"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.
PANEL: SMITH, Chief Judge, HARDIMAN, and KRAUSE, Circuit Judges
OPINION BY: Judge KRAUSE
KEY QUOTE:
To determine if a noncitizen convicted of a state offense is subject to immigration consequences prescribed in federal law, the Supreme Court has instructed courts to compare whether the elements of the state offense define a crime that is the same as or narrower than the generic federal offense. See Descamps v. United States, 570 U.S. 254, 257 (2013). This
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analysis, which has come to be known as the “categorical approach,” sounds simple in theory but has proven difficult (and often vexing) in practice, necessitating a “modified categorical approach” and generating an evolving jurisprudence around when the categorical or modified categorical approach applies.
That difficulty is borne out in the convoluted history of this case. Here, in what is now Lazaro Javier Larios’s third petition for review from prior reversals, the Board of Immigration Appeals (BIA) applied the categorical approach and held Larios ineligible for cancellation of removal under 8 U.S.C. § 1229b(b)(1) for having been convicted of “a crime involving moral turpitude.” 8 U.S.C. § 1182(a)(2)(A)(i)(I). Because we conclude the crime at issue—New Jersey’s terroristic-threats statute, N.J. Stat. Ann. § 2C:12-3(a)—should have been analyzed under the modified categorical approach, and, under that approach, the particular offense of which Larios was convicted is not a crime involving moral turpitude, we will grant the petition for review.
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Three strikes and you’re out?⚾️
Yes, it’s unnecessarily complicated. That’s mostly Congress’s fault. But, what good is a supposedly “expert tribunal” that can’t correctly resolve a complicated issue after three tries spanning 10 years?
“Immigration law is a field in which fair, accurate factfinding is of critical importance. The need in immigration proceedings for effective attorneys who can competently marshal the evidence on each side is therefore of commensurate importance. Yet aliens—often poor, often non-English speaking—are disproportionately saddled with low-quality counsel, and the consequences can be drastic. This is a case in point. Petitioner Sergio Calderon-Rosas paid a now-disbarred attorney to represent him in removal proceedings, and Calderon-Rosas was ordered deported after that attorney failed to present key evidence supporting his application for cancellation of removal. Calderon-Rosas sought a new hearing, arguing that he was deprived of due process by, among other things, his attorney’s ineffective assistance, but the Board of Immigration Appeals (BIA) denied his claims. We must decide whether we have jurisdiction to review due process claims where a petitioner, like Calderon-Rosas, seeks only discretionary relief—and if so, whether Calderon-Rosas’s claims have merit. Because we conclude that we have jurisdiction and Calderon-Rosas plainly presents a meritorious ineffective-assistance claim, we will vacate the Board’s decision and remand.”
[Hats off to Petra D. Fist!]
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Get the full decision at the link.
Panel:GREENAWAY, JR., KRAUSE, and RESTREPO,
Circuit Judges
Opinion by:Judge Krause
Here’s my favorite quote from court’s unanimous opinion written by Circuit Judge Krause:
The government’s argument, however, is one we have squarely rejected. We long ago recognized that due process claims can be asserted by petitioners seeking discretionary relief because “Congress instructed the Attorney General to establish an asylum procedure,” and “[w]hen Congress directs an agency to establish a procedure . . . it can be assumed that Congress intends that procedure to be a fair one.” Marincas v. Lewis, 92 F.3d 195, 203 (3d Cir. 1996) (addressing asylum claim). “[F]airness,” we explained, “mandate[s] that the asylum procedure promulgated by the Attorney General provide the most basic of due process.” Id.; see also Cham v. Att’y Gen., 445 F.3d 683, 691 (3d Cir. 2006) (“[A]lthough Cham has no constitutional right to asylum, he was entitled, as a matter of due process, to a full and fair hearing on his application.”); Ponce-Leiva v. Ashcroft, 331 F.3d 369, 373–74
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(3d Cir. 2003) (“Ponce–Leiva’s brief . . . suggests that counsel’s ineffectiveness was a denial of due process. Accordingly, we may analyze the claim, at least within the parameters of due process.”).
More recently, in Serrano-Alberto v. Attorney General, 859 F.3d 208 (3d Cir. 2017), in exercising jurisdiction over claims for discretionary relief, we reiterated that “petitioners must receive a full and fair hearing that allows them a reasonable opportunity to present evidence on their behalf, and a decision on the merits of their claim by a neutral and impartial arbiter.” Id. at 213 (internal quotation marks and citations omitted). That procedural due process right, we explained, is comprised of “three key protections” in immigration proceedings: “(1) ‘factfinding based on a record produced before the decisionmaker and disclosed to him or her’; (2) the opportunity to ‘make arguments on his or her own behalf’; and (3) ‘an individualized determination of his [or her] interests.’” Id. (quoting Dia v. Ashcroft, 353 F.3d 228, 239 (3d Cir. 2003) (en banc)). In short, “[t]hroughout all phases of deportation proceedings, petitioners must be afforded due process of law.” Id.
So true. Yet, so often ignored in practice by the Supremes and Circuit Courts.
The current Immigration “Court” system is run by a politically biased enforcement official, Billy Barr, who solely controls judicial appointments, job retention, sets so-called “performance standards” intentionally weighted toward DHS Enforcement’s needs, establishes binding “precedents,” and changes results favorable to asylum seekers and other respondents when they don’t suit his nativist agenda. In this system, no respondent is receiving a “fundamentally fair hearing” before a “fair and impartial decision maker.”
Even if an Immigration Judge tries to act fairly in an individual case, as many do, they are still bound by the Attorney General’s pro-enforcement policies, and the specter of arbitrary reversal of results favorable to the respondent by so-called “certification” by the AG hangs over and materially compromises the entire system and every proceeding.
Indeed, by concentrating only on the small, and somewhat random, sampling of “petitions for review” that actually cross their desks, the Courts of Appeals and the Supremes are ignoring the systemic lack of fundamental due process that infects this entire dysfunctional and unfair system. Time to wake up and do the right thing!
Nice words are one thing. Actions an entirely different matter!
Alimbaev v. Attorney General, 3rd Cir., 09-25-17, published
Before: JORDAN and KRAUSE, Circuit Judges,
and STEARNS, District Judge.*
* The Honorable Richard G. Stearns, United States District Judge for the District of Massachusetts, sitting by designation.
OPINION BY: Judge Krause
KEY QUOTE:
“This disconcerting case, before our Court for the second time, has a lengthy procedural history marked by conflict between the Board of Immigrations Appeals (BIA) and the Immigration Judge (IJ) and fueled by troubling allegations that Petitioner, an Uzbek national, relished watching violent terroristic videos, while apparently harboring anti-American sympathies. The issue on appeal, however, is whether the BIA correctly applied the clear error standard of review, as required, when reviewing the IJ’s factfinding in this case—an inquiry that highlights the role of faithful adherence to applicable standards of review in preserving the rule of law, safeguarding the impartiality of our adjudicatory processes, and ensuring that fairness and objectivity are not usurped by emotion, regardless of the nature of the allegations. Because we conclude that the BIA misapplied the clear error standard when reversing the IJ’s finding that Petitioner’s testimony was credible, we will grant the petition for review of the BIA’s removal order, vacate the denial of Petitioner’s applications for adjustment of status, withholding of removal, and protection under the Convention Against Torture (CAT), and remand once more to the BIA.”
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Read the entire, rather lengthy, decision at the above link.
While the Third Circuit Judges were obviously unhappy with the performance of the BIA Panel here, I’ll bet decisions like this don’t hurt the Appellate Immigration Judges involved wth their boss, Jeff Sessions. Running over the regulations, Due Process, fairness, impartiality, and objectivity in the name of getting perceived “bad guys” out of the country is probably what “Old Gonzo” expects and even demands from his wholly owned judiciary.
There is a massive gap in expectations here. The Third Circuit speaks of “faithful adherence to applicable standards of review in preserving the rule of law, safeguarding the impartiality of our adjudicatory processes, and ensuring that fairness and objectivity.” But a U.S. Immigration Court System (including the BIA) headed by the “Immigration Enforcer in Chief,” could not possibly achieve “impartiality, fairness, and objectivity” either in appearance or in practice.
Sessions exudes anti-immigrant enforcement zeal, xenophobia, White Nationalism, and disregard for the rule of law as it is commonly understood on a daily basis. He also regularly misinterprets statistics to paint a false picture of an “alien crime wave” and positively gloried in the chance to publicly disrespect and threaten to remove Dreamers.
How could these very clear messages that Sessions despises both legal and undocumented immigrants of all types, considers them bad for America, and would like them gone and restricted in the future, possibly not get down to to the mere civil servants who work for him? Do you think that Sessions is really going to defend an Immigration Court and/or a BIA that publicly and regularly stands up for the Due Process rights of foreign nationals and their rights to favorable consideration under many provisions of the immigration law? That doesn’t fit with his “restrictionist myth” that all undocumented immigrants are “law breakers” who deserve to be “punished” by removal from the United States.
Look how Trump heaps disrespect on Article III Judges who don’t go along with his illegal programs. How do you think he’s going to react if one of Jeff Sessions’s wholly owned judges stands up to one of the Administration’s gonzo legal positions or illegal policies? And, neither Immigration Judges nor Appellate Immigration Judges have the protections of life tenure. Do you seriously think that Jeff Sessions is really going to stand up for the right of one of his judges to “Just Say No” to Trump. In any event, Sessions has the the totally inappropriate and legally questionable authority to reverse any Immigration Court decision he doesn’t like anyway. That robs the whole system of any semblance of fairness, impartiality, and objectivity.
So, the Third Circuit Judges are tiptoeing around the real problem here. You can’t possibly have “impartiality, fairness, and objectivity” from an Immigration Court run by Jeff Sessions, a man who throughout his long career has demonstrated none of those characteristics.At some point, the Third Circuit Judges and their Article III colleagues elsewhere are going to have to face up to the glaring constitutional due process problems with the current U.S. Immigration Court structure. The question is when?
