"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
“We conclude that the Board erred in three ways. First, the Board erred in overturning the grant of asylum. The Board decided that Mr. Villegas-Castro had not filed a new application. But if he hadn’t filed a new asylum application, he wouldn’t need to show a material change in circumstances. And with the remand, the immigration judge enjoyed discretion to reconsider the availability of asylum. Second, the Board erred in rejecting the immigration judge’s credibility findings without applying the clear-error standard. The immigration judge concluded that Mr. Villegas-Castro’s conviction had not involved a particularly serious crime. For this conclusion, the immigration judge considered the underlying facts and found Mr. Villegas-Castro’s account credible. The Board disagreed with the immigration judge’s credibility findings but didn’t apply the clear-error standard. By failing to apply that standard, the Board erred. Third, the Board erred in sua sponte deciding that Mr. Villegas-Castro was ineligible for (1) withholding of removal or (2) deferral of removal under the Convention Against Torture. The Board reasoned that the immigration judge had already denied withholding of removal under federal law and the Convention. But the Board’s general remand didn’t prevent fresh consideration of Mr. Villegas-Castro’s earlier applications. So the Board erred in sua sponte rejecting the applications for withholding of removal and deferral of removal under the Convention Against Torture. We thus grant the petition for judicial review, remanding for the Board to reconsider Mr. Villegas-Castro’s application for asylum, to apply the clear-error standard to the immigration judge’s credibility findings, and to reconsider the applications for withholding of removal and deferral of removal under the Convention Against Torture.”
[Hats off to Harry Larson, formerly of Quinn Emanuel Urquhart & Sullivan, LLP, Chicago, Illinois (Andrew H. Schapiro, Quinn Emanuel Urquhart & Sullivan, LLP, Chicago, Illinois, and Keren Zwick and Tania Linares Garcia, National Immigrant Justice Center, Chicago, Illinois, with him on the briefs), on behalf of the Petitioner, and Simon A. Steel, DENTONS US LLP, Washington, D.C., and Grace M. Dickson, DENTONS US LLP, Dallas, Texas, filed a brief for Amici Curiae, on behalf of Petitioner!]
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A prime example of the “any reason to deny culture,” that Garland has allowed to continue, at “work” — although it doesn’t appear the BIA actually did any “work” here beyond insuring that the bottom line in the staff attorney’s draft was against the asylum seeker!
As I raised yesterday, how is it that this fatally flawed group continues to get “Chevron deference” from the Article IIIs?
Also, why isn’t every group of legal professionals in America “camped” on Judge Garland’s doorstep @ DOJ demanding meaningful change @ EOIR as the degradation of American justice and demeaning of human lives continue largely unabated?
The majority concludes that because the phrase “in relation to obstruction of justice”
in § 1101(a)(43)(S) is ambiguous, the Board of Immigration Appeals’ (“BIA”) renewed interpretation of this provision is due Chevron deference. The majority also concludes that the BIA’s interpretation of “reasonably foreseeable”—in the context of before an investigation or proceeding—is reasonable. Because, in my view, the phrase is not ambiguous, the BIA is not due Chevron deference. However, even if § 1101(a)(43)(S) is ambiguous, the BIA’s conclusion that a formal nexus to an ongoing investigation is not required—based solely on the express exception in § 1512 and the catchall provision that it wrongly interpreted—is unreasonable. Thus, I disagree that Petitioner’s conviction of “Accessory After the Fact to a Felony,” under § 18.2–19 of the Virginia Code, is a categorical match with the generic offense of § 1101(a)(43)(S). For these reasons, I respectfully dissent.
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Of interest:
The “previous interpretation” discussed here, that the BIA subsequently “ditched” in favor of a more pro-DHS one, is Matter of Espinoza- Gonzalez, 22 I. & N. 889 (B.I.A. 1999), a “Schmidt Era” en banc decision written by Judge Ed Grant in which I joined.
64 pages of arcane discussion and citations from three Circuit Court of Appeals’ Judges who cannot agree on the result shows the continuing disingenuous absurdity of a system that claims that “unrepresented” immigrants receive due process — many of these cases require not only lawyers, but great lawyers with expertise in immigration, criminal law, and statutory interpretation to achieve fair resolution;
Both the majority and the dissent “talk around” a major problem in the misapplication of “Chevron deference” to the BIA: In recent years, the BIA invariably adopts “any interpretation” offered by the DHS over better interpretations offered by respondents and their lawyers — this is a “rigged system” if there ever was one. For Article III Courts to “legitimize” the bogus application of Chevron by a non-expert tribunal that views itself as an extension of DHS Enforcement is a disgraceful dereliction of judicial duty!
Respondent Access Portal: EOIR’s Respondent Access allows Respondents to file forms with the immigration court and the Board of Immigration Appeals.
AO Covid Update: USCIS has updated the public website to reflect that field offices are expanding occupational capacities. Beginning November 29, 2021, the New York Asylum Office (ZNY) will be resuming in-person interviews, with the officer and the applicant’s party (including the attorney) in the same room.
Law360: The Biden administration’s proposed rule to reinforce the Deferred Action for Childhood Arrivals, or DACA, program has attracted more than 9,300 responses ahead of Monday’s deadline for public comments, with many calling for broader changes than the regulations set out.
NYT: The City Council is planning to approve a bill that would allow more than 800,000 noncitizen New Yorkers to register as members of political parties and vote in municipal elections, provided they are green card holders or have the right to work in the United States. The measure is expected to be approved on Dec. 9 by a veto-proof margin. It would allow noncitizens to vote in local elections, and would not apply to federal or state contests.
Reuters: The Biden administration and Mexico have not yet agreed to restart a Trump-era program obliging asylum seekers to await U.S. court hearings in Mexico, because certain conditions must first be met, two Mexican officials said on Wednesday. News outlet Axios reported earlier that returns under the program officially known as the Migrant Protection Protocols (MPP) could restart as soon as [this] week.
WaPo: Despite mounting concerns about discriminatory policing, the Trump administration aggressively recruited local law enforcement partners and courted sheriffs who championed similar views on immigration policy, according to dozens of internal ICE emails obtained by The Post.
Reuters: Some 2,000 migrants and asylum seekers departed the southern Mexican city of Tapachula near the Guatemalan border overnight on Sunday in the latest in a series of caravans setting out for the United States.
WaPo: Record numbers of Venezuelan migrants have been crossing into the United States in recent months, posing a new border challenge for the Biden administration and raising concerns that more of the nearly 6 million people displaced from the South American nation could be heading north.
AP: He said he repeatedly told authorities he was American but was rebuffed by immigration agents, according to the suit. Bukle, who derived citizenship when he was 9 and his parents naturalized, was sent to the Mesa Verde Detention Facility in Central California for more than a month until an attorney got immigration authorities to verify his citizenship status and release him.
LexisNexis: SCOTUSblog case page for Egbert v. Boule, Docket No. 21-147 ” Issues : (1) Whether a cause of action exists under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics for First Amendment retaliation claims; and (2) whether a cause of action exists under Bivens for claims against federal officers engaged in immigration-related functions for allegedly violating a plaintiff’s Fourth Amendment right
Law360: A Mexican woman facing removal for using a fake Social Security number lost her case Monday when the U.S. Supreme Court declined to hear her arguments for why the offense shouldn’t disqualify her from receiving deportation relief.
AILA: The court held that the IJ erred in informing the pro se petitioner he was eligible for potential relief only under the Convention Against Torture (CAT), and in treating his conviction for drug trafficking as if it were a per se bar to withholding of removal. (DeCarvalho v. Garland, 11/17/21)
Law360: The Fifth Circuit on Monday upheld a ruling that a Mexican citizen who sought refuge in the United States because he is gay cannot remain in the country because the Mexican government “was able and willing to protect” him.
AILA: The court held that the BIA did not err in finding that the petitioner’s second motion to reopen for lack of notice was time and number barred under 8 CFR §1003.2(c)(2), because the petitioner had failed to inform the immigration court of his change in address. (Maradia v. Garland, 11/17/21)
AILA: The court upheld the BIA’s denial of asylum, finding that the Board did not err in holding that governmental changes in the Congo—namely, that the petitioner’s own political party had assumed power—made any future political persecution unlikely. (Mbonga v. Garland, 11/22/21)
LexisNexis: Elhady v. Bradley Maj. – “In short, when it comes to the border, the Bivens issue is not difficult—it does not apply. And district courts would be wise to start and end there.
Law360: A fractured Ninth Circuit panel on Tuesday undid a removal order against an Indonesian couple who say they fear persecution for their evangelical Christian beliefs, handing the parents of three a win on their third turn before the appeals court.
AILA: The court issued an order denying the rehearing en banc of Soto-Soto v. Garland, in which the court held that the BIA erred by reviewing the IJ’s decision de novo rather than for clear error. (Soto-Soto v. Garland, 11/18/21)
AILA: Where petitioner had filed a motion for reconsideration arguing that a recent Supreme Court ruling rendered his conviction no longer a “crime of violence” aggravated felony, the court held that the BIA did not abuse its discretion in denying equitable tolling. (Goulart v. Garland, 11/18/21)
AILA: The court held that the BIA failed to give reasoned consideration to the Sri Lankan petitioner’s claim that, as a Tamil failed asylum seeker, he had a well-founded fear of future persecution, and thus remanded his asylum and withholding of removal claims. (Jathursan v. Att’y Gen., 11/17/21)
AILA: The BIA found that the respondent’s conviction for carjacking under section 215(a) of the California Penal Code is categorically a conviction for an aggravated felony crime of violence. Matter of A. Valenzuela, 28 I&N Dec. 418 (BIA 2021)
AILA: The White House issued a proclamation suspending and limiting the entry for certain immigrants and nonimmigrants who were physically present in countries where the Omicron variant of COVID-19 has been detected. Effective 11/29/21.
AILA: DHS issued updated guidance on the enforcement of civil immigration law. Guidance is effective on 11/29/21 and will rescind prior civil immigration guidance.
AILA: USCIS issued a policy alert that it is incorporating and superseding existing guidance into the USCIS Policy Manual addressing topics in the context of general adjudications, including evidence, sworn statements, and adjudicative decisions.
AILA: EOIR issued guidance to address administrative closure in light of Matter of Cruz-Valdez. Where a respondent requests administrative closure, and DHS does not object, the request should generally be granted and the case administratively closed. Guidance effective as of 11/22/21.
AILA: EOIR announced it will open a new immigration court in Santa Ana, California, on November 29, 2021. The court will include 22 immigration judges. At the time of opening, three judges will hear cases transferred from the Los Angeles – Olive Street court. EOIR has notified the affected parties.
AILA: DOS stated that the guidance to posts for the prioritization of consular services issued in November 2020 has been rescinded. Embassies and consulates have discretion on prioritizing visa appointments among the range of visa classes.
