingly, it also promoted more rigorous analysis by the majority.
Ashcroft basically removed the “gang of dissenters” from the BIA while “dumbing it down” by mandating mostly “single member panels,” discouraging en bancs, and supressing dissents. Since that time, the quality of the BIA decisions has suffered, and the positions of most individual BIA judges on most precedent issues has become a “mystery.” Not surprisingly, the BIA jurisprudence post-Ashcroft has become very one-sided in favor of the DHS.
The “vigorous en banc dissent” in Matter of Mendoza-Hernandez was striking to observers as the first one in recent memory. And, clearly it made a difference. The lack of meaningful dissent at the BIA is one of many things that have degraded due process, judicial independence, and decisional quality at EOIR since the “Ashcroft Purge.” Worse yet, Barr’s ludicrous “proposed regulations” would further “dumb down” the BIA process.
The importance of dissents and transparency in a legitimate judicial system can’t be overstated. That’s why we need an independent, Article I U.S. Immigration Court that does not answer to the Attorney General.
PWS
05-28-19
Matter of NEGUSIE, 27 I&N Dec. 347 (BIA 2018)
Here’s the link:
BIA HEADNOTE:
(1) An applicant who is subject to being barred from establishing eligibility for asylum or withholding of removal based on the persecution of others may claim a duress defense, which is limited in nature.
(2) To meet the minimum threshold requirements of the duress defense to the persecutor bar, an applicant must establish by a preponderance of the evidence that (1) he acted under an imminent threat of death or serious bodily injury to himself or others; (2) he reasonably believed that the threatened harm would be carried out unless he acted or refrained from acting; (3) he had no reasonable opportunity to escape or otherwise frustrate the threat; (4) he did not place himself in a situation in which he knew or reasonably should have known that he would likely be forced to act or refrain from acting; and (5) he knew or reasonably should have known that the harm he inflicted was not greater than the threatened harm to himself or others.
BIA PANEL: APPELLATE IMMIGRATION JUDGES GRANT, GREER, MAPPHRUS
OPINION BY: Judge Edward R. Grant
CONCURRING & DISSENTING OPINION: Judge Garry d. Malphrus
KEY QUOTE FROM MAJORITY:
In a decision dated May 31, 2005, an Immigration Judge denied the applicant’s applications for asylum and withholding of removal but granted his request for deferral of removal under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted and opened for signature Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26, 1987; for the United States Apr. 18, 1988) (“Convention Against Torture”). On February 7, 2006, we dismissed the appeals of both the applicant and the Department of Homeland Security (“DHS”).1 This case is now before us on remand pursuant to a decision of the United States Supreme Court in
1 The DHS does not now challenge the applicant’s grant of deferral of removal under the Convention Against Torture.
347
Cite as 27 I&N Dec. 347 (BIA 2018) Interim Decision #3930
Negusie v. Holder, 555 U.S. 511 (2009). Having reviewed the record and the arguments presented by the parties and amici curiae, we will again dismiss the applicant’s appeal.2
We conclude that duress is relevant in determining whether an alien who assisted or otherwise participated in persecution is prevented by the so-called “persecutor bar” from establishing eligibility for asylum and withholding of removal under sections 101(a)(42), 208(b)(2)(A)(i), and 241(b)(3)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. §§ 1101(a)(42), 1158(b)(2)(A)(i), and 1231(b)(3)(B)(i) (2012), and for withholding of removal under the Convention Against Torture pursuant to 8 C.F.R. § 1208.16(c) and (d)(2) (2018).3 In this decision, we set forth a standard for evaluating claims of duress in this context. Applying that standard to the uncontested findings of fact in the record, we conclude that the applicant has not established that he was under duress when he assisted in the persecution of prisoners who were persecuted under his guard in an Eritrean prison camp.
KEY QUOTE FROM DISSENT:
The United States Supreme Court remanded this case for us to make an “initial determination of the statutory interpretation question,” Negusie v. Holder, 555 U.S. 511, 524 (2009), “with respect to whether an alien who
ORDER: The applicant’s appeal is dismissed.
368
Cite as 27 I&N Dec. 347 (BIA 2018) Interim Decision #3930
was coerced to assist in persecution is barred from obtaining asylum in the United States,” id. at 525 (Scalia, J., concurring). The remand directed us to interpret the statute anew based on principles of statutory construction, free of our prior assumption that Fedorenko v. United States, 449 U.S. 490 (1981), definitively resolved this question. The majority decision is artfully drafted, but it does not engage in this analysis. Instead, the majority reads a duress exception into the 1967 United Nations Protocol Relating to the Status of Refugees, opened for signature Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267 (entered into force Oct. 4, 1967; for the United States Nov. 1, 1968) (“Protocol”), and, by extension, the Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102 (“Refugee Act”), that simply does not exist. And it does so essentially by deferring to international expectations of how the Protocol should be interpreted. I cannot agree with this approach.
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PWS
06-29-18
Dan Kowalski reports at LexisNexis Immigration Community (quoting Respondent’s attorney Humza Kuzma):
“We appealed to the BIA, stating that the IJ was ignoring the law of the case and his direct instructions from a higher court. As Hassan noted in his FB post, we included redacted cases from a FOIA request another attorney had conducted, showing the various instances in the past two years where the IJ had been remanded in asylum proceedings. Yesterday, we got the remand, which reconfirmed that the prior rulings in the case were vacated and relying upon them was in judicial error, and instructed the IJ to grant our client a completely new hearing with an open record, and issue a new decision.”
BIA PANEL: Appellate Immigration Judges Guendelsberger, Kendall Clark, Grant
OPINION BY: Judge Edward R. Grant
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Read the full report and the BIA’s unpublished opinion at the link.
PWS
11-11-17
BIA HEADNOTE:
“Entry into a pretrial intervention agreement under Texas law qualifies as a “conviction” for immigration purposes under section 101(a)(48)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(48)(A) (2012), where (1) a respondent admits sufficient facts to warrant a finding of guilt at the time of his entry into the agreement, and (2) a judge authorizes an agreement ordering the respondent to participate in a pretrial intervention program, under which he is required to complete community supervision and community service, pay fees and restitution, and comply with a no-contact order.”
PANEL: BIA APPELLATE IMMIGRATION JUDGES GRANT, PAULEY, MANN
OPINION BY: JUDGE GRANT
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Under the INA state criminal proceedings cannot be “relitigated” in U.S. Immigration Court. States go to great lengths to relieve certain first or minor offenders of the legal consequences of a conviction. But, at that point, the INA ditches out state determinations and imposes its own broad definition of “conviction.” Rule: Whatever is necessary to screw the migrant!
PWS
09-07-17
