"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.
⚖️🗽 NDPA SUPER HERO 🦸🏻♀️MICHELLE MENDEZ BESTS BIA ON MTR IN 5TH — Ludicrous EOIR Decision Would Have Required Individual To Travel From Portland, OR to El Paso, TX For No Particular Reason! — No Wonder Garland’s Inept & Biased “Courts” Are Building Unnecessary Backlog @ Record Pace! 🤮
CAUTION: You are about to enter AG Merrick Garland’s “Twilight Zone” — where “judges” operating in a parallel universe make surreal decisions without regard to facts, law, or common sense applicable in this world! The Twilight Zone Billy Mumy 1961.jpg :PHOTO: Public Realm
Another timely report from Dan Kowalski @ LexisNexis:
“Perez-Vasquez is correct that the BIA erred by failing to address key evidence. See Cabrera v. Sessions, 890 F.3d 153, 162 (5th Cir. 2018). Specifically, the BIA did not consider several factors he raised in his motion to reopen as to whether exceptional circumstances prevented his appearance at his removal hearing, including evidence of: (1) Perez’s multiple attempts to contact both the Portland and El Paso immigration courts; (2) the fact that he filed two change of address forms because the El Paso immigration court sent the notice of hearing to the wrong address after he filed his first one; (3) the fact that his hearing was set in El Paso—where his son was detained—as opposed to Portland despite informing officials that he was going to reside in Oregon; (4) his financial constraints in travelling to El Paso with three-days notice. See Matter of S-L-H- & L-B-L-, 28 I. & N. Dec. 318, 321 & n.4 (BIA 2021); see also Magdaleno de Morales v. INS, 116 F.3d 145, 148 (5th Cir. 1997) (considering whether alien attempted to contact the immigration court prior to hearing). Additionally, the BIA failed to address evidence of Perez’s regular check-ins with immigration officials and his diligence in filing a motion to reopen, which tend to show an incentive to appear. See Matter of S-L-H- & L-B-L-, 28 I. & N. Dec. at 321. … Perez-Vasquez’s petition for review is GRANTED in part, DISMISSED in part, and DENIED in part. His case is REMANDED to the BIA for the limited purpose of considering—in light of the totality of the circumstances of his individual case—whether exceptional circumstances prevented his appearance at his removal hearing.”
[Hats off to NIPNLG Director of Legal Resources and Training Michelle N. Méndez!]
Michelle N. Mendez, ESQ Director of Legal Resources and Training National Immigration Project, National Lawyers Guild PHOTO: NIPNLG
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The facts of this case are somewhere out there in the “twilight zone.” Would any other tribunal in America waste two decisions denying an individual a fair hearing in this situation?
But, sadly, it’s what we have come to expect from a failing organization that is more interested in denying the right to be heard than in conducting hearings! Of course, EOIR is building record backlogs with “Aimless Docket Reshuffling,” lousy leadership, bad, often anti-immigrant, jurisprudence, and infinite tolerance for substandard performance within its ranks! Enough!
Congratulation Michelle, my friend, to you and your all-star team over at NIPNLG. Perhaps the worst mistake that Garland has made as AG was not immediately “cleaning house” at EOIR and appointing folks like Michelle and others from the NDPA to fix the system: At long last, bring practical scholarship, creative thinking, “experience in the trenches,” and an unswerving commitment to due process into a dysfunctional organization and “take names and kick tail” of those judges and others who are still “with” the mindless, immoral, counterproductive, and wrong-headed “any reason to deny/courts as a soft deterrent” approach of the former Administration.
The EOIR system needs real, dynamic intellectual leaders and widely-respected, innovative, courageous “practical scholars” like Michelle! A few such folks exist in today’s EOIR. But, they are essentially buried in the “forest of intellectual and moral deadwood” that Garland has not yet cleared out!
We are well into the Biden/Harris Administration; but, bad and poorly qualified judges and weak or inept administrators from the Trump and Obama Administrations (or even Bush II) are still wreaking havoc on American justice and threatening our democracy.
By contrast, if not invited to fix the broken EOIR system “from the inside” Michelle and the other members of the NDPA are going to force change from the outside! You can count on it! They will keep at it until this dysfunctional, unfair, and mal-administered system either reforms or collapses under the weight of its own incompetence, cruelty, inefficiency, and just plain stupidity!
Consistently getting these cases right (an MTR, for Pete’s sake) isn’t “rocket science.” A competent IJ would have taken about 5 minutes or less to mark this “granted” and change venue to Portland. A competent appellate tribunal would have reversed and rocketed it back to the IJ with instructions to “cut the BS.”
But, it continues to be elusive for Garland’s “gang that can’t shoot straight!” This system “coddles” poorly performing judges at both levels!
Meanwhile, they “throw the book” at desperate individuals trying their best to navigate EOIR’s broken, irrational, and intentionally “user unfriendly” parody of a “court system.” It is truly the “Twilight Zone of American Justice!”
Think of it: Four years, three tribunals, at least five Federal Judges, and a bevy of lawyers and clerks have spent time on this case. And, EOIR is no nearer to getting to the merits than the day the NTA was issued! This system needs “practical problem solvers” like Michelle, NOT “stuck in the mud” bureaucrats masquerading as judges, professional judicial leaders, and role models.
Tell Garland it’s time for a better, smarter approach to justice at EOIR! The real talent is out here! What’s he waiting for?
