🤯 🤯🤯 COURTSIDE TRIPLE HEADER! — 1) “Why Is It A Continuing Battle To Get The Biden Administration To Follow Asylum Law, As Promised,” Asks Hon. “Sir Jeffrey” Chase? — “If you’re wondering how the new system is working out, according to one report, it has resulted in asylum seekers on the Mexican side of the Laredo port of entry being robbed, kidnapped, and held for ransom.” — 2) Commentary From The Great Lenni Benson: “Confusion Abounds!” — 3) PLUS BONUS BORDER COVERAGE FROM MICA ROSENBERG @ REUTERS: Biden’s Regs Are A Humanitarian, Legal, & Moral Catastrophe Despite BS “Success” Claims From Disingenuous USG Officials! ☠️

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

https://www.jeffreyschase.com/blog/2023/7/5/bidens-asylum-bar

Biden’s Asylum Bar

I’m sure many of you remember a childhood game called “Mother, May I?” An authority figure would say, “Jeff, take two giant steps forward!” But before doing so, the player would have to ask “Mother, may I?” Those two giant steps could only be taken if the response was “Yes, you may.” Otherwise, if the player took the steps, they were out.

If we were to take this game, direct the request and reply through an app called CBPOne, and make the stakes life or death, the result would be something very similar to the Biden Administration’s latest regulations governing asylum at the southern border.

The new rules are at odds with U.S. law. Congress has already authorized asylum seekers to take the necessary steps up to the border. The very first sentence of 8 U.S.C. § 1158 (the U.S. asylum statute) says that any noncitizen “whether or not at a designated port of arrival” and irrespective of their immigration status may apply for asylum.

And yet, not Congress but two Executive Branch agencies have now added a “Mother, May I?” type obstacle for those seeking to do what the law has long permitted. Under the new rules, the asylum seeker must first ask through a glitchy government phone app for specific permission (in the form of an appointment) before striding up to the border. Otherwise, the asylum seeker is simply not eligible for asylum, no matter how serious the danger they face if removed to their country.

How can Executive Branch agencies issue regulations that so directly contradict the statute those agencies are charged with enforcing? That question is the basis of a lawsuit filed by the ACLU, the National Immigrant Justice Center, and the Center for Gender and Refugee Studies in U.S. District Court.1

Our Round Table of Former Immigration Judges filed an amicus brief in support of petitioners’ arguments. We are in good company, as the USCIS asylum officers’ union filed a persuasive amicus brief as well.2 This means that groups representing the views of the only government officials authorized to decide asylum claims in this country (i.e. immigration judges and asylum officers) are united in opposing the new rule.

In our Round Table brief, we specifically take issue with the government’s false labeling of the new bar as merely a “rebuttable presumption” of asylum ineligibility.

Real rebuttable presumptions have long existed in our asylum regulations. For example, there is a rebuttable presumption that someone who has been persecuted in the past for reasons that give rise to an asylum claim may be persecuted again, unless major changes have since taken place in their country. There is also a presumption that one whose persecutor is the government of their country can’t find safety by simply relocating within that same country.

As you’ve probably noticed, there is a logic that flows in each of those examples from the known facts to the presumption. It is logical to assume that someone who was harmed before might be harmed again if conditions remain the same. The government may rebut the presumption by showing a fundamental change of the type that would put those fears to rest. There is a similar logic in concluding that a government’s reach extends throughout the country it governs. Again, the government may rebut that presumption through evidence establishing an exception to this general rule. In both of these examples, the fact established increases the likelihood of the fact presumed.

Now let’s return to the new rule. Say that a person faces brutal persecution on account of their political opinion if returned to their country. How does the fact that they couldn’t or didn’t get an appointment through a phone app in any way create a presumption that they are not in need of humanitarian protection? There can’t be a presumption if the fact established (i.e. that the person didn’t obtain an appointment through the app) is completely unrelated to the fact presumed (i.e. the person is not in need of asylum).

I believe it matters greatly whether the rule is considered a bar or a presumption. It is Congress that decides who may apply for asylum in this country. Thus, a regulation that admittedly creates a new bar to asylum (particularly where that bar is in direct contradiction to Congressional intent) is likely to be rejected as ultra vires by the courts. And in fact, a very similar bar to this one published by the Trump Administration was enjoined for just that reason.3 Agencies cannot usurp Congress’s role by legislating in the guise of rulemaking.

By attempting to disguise the new bar as merely a “rebuttable presumption,” the agencies seek to increase the odds of the ban passing muster this time. That is exactly the Department of Justice’s argument in its response brief: that its new rule is completely different from the prior administration’s “bar,” because according to DOJ, the new rule “does not treat manner of entry as dispositive, but instead creates a rebuttable presumption that can be overcome…”4

So the “Mother, may I?” regs clearly overstep the agencies’ legal authority. But do they create an equal barrier for all asylum seekers? The answer is no. As stated, the rules require one intending to apply for asylum to first obtain an appointment. Of course, there are more asylum seekers than there are available appointments. As mentioned, the government app through which one tries to secure an appointment, CBPOne, is full of glitches. As Prof. Austin Kocher recently noted, those glitches have impacted who gets those appointments:

the initial release of CBP One was accompanied by a variety of tech failures that did not necessarily undermine CBP’s ability to fill up its appointments calendar for asylum seekers but did create barriers to entry for migrants who were less tech savvy, could not access high-speed Internet, were part of larger families, or, either directly or indirectly, migrants who were darker-skinned or Black.5

That last point refers to the app’s problems with facial recognition that have caused it to reject applicants who are not white.6 As a result of these and other reported scheduling inequities, Sen. Edward Markey wrote to DHS back in February urging the agency to cease use of the app, due to its inaccessibility to many intending applicants, adding that “we cannot allow it to create a tiered system that treats asylum seekers differently based on their economic status — including the ability to pay for travel — language, nationality, or race.”.7

Instead of “ditching the app” as the Senator requested, the agencies instead added an exception to the bar if the noncitizen “demonstrates by a preponderance of the evidence that it was not possible to access or use the DHS scheduling system due to language barrier, illiteracy, significant technical failure, or other ongoing and serious obstacle.”8

However, there is a big catch. Pursuant to the rule, this exception is only available to those without an appointment who make their claim at an actual port of entry.  But observers at points of entry along the southern border report that “practices by U.S. and Mexican authorities restricted asylum seekers without CBP One appointments from physically reaching U.S. ports of entry to make protection requests.”9 So the exception written into the regs is not available in reality, as one seeking to claim it is restricted from reaching the port of entry where it must be claimed, and is barred from claiming the exception if they cross the border elsewhere.

If you’re wondering how the new system is working out, according to one report, it has resulted in asylum seekers on the Mexican side of the Laredo port of entry being robbed, kidnapped, and held for ransom.10 Another article described how some of  those “lucky” enough to have obtained CBPOne appointments at Laredo claimed “that Mexican officials in Nuevo Laredo, across the border from Laredo, Texas, had threatened to hold them and make them miss their scheduled asylum appointments unless they paid them.”11 As a result, CBPOne appointments were temporarily suspended for the Laredo port of entry.

One excluded from asylum under these rules may still seek two types of lesser protections called withholding of removal.12 Oddly, under U.S. law, these alternative protections are much more difficult than asylum to qualify for, yet provide far fewer benefits. Asylum is an actual legal status which extends to the spouse and minor children of the asylee, allows for travel abroad, and puts recipients on a path to permanent residence and then citizenship in this country. By contrast, withholding of removal arises when an individual is ordered deported, and only blocks their deportation to a country in which persecution or torture is likely to occur, but otherwise leaves the recipient in limbo. The protection provides no path to family reunification or permanent status, and no right to travel abroad to visit the family members from whom the recipient is left indefinitely separated.

Nevertheless, withholding of removal does save lives. But not satisfied with simply barring asylum, the new regulations also make these lesser forms of protection far more difficult to access. This is because one must first pass something called a “credible fear interview” in order to even have the right to apply for withholding of removal in this country. As those interviews are conducted within days of the asylum-seeker’s arrival, in custody, often before the applicant has had the opportunity to obtain legal counsel or evidence, and possibly while suffering from the effects of persecution, the credible fear standard was intentionally designed to be a low one. The idea is to allow people who might genuinely be at risk the opportunity to fully develop their cases in a full removal proceeding, while only quickly removing those lacking legitimate claims.

But the new regulations raise the burden of proof by requiring the applicant at this very early stage to demonstrate a “reasonable fear” of persecution, which USCIS describes as the exact same standard required for a grant of asylum – i.e. “well-founded fear.13 Again, the lower credible fear standard being replaced was created solely because it isn’t reasonable to expect someone to prove more under the conditions faced by such recent arrivals. This intended safeguard has thus been completely undermined, as one who might only be a day or two in the country must now present a full-blown asylum claim just to earn the chance to have a hearing.

The new process requires non-lawyers to satisfy a complex legal standard they won’t understand, often without the time to seek legal advice or compile the evidence necessary to meet the heightened burden. I have no doubt that the process will result in genuine refugees being denied protection. And once again, the entire reason for placing applicants at such heightened risk is their not having obtained an appointment on a problematic phone app.

Why does the Biden Administration believe all this is necessary? In a recent column, Jamelle Bouie addressed the vows of some Republican presidential candidates to eliminate the constitutional right to birthright citizenship through executive order.14 In addition to presenting a compelling argument as to why this cannot legally be done, Bouie included in his column a wonderful quote from Frederick Douglass: “The outspread wings of the American Eagle are broad enough to shelter all who are likely to come.”

In case the Biden Administration is wondering if it can champion that same sentiment today, in lieu of its convoluted attempt to ban protection to those deserving of it under our laws, the answer is: “Yes, you may.”

(Much thanks to attorneys Ashley Vinson Crawford and Steven Schulman of the law firm of Akin Gump for representing the group of former Immigration Judges and BIA Members on our amicus brief in East Bay Sanctuary.)

Copyright 2023, Jeffrey S. Chase. All rights reserved.

Notes:

  1. East Bay Sanctuary Covenant v. Biden, No. 18-cv-06810-JST, N.D. Cal. (Filed May 11, 2023).
  2. See Britain Eakin, “Asylum Officers, Ex-Judges Back Suit on Biden Asylum Rule,” Law360, June 8, 2023.
  3. East Bay Sanctuary v. Barr, 964 F.3d 832 (9th Cir. 2020) (holding that the Trump Administration’s asylum bar was inconsistent with our asylum laws).
  4. Defendants’ Reply Brief, East Bay Sanctuary v. Biden, (June 30, 2023) at 8.
  5. Austin Kocher, “Glitches in the Digitization of Asylum: How CBP One Turns Migrants’ Smartphones into Mobile Borders,” mdpi.com, June 20, 2023, https://www.mdpi.com/2075-4698/13/6/149, section 4.
  6. Melissa del Bosque, “Facial Recognition Bias Frustrates Black Asylum Applicants to US,” The Guardian, Feb. 8, 2023,
  7. “Senator Markey Calls on DHS to Ditch Mobile App Riddled With Glitches, Privacy Problems, For Asylum Seekers,” https://www.markey.senate.gov/news/press-releases/senator-markey-calls-on-dhs-to-ditch-mobile-app-riddled-with-glitches-privacy-problems-for-asylum-seekers.
  8. 8 C.F.R. § 1208.33(a)(2)(ii)(B).
  9. International Rescue Committee, “Limits on Access to Asylum After Title 42: One Month of Monitoring U.S.-Mexico Border Ports of Entry” (June 2023), https://www.rescue.org/sites/default/files/2023-06/Limits%20on%20Access%20to%20Asylum%20After%20Title%2042_1.pdf.
  10. Sandra Sanchez, “Kidnappings, Extortion End CBP Asylum Interviews at Laredo-Nuevo Laredo Border Crossing,” Border Report, June 14, 2023, https://www.borderreport.com/immigration/border-crime/kidnappings-extortion-end-cbp-asylum-interviews-at-laredo-nuevo-laredo-border-crossing/?ipid=promo-link-block1.
  11. Valerie Gonzalez and Julie Watson, “U.S. Halts Online Asylum Appointments at Texas Crossing After Extortion Warnings,” A.P., June 12, 2023, https://apnews.com/article/mexico-border-cbp-one-laredo-bfccf8c3f52d9cec2563b40da905a391.
  12. One form of withholding covers persecution for specified reasons; the other applies to torture.
  13. See Asylum Officer Basic Training Course Lesson Plan, “Reasonable Fear and Torture Determinations,” (USCIS, RAIO, 2017) at 11 (“The ‘reasonable possibility’ standard is the same standard required to establish eligibility for asylum (the ‘well- founded fear’ standard).”)
  14. Jamelle Bouie, “Opinion: What Frederick Douglass Knew That Trump and DeSantis Don’t,” NYT, June 30, 2023.

JULY 5, 2023

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

It’s an existential problem for our nation when a Dem Administration claims as “success:” failure to recognize the rights of asylum seekers, intentionally evading asylum law, and endangering the lives of asylum seekers!

Lest anyone think the confusion, unfairness, and disorder caused by the Biden/Harris failure to implement competent, professional, expert leadership on human rights is “overhyped,” here’s an “in person” report from Professor Lenni Benson of NY Law School, founder of Safe Passage Project, and a widely reknowned “practical expert” on asylum and human rights.

Professor Lenni B. Benson
Professor Lenni B.Benson
Distinguished Chair of Immigration and Human Rights Law
New York Law School
Founder, Safe Passage Project
PHOTO: NYLS website

 

Sharing an excellent Blog post by retired IJ Jeff Chase on why the CBP One app may be endangering asylum applicants.  See below.

 

Related to the CBP One app was a hearing I observed last Friday, June 30, 2023 in NY City.

 

A self-represented individual was asked by the IJ “were you admitted or inspected” by the government, the Respondent through a Mandarin interpreter said “Yes, through the CBP app.”  The IJ paused. The OPLA attorney was visible on Webex. She was silent.

 

The IJ said “I will note your statement for the record, I find you removable as charged for not having been inspected or admitted.” [The Respondent had declined an opportunity to find an attorney.]

 

I am sure CBP will argue that entry under the app is not an inspection or admission and I haven’t looked carefully at the regulations but the issue is there to perhaps be litigated.

 

The other interesting twist in this particular case was that the government then told the Judge that she could see the Respondent had already completed biometrics and submitted an asylum application, but no application was in either her file nor the Court’s.

The IJ asked, do you have a copy?

The respondent: “On my phone.”

The IJ set a call-up date hearing to have the respondent print out the application and file it with the court in person.

 

I didn’t get a chance to speak to the Respondent, but I wondered if he had perhaps thought his interview with CBP was his asylum application or if he had filed affirmatively with USCIS.

 

Just sharing with this community.

 

Confusion abounds.

“Confusion abounds!” 🤯Why, rather than clarifying and applying the law, would the Administration intentionally create confusion and a host of unnecessary “litigatable issues?” 

Why would they create delay by supposedly having applications for asylum “filed” but unavailable electronically to either ICE or EOIR? 

Why didn’t the Administration recruit and hire real “practical experts” like Lenni Benson and her colleagues to straighten out the asylum system at the border, restore the rule of law, and reform and repopulate the critically important, currently dysfunctional, Immigration Courts and the BIA with well-qualified progressive judges, merit-selected experts in human rights and practical problem solving?

Pleased to join my friend “Sir Jeffrey” in giving a big “shout out” to our Round Table colleagues and superstar NDPA attorneys Steve Schulman, Ashley Vinson Crawford, and their pro bono team at Akin Gump for representing us on the amicus brief in East Bay Sanctuary!

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

Anybody naive enough to believe the “party line” from Administration wonks about “success at the border” should heed this “hot off the presses” report from Mica Rosenberg @ Reuters. It confirms the legal and humanitarian disaster at the border resulting from two plus years of mismanagement of asylum by Mayorkas, Garland, and the rest of the Biden immigration politicos who have  failed to undo the humanitarian and legal mess left behind by White Nationalist Stephen Miller and the rest of the Trumpist scofflaws!

Mica Rosenberg
Mica Rosenberg
National Immigration Reporter, Reuters

Mica writes:

We examined the impact of the Biden administration’s new asylum regulation at the U.S.-Mexico border after it replaced the COVID-era Title 42 expulsion policy on May 11.

 

U.S. officials have said the regulation and other Biden immigration policies, that have opened new legal pathways to the US, have dramatically reduced the number of illegal border crossings.

But in the first month of the new policy, Reuters interviews with more than 50 migrants, U.S. and Mexican officials, a review of court records and previously unreported data found:

More than 100,000 migrants waiting in northern Mexico, many trying to snag an appointment on an oversubscribed government run smartphone app; a sharp drop in people passing their initial asylum screenings; more people in detention and tens of thousands of deportations.

 

My colleagues visited the mile-long migrant camp in Matamoros, across the river from Brownsville, Texas, where conditions are deteriorating, including cases of sexual assault in the camp, and we also spoke to a father who crossed the border but was speedily deported while his family was allowed into the US.

https://www.reuters.com/investigates/special-report/usa-immigration-asylum-border/

 

Please read and share and keep in touch.

The report at the above link has many photos illustrating both the cruel stupidity of the Biden program and the amazing resilience of those still hoping, against the odds, to have their legal rights respected and protected by the USG.

Thanks, Mica, for “telling it like it is” and penetrating the “bureaucratic smokescreen” thrown up by the Administration to cover its misdeeds and human rights abuses!🤮

🇺🇸 Due Process Forever!

PWS

07-06-23

⚖️🗽4TH CIRCUIT BLASTS GARLAND EOIR’S INDOLENT, “HASTE MAKE WASTE,” DENIAL-CENTRIC ASYLUM ADJUDICATION IN ANOTHER VICTORY FOR ROUND TABLE & DUE PROCESS & ANOTHER “WARNING SHOT ACROSS THE BOW” FOR GARLAND’S FAILURE TO INSTITUTE LONG OVERDUE PROGRESSIVE REFORMS AND REPLACE DEFICIENT JUDGES @ EOIR! 🏴‍☠️☠️— Immigration Judges Have A Duty To Develop the Record, Even When It Slows Down EOIR’s “Deportation Railroad” — AREVALO QUINTERO v. GARLAND!

Four Horsemen
BIA Asylum Panel In Action — What are Garland, Monaco, and Gujpta doing to end these atrocities!? So far, nothing!
Albrecht Dürer, Public domain, via Wikimedia Commons

Arevalo Quintero v. Garland, 4th Cir., 05-26-21, published

PANEL:MOTZ, WYNN, and FLOYD, Circuit Judges. 

OPINION BY: Judge Wynn

CONCURRING OPINION: Judge Motz

KEY QUOTE: 

In our country, few populations are as vulnerable as noncitizens facing removal

proceedings who are unable to secure the assistance of adequate counsel. Yet the consequences they may face are severe: family separation, prolonged detention, and deportation to a country where persecution or even death awaits.

We are acutely conscious of the harsh realities of our immigration system faced by thousands of noncitizens each day. These individuals come to our shores in search of sanctuary and a better life. Many are poor, young, uneducated, or (like Petitioner) all three. Of course, we recognize that immigration policies are primarily a concern for the elected branches. But it is our role, and our highest duty, to ensure that those policies are applied fairly and with full regard to our laws and our Constitution.

With these grave concerns in mind, we hold today that under the Immigration and Nationality Act and, where relevant, the United States’ obligations under the Refugee Convention, immigration judges have a legal duty to fully develop the record, which becomes particularly important in pro se cases. We believe this procedural protection is essential for ensuring fundamental fairness and reasoned decision making in removal proceedings.

Based on our review of the record, we conclude that the immigration judge below failed to fulfill her duty to fully develop the record, thereby depriving Petitioner of a vital statutory protection and a full and fair hearing. In light of this and other errors made by the immigration judge and the Board of Immigration Appeals, we grant the petition, vacate Petitioner’s final order of removal, and remand to the Board of Immigration Appeals with instructions to remand the case to the immigration judge for further fact-finding and reconsideration of Petitioner’s application for withholding of removal and Convention Against Torture relief.

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

Miller Lite
“Miller Lite” – Garland’s Vision of “Justice @ Justice” for Communities of Color

How many more of these disasters will it take for Garland to oust the deadwood and the “denial club” from the Immigration Judiciary, make the urgently needed, long overdue progressive reforms, and bring in progressive leaders and judges to restore due process at the totally and disgracefully dysfunctional EOIR? How many more lives will be needlessly be lost or squandered by the unconstitutional parody of a “court” system that Garland is running @ EOIR?  What will the cost of his “case of the slows” be to Garland’s reputation and to the Biden Administration? Why is the “EOIR Clown Show”🤡⚰️still engaging in its daily deadly performances more than four months into the Biden Administration?

Also, every additional embarrassing, unprofessional performance like this by EOIR makes Garland’s horrible decision to hire 17 more “less than the best,” non-expert Immigration Judges, who haven’t represented individuals in Immigration Court, look worse and worse! There are lots of experts out there in the NDPA who know asylum law, know how to develop a record fully, and are highly sensitive to the due process needs of asylum seekers and other migrants. The continuation of ignorant, haste make waste, “any reason to get to no” decision making at EOIR, that specifically was encouraged by Sessions and Barr, is totally unnecessary ands highly inappropriate!

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

Here’s more from Round Table leader Hon. “Sir Jeffrey” Chase:

Friends, this is a really great win.  In a 62-page published decision, a panel of the Fourth Circuit referenced our amicus brief, adopted many of our arguments, and agreed that an IJ has a duty to develop the record in a pro se withholding/CAT claim.

The court actually granted the withholding of removal claim (see pp. 53-54).  It also found that the BIA incorrectly applied Matter of W-Y-C- & H-O-B- to a pro se applicant.

While our brief is mentioned in the body of the decision, if you look at footnote 24, the court especially liked the analogy from our brief (the work of our drafter, Steve Schulman of Akin Gump) comparing  a pro se applicant’s attempts to formulate a particular social group to a game of Scrabble in which one of the players “does not speak English and cannot spell;” adding that “without help, the respondent could never win, and can’t even meaningfully participate.”

There are also references to Matter of S-M-J- and the UNHCR Handbook.

I think we can be very proud of this one.

Thanks again to Steve Schulman, who has done such an outstanding job in drafting quite a few of our briefs.

Best, Jeff

Just think of what could be accomplished and the resources that would be conserved if the progressive due process experts were on the INSIDE at EOIR rather than perpetually STUCK ON THE OUTSIDE litigating, writing, lobbying, complaining to get Garland to simply do his job! Not rocket science. But, apparently below Garland’s view and beyond his engagement level from the “ivory tower.”

🇺🇸Due Process Forever!

PWS

05-26-21

“GANG OF 14” FORMER IMMIGRATION JUDGES AND BIA APPELLATE IMMIGRATION JUDGES (INCLUDING ME) FILE AMICUS BRIEF IN SUPPORT OF ADMINISTRATIVE CLOSING! – Matter of Castro-Tum

HERE’S “OUR HERO” STEVEN H. SCHULMAN OF AKIN GUMP’S DC OFFICE WHO DID ALL THE “HEAVY LIFTING” OF DRAFTING THE BRIEF:

HERE’S THE “CAST OF CHARACTERS” (A/K/A “GANG OF 14”):

Amici curiae are retired Immigration Judges and former members of the Board of Immigration Appeals, who seek to address the Attorney General’s certified questions regarding administrative closure. Amici were appointed to serve at immigration courts around the United States and with the Board, and at senior positions with the Executive Office of Immigration Review. From their many combined years of service, amici have intimate knowledge of the operation of the immigration courts, including the importance of various procedural mechanisms to maintain efficient dockets. As explained in detail, administrative closure, when used judiciously, is a critical tool for immigration judges in managing their dockets. Without tools like administrative closure, immigration judges would be hampered, unable to set aside those matters that do not yet require court intervention and thus prevented from focusing on the removal cases that demand immediate attention.

In particular, the Honorable Sarah M. Burr served as a U.S. Immigration Judge in New York from 1994 and was appointed as Assistant Chief Immigration Judge in charge of the New York, Fishkill, Ulster, Bedford Hills and Varick Street immigration courts in 2006. She served in this capacity until January 2011, when she returned to the bench full-time until she retired in 2012. Prior to her appointment, she worked as a staff attorney for the Criminal Defense Division of the Legal Aid Society in its trial and appeals bureaus and also as the supervising attorney in its immigration unit. She currently serves on the Board of Directors of the Immigrant Justice Corps.

The Honorable Jeffrey S. Chase served as an Immigration Judge in New York City from 1995 to 2007 and was an attorney advisor and senior legal advisor at the Board from 2007 to 2017. He is presently in private practice as an independent consultant on immigration law, and Page 2 of 32 is of counsel to the law firm of DiRaimondo & Masi in New York City. Prior to his appointment, he was a sole practitioner and volunteer staff attorney at Human Rights First. He also was the recipient of the American Immigration Lawyers Association’s annual pro bono award in 1994 and chaired AILA’s Asylum Reform Task Force.

The Honorable Bruce J. Einhorn served as a United States Immigration Judge in Los Angeles from 1990 to 2007. He now serves as an Adjunct Professor of Law at Pepperdine University School of Law in Malibu, California, and a Visiting Professor of International, Immigration, and Refugee Law at the University of Oxford, England. He is also a contributing op-ed columnist at D.C.-based The Hill newspaper. He is a member of the Bars of Washington D.C., New York, Pennsylvania, and the Supreme Court of the United States.

The Honorable Cecelia M. Espenoza served as a Member of the Executive Office for Immigration Review (“EOIR”) Board of Immigration Appeals from 2000-2003 and in the Office of the General Counsel from 2003-2017 where she served as Senior Associate General Counsel, Privacy Officer, Records Officer and Senior FOIA Counsel. She is presently in private practice as an independent consultant on immigration law, and a member of the World Bank’s Access to Information Appeals Board. Prior to her EOIR appointments, she was a law professor at St. Mary’s University (1997-2000) and the University of Denver College of Law (1990-1997) where she taught Immigration Law and Crimes and supervised students in the Immigration and Criminal Law Clinics. She has published several articles on Immigration Law. She is a graduate of the University of Utah and the University of Utah S.J. Quinney College of Law. She was recognized as the University of Utah Law School’s Alumna of the Year in 2014 and received the Outstanding Service Award from the Colorado Chapter of the American Immigration Lawyers Page 3 of 32 Association in 1997 and the Distinguished Lawyer in Public Service Award from the Utah State Bar in 1989-1990.

The Honorable Noel Ferris served as an Immigration Judge in New York from 1994 to 2013 and an attorney advisor to the Board from 2013 to 2016, until her retirement. Previously, she served as a Special Assistant U.S. Attorney in the Southern District of New York from 1985 to 1990 and as Chief of the Immigration Unit from 1987 to 1990.

The Honorable John F. Gossart, Jr. served as a U.S. Immigration Judge from 1982 until his retirement in 2013 and is the former president of the National Association of Immigration Judges. At the time of his retirement, he was the third most senior immigration judge in the United States. Judge Gossart was awarded the Attorney General Medal by then Attorney General Eric Holder. From 1975 to 1982, he served in various positions with the former Immigration Naturalization Service, including as general attorney, naturalization attorney, trial attorney, and deputy assistant commissioner for naturalization. He is also the co-author of the National Immigration Court Practice Manual, which is used by all practitioners throughout the United States in immigration court proceedings. From 1997 to 2016, Judge Gossart was an adjunct professor of law at the University of Baltimore School of Law teaching immigration law, and more recently was an adjunct professor of law at the University of Maryland School of Law also teaching immigration law. He has been a faculty member of the National Judicial College, and has guest lectured at numerous law schools, the Judicial Institute of Maryland and the former Maryland Institute for the Continuing Education of Lawyers. He is also a past board member of the Immigration Law Section of the Federal Bar Association. Judge Gossart served in the United States Army from 1967 to 1969 and is a veteran of the Vietnam War. Page 4 of 32

The Honorable William P. Joyce served as an Immigration Judge in Boston, Massachusetts. Subsequent to retiring from the bench, he has been the Managing Partner of Joyce and Associates with 1,500 active immigration cases. Prior to his appointment to the bench, he served as legal counsel to the Chief Immigration Judge. Judge Joyce also served as an Assistant U.S. Attorney for the Eastern District of Virginia, and Associate General Counsel for enforcement for INS. He is a graduate of Georgetown School of Foreign Service and Georgetown Law School.

The Honorable Edward Kandler was appointed as an Immigration Judge in October 1998. Prior to his appointment to the Immigration Court in Seattle in June 2004, he served as an Immigration Judge at the Immigration Court in San Francisco from August 2000 to June 2004 and at the Immigration Court in New York City from October 1998 to August 2000. Judge Kandler received a Bachelor of Arts degree in 1971 from California State University at San Francisco, a Master of Arts degree in 1974 from California State University at Hayward, and a Juris Doctorate in 1981 from the University of California at Davis. Judge Kandler served as an assistant U.S. trustee for the Western District of Washington from 1988 to 1998. He worked as an attorney for the law firm of Chinello, Chinello, Shelton & Auchard in Fresno, California, in 1988. From 1983 to 1988, Judge Kandler served as an assistant U.S. attorney in the Eastern District of California. He was also with the San Francisco law firm of Breon, Galgani, Godino from 1981 to 1983. Judge Kandler is a member of the California Bar.

The Honorable Carol King served as an Immigration Judge from 1995 to 2017 in San Francisco and was a temporary Board member for six months between 2010 and 2011. She previously practiced immigration law for ten years, both with the Law Offices of Marc Van Der Page 5 of 32 Hout and in her own private practice. She also taught immigration law for five years at Golden Gate University School of Law and is currently on the faculty of the Stanford University Law School Trial Advocacy Program. Judge King now works as a Removal Defense Strategist, advising attorneys and assisting with research and writing related to complex removal defense issues.

The Honorable Lory D. Rosenberg served on the Board from 1995 to 2002. She then served as Director of the Defending Immigrants Partnership of the National Legal Aid & Defender Association from 2002 until 2004. Prior to her appointment, she worked with the American Immigration Law Foundation from 1991 to 1995. She was also an adjunct Immigration Professor at American University Washington College of Law from 1997 to 2004. She is the founder of IDEAS Consulting and Coaching, LLC., a consulting service for immigration lawyers, and is the author of Immigration Law and Crimes. She currently works as Senior Advisor for the Immigrant Defenders Law Group.

The Honorable Susan Roy started her legal career as a Staff Attorney at the Board of Immigration Appeals, a position she received through the Attorney General Honors Program. She served as Assistant Chief Counsel, National Security Attorney, and Senior Attorney for the DHS Office of Chief Counsel in Newark, NJ, and then became an Immigration Judge, also in Newark. Sue has been in private practice for nearly 5 years, and two years ago, opened her own immigration law firm. Sue is the NJ AILA Chapter Liaison to EOIR, is the Vice Chair of the Immigration Law Section of the NJ State Bar Association, and in 2016 was awarded the Outstanding Prop Bono Attorney of the Year by the NJ Chapter of the Federal Bar Association. Page 6 of 32

The Honorable Paul W. Schmidt served as an Immigration Judge from 2003 to 2016 in Arlington, virginia. He previously served as Chairman of the Board of Immigration Appeals from 1995 to 2001, and as a Board Member from 2001 to 2003. He authored the landmark decision Matter of Kasinga, 21 I&N Dec. 357 (BIA 1995) extending asylum protection to victims of female genital mutilation. He served as Deputy General Counsel of the former INS from 1978 to 1987, serving as Acting General Counsel from 1986-87 and 1979-81. He was the managing partner of the Washington, D.C. office of Fragomen, DelRey & Bernsen from 1993 to 1995, and practiced business immigration law with the Washington, D.C. office of Jones, Day, Reavis and Pogue from 1987 to 1992, where he was a partner from 1990 to 1992. He served as an adjunct professor of law at George Mason University School of Law in 1989, and at Georgetown University Law Center from 2012 to 2014 and 2017 to present. He was a founding member of the International Association of Refugee Law Judges (IARLJ), which he presently serves as Americas Vice President. He also serves on the Advisory Board of AYUDA, and assists the National Immigrant Justice Center/Heartland Alliance on various projects; and speaks, writes and lectures at various forums throughout the country on immigration law topics. He also created the immigration law blog immigrationcourtside.com.

The Honorable Polly A. Webber served as an Immigration Judge from 1995 to 2016 in San Francisco, with details in facilities in Tacoma, Port Isabel, Boise, Houston, Atlanta, Philadelphia, and Orlando. Previously, she practiced immigration law from 1980 to 1995 in her own private practice in San Jose. She was a national officer in AILA from 1985 to 1991 and served as National President of AILA from 1989 to 1990. She has also taught immigration and nationality law at both Santa Clara University School of Law and Lincoln Law School. Page 7 of 32

The Honorable Gustavo D. Villageliu served as a Board of Immigration Appeals Member from July 1995 to April 2003. He then served as Senior Associate General Counsel for the Executive Office for Immigration Review until he retired in 2011, helping manage FOIA, Privacy and Security as EOIR Records Manager. Before becoming a Board Member, Villageliu was an Immigration Judge in Miami, with both detained and non-detained dockets, as well as the Florida Northern Region Institutional Criminal Alien Hearing Docket 1990-95. Mr. Villageliu was a member of the Iowa, Florida and District of Columbia Bars. He graduated from the University of Iowa College of Law in 1977. After working as a Johnson County Attorney prosecutor intern in Iowa City, Iowa he joined the Board as a staff attorney in January 1978, specializing in war criminal, investor, and criminal alien cases.

HERE’S A SUMMARY OF OUR ARGUMENT:

ARGUMENT………………………………………………………………………………………………………………… 7

I. Immigration Judges and the Board have inherent and delegated authority to order administrative closure in a case ……………………………………………………………………………… 7

A. Federal courts have recognized that judges possess an inherent authority to order administrative closure………………………………………………………………………… 8

B. Regulations establishing and governing Immigration Judges ratify their inherent authority to order administrative closure. …………………………………………. 9

II. The Board’s decisions in Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), and Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017), articulate the appropriate standard for administrative closure……………………………………………………………………….. 13

A. The legal standard set forth in Avetisyan and W-Y-U- gives the Immigration Judge the correct degree of independence in deciding motions for administrative closure. ……………………………………………………………………………… 13

B. The facts and disposition of the case at bar show that the legal standard under Avetisyan and W-Y-U- is working correctly. ………………………………………………… 16

III. Fundamental principles of administrative law hold that the Attorney General cannot change the regulations that grant this authority without proper notice and comment rulemaking. ……………………………………………………………………………………………………….. 18

A. Practical docket management considerations weigh in favor of retaining administrative closure. ……………………………………………………………………………… 19

B. Due process considerations also weigh in favor of retaining administrative closure. …………………………………………………………………………………………………… 21

IV. Options such as continuances, dismissal without prejudice, and termination without prejudice, are suboptimal as compared to administrative closure. …………………………….. 22

V. There is no reason to attach legal consequences to administrative closure. ………………… 25

FINALLY, HERE’S THE COMPLETE BRIEF FOR YOUR INFORMATION AND READING PLEASURE:

Former IJs and Retired BIA Members – FINAL Castro-Tum Brief

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  • Thanks again to all retired my colleagues. What a great opportunity to “reunite online” in support of a critically important cause affecting the American Justice System!
  • Special thanks to Judge Jeffrey Chase for spearheading the effort and getting all of us together!
  • “Super Special Thanks” to the amazing Steven H. Schulman, Partner at Akin Gump DC and to Akin Gump for donating your valuable time and expertise and making this happen!

PWS

02-17-18