THE BIA ISSUED MATTER OF M-A-M- TO GUIDE IJS ON MENTAL COMPETENCY ISSUES — THE PROBLEM: THE BIA IGNORES ITS OWN PRECEDENT ACCORDING TO 9th CIR!

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/08/29/15-70155.pdf

Mejia v. Sessions, 9th Cir., 08-29-17 (Published)

PANEL: Susan P. Graber and Mary H. Murguia, Circuit Judges, and Edward J. Davila,* District Judge

OPINION BY: Judge Davila

Key Excerpt:

“Here, there were clear indicia of Petitioner’s incompetency. He has a history of serious mental illness, including hallucinations, bipolar disorder, and major depression with psychotic features. During hearings before the IJ, Petitioner testified that he was not taking his medications and was feeling unwell. He said he was experiencing symptoms of mental illness and felt a “very strong pressure” in his head. He had difficulty following the IJ’s questions, and many of his responses were confused and disjointed. Under In re M-A-M-, those indicia triggered the IJ’s duty to explain whether Petitioner was competent and whether procedural safeguards were needed. The IJ failed to do so. On review, the BIA noted that Petitioner suffers from serious mental illness and “was feeling unwell without his medication” during the proceedings before the IJ.

Nonetheless, the BIA concluded that remand was not warranted because certain procedural safeguards were in place—for instance, Petitioner was represented by counsel, he “presented testimony in support of his claims,” and he “provided his parents as witnesses.” But the BIA did not address the IJ’s failure to articulate his assessment of Petitioner’s competence and why these procedural safeguards were adequate.

The BIA abused its discretion by failing to explain why it allowed the IJ to disregard In re M-A-M-’s rigorous procedural requirements. See Alphonsus, 705 F.3d at 1044 (“It is a well-settled principle of administrative law that an agency abuses its discretion if it clearly departs from its own standards.” (internal quotation marks omitted)).We therefore remand to the BIA with instructions to remand to the IJ for a new hearing consistent with In re M-A-M-.”

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The problem of the BIA not applying its own precedents to protect migrants’ rights is hardly new. But, it’s likely to get worse as Sessions pushes his “captive court system” to churn out more removal orders faster with only lip service to due process.

Question: Why would a reviewing court have to direct the BIA to apply the BIA’s own precedent? So much for the BIA as a “guarantor of due process.”

Rather than “jacking up the numbers” to meet the Trump-Sessions removal agenda, the BIA needs to slow things down, assign more cases to three-member panels, and do the kind of careful judicial review and deliberation necessary to insure due process. It’s also pretty obvious that the staff has been instructed to “default to denial.” They need some training from academic experts in due process and asylum law.

Too much “inbreeding”  — too much agency lingo — too much DOJ political influence.  The effects are obvious. The BIA needs to be removed from the DOJ and re-constituted as an independent appellate court. Otherwise, the Courts of Appeals need to step in and force the BIA to do its job!

PWS

09-02-17

 

 

4TH CIRCUIT SHRUGS OFF VIOLATION OF REFUGEE’S DUE PROCESS RIGHTS! — MEJIA V. SESSIONS

http://www.ca4.uscourts.gov/Opinions/Published/161280.P.pdf

All the quote your really need to understand how far into the sand the Article III Judges on this panel were willing to stick their heads to avoid upholding the Constitution:

“Calla Mejia warns that our interpretation of § 1252(b)(1) contravenes the REAL ID Act and effectively “abolish[es] review of all underlying orders in reinstatement,” thereby raising “‘serious constitutional problems’”—namely, Suspension Clause concerns.12 Pet’r’s Opp’n to Resp’t’s Mot. to Dismiss, at 12, 17 (quoting INS v. St. Cyr, 533 U.S. 289, 300 (2001)). Not so. Rather, we think it more than feasible that an individual removed to her home country could illegally re-enter the United States, have the original removal order reinstated by DHS, and petition for review—all within a month’s time.”

Ah, according to the judges who joined the majority here, the respondent’s mistake was that she waited several months before reentering the U.S. illegally,  instead of reentering illegally within 30 days. Of course, the trauma caused by her having been raped by her husband upon return, after being improperly duressed by a U.S. Immigration Judge in a detention facility (who seriously misrepresented the law) into abandoning what should have been a “slam dunk” asylum grant under Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014), might have had something to do with it. But, if you’re a life-tenured judge in the “ivory tower” who cares? And, of course, unrepresented aliens subject to reinstated orders in detention  centers would have little trouble filing a petition for review in a U.S. Court of Appeals. Com’ On, Man!

But, wait a minute! Judge Traxler, in his separate opinion, had an even better idea: let’s find no jurisdiction over everything so we can completely wash our hands of what we’re doing to this undisputed “refugee.”

Well, the good news here is that the Respondent did end up with a basically uncontested grant of mandatory withholding of removal to Peru, so her life is saved. That’s because, unlike the four other U.S. Judges who heard her case, the second Immigration Judge to hear the case, in Maryland, was actually interested in making the law work to grant protection. Lucky for the respondent she wasn’t sent to Charlotte, Atlanta, or Stewart!

But, as a result of the due process violations by the first Immigration Judge who heard (but didn’t take the time to understand)  the case (probably one of those who can “really crank out the removal orders” for unrepresented individuals at detention centers) and the unwillingness of the Fourth Circuit Panel that reviewed this case to uphold the Constitution, this respondent will be condemned to “limbo” in the U.S., unable to qualify for the green card or the eventual chance to become a U.S. citizen that she otherwise should have had.

Read the full decision and understand my point that some, or perhaps the majority, of Article III Judges who are the only hope for due process for many refugees and others entitled to remain in the U.S. will be happy to sign on as “station masters” on the “Trump-Sessions Deportation Express.” It’s the easiest path to take.

PANEL: CIRCUIT JUDGES TRAXLER, DIAZ, and FLOYD

OPINION BY: JUDGE DIAZ

CONCURRING AND DISSENTING OPINION: JUDGE TRAXLER

PWS

08-11-17