Has Retired U.S. Immigration Judge Wayne Iskra’s Famous “Two Taco Rule” For Material Support Scored A Comeback? — Recent Unpublished BIA Seems To Be “Channeling Iskra” — And, That’s A Good Thing!

My good friend and esteemed retired colleague Judge Wayne Iskra of the Arlington Immigration Court used to apply a basic common sense rule: handing over your lunch bag with a couple of tacos (or a ham sandwich) or the equivalent would not be considered “material” support. I don’t remember him ever getting reversed on it; perhaps nobody wanted to appeal. I also used it with success during my time in Arlington.

Now, it seems like a BIA panel is thinking along the same lines in an unpublished opinion written by Appellate Immigration Judge John Guendelsberger for a panel that also included Chairman/Chief Appellate Immigration Judge David Neal and Appellate Immigration Judge Molly Kendall Clark.

Read the entire, relatively short, opinion here.

BIA Dec. 5-18-17_Redacted

Seems that this is just the type of important issue on which the BIA should issue a precedent decision. I’m not sure that all BIA panels are handling this issue the same way.

Thanks to Professor Stephen Yale-Loehr at Cornell Law and Dan Kowalski over at LexisNexis for sending this my way.

PWS

05-30-17

 

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Gus Villageliu
Gus Villageliu
7 years ago

Guendelsberg, David Neal and Molly. As good as it gets.
Although Molly became a BIA member 2016, all of us know she wrote the most important BIA cases ever: Mogharrabi , Chen (1989), Herrera (1981), McKee (1980), Healy and Goodchild (1979), and many more.

Pardon me John and David while I rave about our Molly. She is the BIA’s own John Madison whose work before becoming President writing the US Constitution, and explaining it in the Federalist Papers will always overshadow everything else anyone can also accomplish.

Gus Villageliu
Gus Villageliu
7 years ago

How Molly wrote Mogharrabi illustrates the old BIA, a/k/a Milhollan Best Practices at its best.
The US Supreme Court had just decided Cardoza-Fonseca which from our adjudicators perspective, required a lower likelihood of persecution (the famous one lion/10 doors) reasonable man test who would not open any of the 10 doors. Dave Holmes asked our staff to search for a case that would help our adjudicators apply Cardoza-Fonseca objectively, so BIA looked for cases that added objective new facts, i.e. not simply an identical Nicaraguan easily pigeonholed as Cardoza junior. We all looked per DBH’s request.

Molly liked Mogharrabi, then in my pile because it was an Iranian with a WFF per the new test, without being pigeon holed as typical Iranian case either. Unlike most Iranian cases, the incident that Mogharrabi detailed took place at an Iranian consulate in the USA was clear and convincing.

BIA had already explored levels of required proof in Acosta exceptionally, albeit for the “more likely than not” withholding standard. Board Members Mary Dunn and Phil Morris worked on it. To make a long story shorter, Molly then convinced the BIA that what would work best for Mogharrabi was not reinventing the wheel, but instead changing one word in Acosta! Simply remove the word “clearly” from the Acosta test. The BIA approved unanimously. That edit job certainly beats any other I ever saw anywhere since 1978.
Happy Birthday Molly, a few days late!
G

Gus Villageliu
Gus Villageliu
7 years ago

As to adjudicators applying Mogharrabi, etc. Yogi Berra said it best. If they don’t want to come, you can’t stop them!