The issue is whether an in absentia removal order can be based on a statutorily defective notice. The panel followed the Supreme’s decision in Niz-Chavez and rejected the BIA’s conflicting decision in Matter of Laparra. In other words, the panel required the Government to follow the statute, a process known as “complying with the law.” This sent some of this most conservative circuit’s most far-right judges over the edge. Here’s the en banc decision:
https://www.ca5.uscourts.gov/opinions/pub/20/20-60008-CV1.pdf
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- Credit Dan Kowalski over at LexisNexis for the “food fight” characterization.
- The scofflaw GOP dissenters cited “deference” to the Executive, something they have pointedly refused to apply to Biden Administration precedents and policies favoring migrants.
- The majority says: “[The BIA] flies in the face of the Supreme Court’s Pereira decision, which Laparra ignored.”
- Incredibly, Garland is on the “wrong side” of this controversy, defending the legally incorrect misinterpretation of his “Trump holdover” BIA!
- The statutory requirement at issue: That a “Notice to Appear” before the Immigration Court inform the individual of the time and place of the hearing. How difficult does that sound? Not very, unless you are bumbling bureaucrat at DHS and EOIR who chose, even after the Supremes’ initial decision, to violate that decision and the statute in almost 100% of the cases instituted before the Immigration Courts!
- Kudos to the 3 Trump appointees and one Bush II appointee who joined 3 Obama appointees and 2 Clinton appointees to uphold the rule of law and thwart their GOP scofflaw colleagues.
- Interestingly, and perhaps mildly encouraging, the “Trump appointees” split 3-3 on this one.
- Apparently nothing drives a wedge between conservative judges like the scary prospect of following the law when it gives immigrants a win!
- Future ambitious academic study: How much of the current out of control backlog can be traced to the Government’s, and particularly the BIA’s, inept handling of straightforward notice requirements set forth in the statute?
- There’s a reason why I keep referring to Garland’s out of control EOIR backlogs as “largely self-created,” albeit in fairness not exclusively by him. The Trump Administration, and to a lesser extent the Obama Administration, also “excelled” at “Aimless Docket Reshuffling” driven by “prioritizing” improper political goals over due process, fundamental fairness, quality, and practical scholarship in the Immigration Courts.
🇺🇸Due Process Forever!
PWS
04-21-22