Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
Star Chamber
Style
We at CLINIC read this today. The terrible aspects of this proposed rule include seeking to:
- Overrule Arrabally
- Require motions to reopen/reconsider to include a statement concerning whether the noncitizen has complied with their duty to surrender for removal. If the noncitizen has not done so, that will be considered a very serious unfavorable discretionary factor.
- Disallow reopening based on a pending USCIS application, stating that if a motion to reopen or reconsider is premised upon relief that the immigration judge or the BIA lacks authority to grant, the judge or the BIA may only grant the motion if another agency has first granted the underlying relief. Neither an immigration judge nor the BIA may reopen proceedings due to a pending application for relief with another agency if the judge or the BIA would not have authority to grant the relief in the first instance.
- Allow immigration judges and the BIA to not automatically grant a motion to reopen or reconsider that is jointly filed, that is unopposed, or that is deemed unopposed because a response was not timely filed.
- Define termination and explains that termination includes both the termination and the dismissal of proceedings, wherever those terms are used in the regulations.
- Assess that assertions made in the motions context that are “contradicted, unsupported, conclusory, ambiguous, or otherwise unreliable” do not have to be accepted as true.
- Clarify that an adjudicator is not required to accept the legal arguments of either party in a motion to reopen or motion to reconsider as correct.
- Codify that assertions made in a filing by counsel, such as a motion to reopen or motion to reconsider, are not evidence and should not be treated as such.
- Prohibit the Board or an immigration judge from granting a motion to reopen or reconsider unless the respondent has provided appropriate contact information for further notification or hearing.
- Specify that neither an immigration judge nor the BIA may grant a motion to reopen or reconsider for the purpose of terminating or dismissing the proceeding, unless the motion satisfies the standards for both the motion, including the new prima facie requirement of this proposed rule, and the requested termination or dismissal. (citing to S-O-G- & F-D-B-, 27 I&N Dec. 462 (A.G. 2019) (holding that the authority to dismiss or terminate proceedings is constrained by the regulations and is not a “free-floating power”)).
- Codify Matter of Lozada requirements and makes clear that “substantial compliance” is insufficient, plus adds additional onerous requirements (e.g. state bar complaint AND a complaint to EOIR disciplinary counsel is required).
- Require respondents to first file a stay request with DHS and have DHS deny it before they can file a stay request with EOIR.
A few bright spots:
- It mostly gets rid of the departure bar, though it does still contain a withdrawal provision based on a noncitizen’s volitional physical departure from the United States while a motion is pending.
- It makes it clearer that you can file an IAC claim based on the ineffective assistance of a notario.
- Considers the that new asylum application would be considered filed as of the date the immigration court grants the motion to reopen.
Thank you,
Michelle N. Mendez (she/her/ella/elle)
Director, Defending Vulnerable Populations Program
Catholic Legal Immigration Network, Inc. (CLINIC)
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Peter Margulies writes:
Apart from the modest bright spots you mention, this is a pernicious rule that would curb noncitizens’ access to precious relief. It’s sobering to see the single-mindedness with which the current administration has attacked the precious remedy of asylum, such as the horrific asylum bars enjoined by ND CA Judge Susan Illston. H/t to profs who signed the amicus in Pangea Leg. Servs. v. DHS on which Shoba Sivaprasad Wadhia of Penn State, Susan Krumplitsch of DLA Piper & I served as co-counsel–we’ll be reaching out again soon for the CA9 round on that case & Nat’l Ass’n of Manufacturers v. DHS (the nonimmigrant visa ban challenge).
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Thanks, Michelle and Peter, for the continuing excellence of your work!
But, let’s face it, this problem isn’t going to be solved by commenting and even suing. It will only be solved if, and when, the Biden Administration evicts the dangerous, scofflaw, deadly Clown Show 🤡 @ EOIR HQ, including the entire BIA, and replaces it with folks like you and your NDPA fellow experts and fearless fighters for justice!
I watched this show before, to lesser degrees! Far, far too many times!
Don’t miss the point here, friends! Briefs, comments, law suits, and op-eds are nice. But, without effective total outrage and actual political intervention directed at the incoming “powers that be” in the Biden Administration, it’s going to be be a repeat of 2008!
The deadly EOIR Clown Show happily and arrogantly march on killing folks, distorting the law, and implementing the Miller agenda, giving the middle finger to due process, and we (mostly YOU, since I’m retired) will remain on the outside suffering, risking heath, safety, and sanity, and once again ineffectively bitching and moaning.
Sally Yates as a leading contender for AG is NOT, I repeat NOT, good news. I was on the “inside” at EOIR during the Lynch-Yates debacle.
She never lifted a finger to stop Aimless Docket Reshuffling, Family Detention, children going unrepresented, indefinite detention, incompetent Immigration Court management, biased “judicial” selections that effectively excluded private sector experts, educators, and advocates like YOU, and intentional skewing of the law by the BIA against Central American asylum seekers.
She might have spoken out against private detention of criminals, but not so much when it came to substandard private detention of innocent families with children whose “crime” was seeking asylum through our legal system. Really, how outrageous can it get! Yates helped establish the “New American Gulag” (“NAG”) that Miller & Co. have so gleefully and unlawfully expanded and weaponized!
She and her boss, Lynch, never bothered to “connect the dots” between civil rights and the legal rights and humanity of immigrants and asylum seekers. There can be no “equal justice under law” in America until the rights and humanity of immigrants and asylum seekers are upheld against “Dred Scottification” and intentional “dehumanization.”
For Pete’s sake, folks, during the Obama immigration disaster, holdover GOP right-wing operatives @ EOIR were rewriting the precedents in favor of their restrictionist agenda while YOU and others like you in the NGO and advocacy community were totally shut out, not given the time of day, and forced to spend eight wasted years in “damage control” rather than rolling out a progressive human rights, due process, practical problem solving agenda that would have saved lives (and, perhaps, not incidentally, created more USCs).
I’ve done what I can. I’ve written, I’ve agitated, I’ve given speeches, I’ve spoken to the Transition Team, written to my Democratic legislators, signed comments, amicus briefs, published my “mini essays,” and riled up and tried to inspire every student I can reach for the NDPA.
But, I’m pretty much at my wit’s ends watching the fecklessness and political ineptitude of the immigrant advocacy, human rights, and NGO communities! We were the backbone of the resistance to tyranny over the last four years and a key force in the Biden victory.
If we (YOU) don’t exercise some real political muscle with the incoming Administration NOW, the next four years are going to be just as grim, maddening, deadly, and disastrous for migrants (and their advocates, YOU) as the preceding two decades! We need the experts from the NDPA on the inside, calling the shots, not sitting in the waiting room while lesser talents cluelessly play out the game behind closed doors! Human lives and human dignity depend on the NDPA getting to play and lead!
It’s not rocket science! But, it does involve political will, and some effectively applied political outrage!
When you read about folks like Sally Yates and Jeh Johnson (both complicit in past human rights disasters) getting serious consideration for AG, and read that the Biden DOJ agenda is all about civil rights (what, indeed, are immigrants’, asylum seekers’, and humans’ rights, if not civil rights?) and criminal justice reform (not going to happen as long as “Dred Scottification” of immigrants is allowed to continue) with ZERO mention of ousting the EOIR kakistocracy and radically reforming the Immigration Court into a progressive, due-process, human rights model judiciary of the future (should be JOB #1 @ DOJ), you know that our message is NOT being heard, nor is it being taken seriously, by the “political powers that be” in the incoming Administration!
Get outraged, get mad, speak up, speak out, act up, sue, protest, raise Hell until somebody on the incoming team pays attention to the biggest (entirely fixable, but only with will and the right people) crisis in our failing justice system!
It’s going to take the new faces and better thinking of the NDPA, not the same folks who failed to fix the system in the past and swept life-destroying problems under the carpet, to get the job done!
If nothing else, we owe it to the migrants who have lost their lives, loved ones, and/or seen their futures needlessly trashed by the last three Administrations to stand up for due process, justice, and human dignity for everyone in America!
Due Process Forever!
Best wishes and Happy Thanksgiving,
PWS😎🗽⚖️
11-26-20