DOJ POLITICOS SEEK TO “SPEED UP” A CAPTIVE COURT SYSTEM ALREADY STRUGGLING WITH THE BASICS OF DUE PROCESS FOR MIGRANTS: 4th Cir. Has To Instruct BIA On Applying The Burden Of Proof In Removal Proceedings – Mauricio-Vasquez v. Whitaker

It was DHS’s burden to affirmatively prove (by clear and convincing evidence) that Mauricio-Vasquez last entered in 2000 without inspection, and was therefore not admitted until 2008, because this determines whether his 2012 felony abduction offense fell within the five-year window for removability. But here, the record contains essentially unrebutted evidence showing that Mauricio-Vasquez was in Peru from 1999 to 2001, and that he presented himself for inspection and was allowed to enter the United States at Reagan National Airport in 2002 (whether on a visa or otherwise).5 In our view, any reasonable adjudicator would be compelled to conclude that DHS failed to prove Mauricio-Vasquez was admitted in 2008.6 He is therefore not removable on the ground alleged by DHS.

For the foregoing reasons, we grant Mauricio-Vasquez’s petition for review.

Although the ordinary practice is to remand to the agency for further proceedings consistent with our disposition, we conclude that such proceedings “would serve no purpose” here. Medina-Lara v. Holder, 771 F.3d 1106, 1118 (9th Cir. 2014) (quotingKarimi v. Holder, 715 F.3d 561, 565 (4th Cir. 2013)). The Board remanded this case once before, after the Immigration Judge determined that DHS had failed to satisfy its burden of proof. Yet despite being allowed to fully develop the record on remand, DHS has again failed to carry its burden. Under the circumstances, we decline to give DHS a “third bite at the apple.” Id. (quoting Siwe v. Holder, 742 F.3d 603, 612 (5th Cir. 2012)).

We therefore vacate the order of removal, and remand to the agency with instructions to grant Mauricio-Vasquez’s motion to terminate removal proceedings.

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Reminds me of a BIA colleague who once wrote in a dissent from a much remanded visa petition case that it was “time to put an end to this pathetic attempt at adjudication by the District Director.”

Fixing the glaring quality and due process problems in the Immigration Court system should be “priority 1.” Instead, the emphasis from the politicos is on artificially trying to make a broken system go faster and churn out more potentially erroneous decisions.

Time to get this court system out of the clutches of the DOJ so that it can be fixed and function as a court should.

PWS

12-17=18