"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt and Dr. Alicia Triche, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
A HUGE congratulations to RMIAN and Laura Lunn on today’s 10th Circuit win in Arostegui-Maldonado v. Garland. I was lucky enough to be in the court at oral argument to watch Laura expertly navigate tough questions from a difficult panel and today the published decision came out holding (1) that the PFR filed within 30 days of the BIA order affirming the IJ denial of relief in withholding-only proceedings is timely filed and (2) that the IJ and BIA “defied logic and law” in misapplying the under-color-of-law element of the CAT claim, requiring remand.
Incredible work to Laura and all others involved!
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Folks, the IJ’s “reasoning to denial” in this case was beyond totally absurd! It’s an example of the type of judicial misconduct and incompetence that still flourishes in parts of Garland’s “any reason to deny” dysfunctional EOIR!
AG Merrick Garland thinks it’s fine to play “roulette” with human lives in his arbitrary, capricious, and dysfunctional EOIR. Those trying to help his victims obtain justice disagree! Is this REALLY the way things ran when Garland was on the D.C. Circuit? If not, why is it “good enough for Immigration Court?” IMAGE: tvtropes
After more than two years of the Biden Administration under Garland, we still have not seen the type of systemic, merit-based “house cleaning” of biased and incompetent judges and the replacement of deadwood (and worse) at the totally unjust and dysfunctional EOIR that could and should have been a “day one priority” for Garland’s DOJ.
There is simply no excuse for this type of disingenuous, life-threatening performance by both EOIR and OIL under Garland’s deficient leadership! There are literally thousands of qualified experts out here who could have done a better job than the IJ and the BIA in this case!
It’s Garland’s job to get better judges on the EOIR bench — judges who will be fair, impartial, due-process focused, and experts in all facets of immigration and human rights laws! His failure to do his job is undermining our justice system and endangering human lives! How is this “OK?”
In the “real world,” folks who “can’t do their jobs” find themselves “out of a job!” Why is Garland’s DOJ an “exception,” with lives and the future of American justice on the line? Isn’t it past time to “just say no” to continuing to treat the ongoing national disgrace at EOIR as “just an afterthought” in the elitist, disconnected world of Garland’s DOJ, where the human lives being destroyed by DOJ’s failures are treated as “somebody else’s problem?”
“Lady Injustice” has found a home at Garland’s dysfunctional EOIR! Black Mauritanians and other asylum seekers of color find that the scales of justice are systemically weighted against them when on trial for their lives in AG Garland’s “courts!” Public RealmDanae King Faith & Values & Immigration Reporter Columbus Dispatch
“This data further confirms concerns raised about implicit racial and other bias in credibility determinations in US asylum adjudications,” the report states.
The report notes that Black asylum seekers face different treatment in the immigration system than others, including longer than average detention times, trouble finding accurate and adequate interpreters, different treatment in court, lack of access to counsel, purposefully rushed proceedings, biased judges, wrongful denial of asylum and more.
Lynn Tramonte has seen all those scenarios happen in Ohio.
“In immigration court, it’s almost like you’re guilty until proven innocent and they would rather err on the side of deporting a refugee who was tortured than granting asylum to someone who might be lying,” said Tramonte, director of the Ohio Immigrant Alliance, a group of Ohio immigrants and citizens who work to protect the dignity and rights of all through activism.
Nemecek has also seen judges and government attorneys “team up on (immigrants) and ask all kinds of questions and find them not credible.”
From 2002 to 2022, 713 Mauritanians went before immigration judges in Cleveland, and 443 were denied asylum. Another 28 had another form of relief, such as withholding of removal, and 242 were granted asylum, according to TRAC.
Tramonte wishes judges would do more research on the nations where asylum seekers are coming from.
“They have zero knowledge of documents from other countries or even what it’s like to be tortured,” she said.
A spokesperson for the Executive Office for Immigration Review (EOIR) disputed those claims.
. . . .
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Read Danae’s full article at the link!
“Courtside” and others have been raising these issues for a long time! Yet, Garland has neither spoken out nor taken action to “clean up” courts that every expert would say are “broken” and need major changes, including better-qualified judges who have true expertise in asylum and human rights!
Assistant Attorney General for Civil Rights Kristen Clarke is totally “MIA” on this serious issue and on the racially-driven travesties in DOJ’s “wholly-owned” court system, in immigration detention centers, and at the Southern Border! Associate AG Vanita Gupta, once a civil rights icon, has “vaporized” on perhaps the biggest, potentially solvable, civil rights/racial justice issue facing America! What’s happening here?
I spent years doing Mauritanian asylum cases on the EOIR Ohio Docket (and, to a lesser extent, in the “Legacy” Arlington Immigration Court). Most were clear grants of asylum! Few were appealed by ICE! Almost none were reversed by the BIA! I doubt that conditions have improved materially since then.
Unfortunately, mistreatment of Black Mauritanian asylum seekers by EOIR is nothing new. It has a long and disreputable history going back decades.
In the late 1990’s, my now Round Table colleague Judge Lory Diana Rosenberg and I frequently dissented from wrong-headed denials of Mauritanian asylum claims by our BIA colleagues. See, e.g., Matter of M-D-, 23 I&N Dec. 1180, 1185, 1189 (Schmidt, Chairman, Rosenberg, Board Member dissenting), rev’d sub nom, Diallo v. INS, 232 F.3d 279 (2d Cir. 2000). There, the Circuit, in a decision written by Chief Judge Walker, agreed with many of the points raised by Judge Rosenberg and me in our respective dissents: “[T]he BIA failed to: (1) rule explicitly on the credibility of Diallo’s testimony; (2) explain why it was reasonable in this case to expect additional corroboration; or (3) assess the sufficiency of Diallo’s explanations for the absence of corroborating evidence.”
Judge Rosenberg and I were later “rewarded” by AG John Ashcroft by being “purged” from the BIA, along with a minority of other colleagues who had the temerity to stand up for the legal and human rights of migrants! Folks at EOIR “got the message” that standing up for immigrants’ rights and due process could be “career threatening!”
That, in turn, unleashed a crescendo of sloppy, anti-migrant, dehumanizing decisions emanating from EOIR. Things got so bad so fast that subsequent Bush II AGs Gonzalez and Mukasey were finally forced, under extreme pressure from the Article IIIs, to intervene and put a stop to the most glaring abuses.
But, in fact, the EOIR system never recovered from that debacle. From then on, the BIA has been largely a “captain may I rubber stamp” (credit “Sir Jeffrey” Chase) for DHS Enforcement and each Administration’s political agenda. It’s been a continuous downward spiral, with subsequent AGs either actively encouraging abuses of asylum seekers and other migrants or being “willfully indifferent” to the ongoing legal and human rights disasters on their watches.
It’s interesting how when the “powers that be” ignore abuses, they don’t go away. They just fester and get worse. Garland’s “what me worry” stewardship over EOIR is a classic example.
As for EOIR’s claim that they are providing IJs with “robust” asylum training, in the words of my friend, Kansas City attorney (and former Arlington intern) Andrea Martinez, “I call BS!” The proof is in the results!
My friend and Round Table colleague Judge “Sir Jeffrey” Chase puts it more elegantly:
In stating that the program is “robust” (i.e. fine as is), who among EOIR’s upper-level leadership is enough of an expert in the topic to make that determination? There are actually recent IJ hires with a great deal of expertise in asylum and CAT, but to my knowledge, they are not the ones creating or presenting the trainings.
EOIR’s asylum and CAT training remains insufficient, and the evidence of this can be found in the deluge of Circuit Court reversals, or even from simply reviewing hearing transcripts. Just compare the USCIS Asylum Officer training program with EOIR’s IJ training materials. A particular problem is the failure to properly train new IJs in the case law of the specific circuit in which they sit. Immigration Judges are largely left to their own devices to learn the law properly.
Another example of superior asylum training available “on the market” is that developed by Professor Michele Pistone (a true asylum expert who has taught and inspired generations of attorneys now serving in and out of government) at VIISTA Villanova. I am sure that EOIR could have arranged with Professor Pistone to create a “world class” asylum training program for both new and experienced IJs. Indeed, she would have been a logical choice for Garland to have recruited for a senior position at EOIR.
The talent to fix EOIR exists on the open market. However, EOIR can’t be fixed with the senior management team Garland has put, or in some cases left, in place.
In the meantime, the stunningly poor quality, blatant racial insensitivity, and inept judicial administration Garland tolerates at EOIR will continue to be a millstone around the neck of American Justice and the Democratic Party. To what depths Garland will drag both remains to be seen.
Garland’s dysfunctional and systemically biased Immigration “Courts” are a millstone around the neck for American Justice and Dems! Creative Commons license
Finally, where are progressive human and civil rights stalwarts like Sen. Corey Booker (D-NJ) on this issue? Why haven’t they demanded some accountability from Garland? And, whatever happened to our first African-American Veep Kamala Harris? Does she still exist? What’s more important than racial justice in “life or death courts” wholly controlled by her Dem Administration?
“Gerardo Caballero-Vega, a Mexican citizen, entered the United States in 1993 without admission or parole by an immigration officer when he was eight years old. He was removed to Mexico in 2019. Shortly after his removal, Caballero-Vega returned to the United States and applied for asylum, withholding of removal, and protection under the Convention Against Torture. Later that year, the Immigration Judge (“IJ”) granted his application for asylum, which the Department of Homeland Security (“DHS”) appealed to the Board of Immigration Appeals (“the BIA”). In 2020, the BIA vacated the IJ’s decision for clear error and ordered Caballero-Vega’s removal to Mexico. The following year, Caballero-Vega filed a petition for review in this court. We reverse the BIA’s vacation of the IJ’s decision and remand the case for further review. … Caballero-Vega became a criminal informant for the San Mateo County District Attorney in 2012. He reported to law enforcement on the drug, firearm, and human trafficking conducted by Nuestra Familia, a California prison gang, as well as the Norteño Gang, Nuestra Familia’s “foot soldiers” in the streets. R. Vol. I at 143. Following his informant work, he testified against Nuestra Familia members in criminal court. Caballero-Vega was placed in a witness protection program during and after his testimony. … On November 13, 2019, the IJ granted Caballero-Vega’s application for asylum, finding that he had established a well-founded fear of future persecution based on his membership in the group of “informants who have testified in court against gangs.” … DHS appealed the decision to the BIA. On December 15, 2020, the BIA sustained DHS’s appeal, vacated the IJ’s grant of Caballero-Vega’s asylum, and ordered Caballero-Vega’s removal to Mexico. Specifically, the BIA found that there was “clear error in the [IJ]’s finding that there’s a reasonable possibility that [Caballero-Vega’s] 2012 status as an informant and his 2013 or 2014 United States testimony against United States gang members will be a central reason for possible future harm to [him] upon removal to Mexico.” … We find insufficient the BIA’s explanation for its finding that the IJ’s decision is clearly erroneous. The fact that Caballero-Vega was not persecuted in Mexico is of little-to-no probative value here because he escaped before he could be identified by cartel members. Likewise, the fact that he was not threatened or harmed in the United States following his time as an informant is unhelpful because he was in witness protection for that entire period. Finally, the expert testimony cited by the IJ demonstrates that Mexican cartel members and United States gang members cooperate extensively, so the fact that Caballero-Vega testified against individuals based in the United States, not Mexico, is not dispositive. Thus, none of the reasons the BIA offers for vacating the IJ’s decision justifies the BIA’s finding of clear error. We remand Caballero-Vega’s case to the BIA to accept the IJ’s decision or to provide further justification for its finding that the IJ’s decision is clearly erroneous.”
Asylum was correctly granted in November 2019. 3.5 years later, the case is still kicking around because the wrong “judges” are on the BIA.
Ever wonder why EOIR has unmanageable backlogs? Even when the system works as it should and protection is granted at the initial level, the BIA and their “partners” at DHS Enforcement combine to screw it up! We need Article I!
Dems keep babbling about “Federal Court reform.” But, they can’t even achieve long-overdue progressive reforms to a court system they totally “own!”
Why won’t the Biden Administration govern in accordance with the humane, practical, legal values they ran upon, when it comes to human rights, immigration, and racial justice? Don’t kid yourself! Rather than being “expendable” or “negotiable,” THESE are the issues on which our democracy will eventually stand or fall! That’s something that the younger generation must focus on!
Sessions and Miller wasted almost no time in co-opting and weaponizing EOIR against asylum seekers, migrants, people of color, and even smearing and attacking those defending them. Evil though they were, they had passion and a plan for dehumanization, destruction, and undermining democracy!
Social justice in America needs passionate, brave, principled advocates and defenders! There are plenty of them “out here!” Indeed, My Round Table colleague Judge Ilyce Shugall and I are surrounded by them here at the VIISTA celebration and training at Villanova!
Villanova University President Rev. Peter M. Donohue, Villanova Law Dean Mark Alexander, Professor Michele Pistone, creator and founder of VIISTA Villanova and the CARES Clinic, the VIISTA and CARES alums who have come here from literally every corner of America to celebrate, teach and learn — THEY are passionate about social justice and are actively expanding and defending it. THEY are doing something about the number one immigration problem today — guaranteeing due process through effective representation — by training and turning out “accredited representatives,” highly skilled professional advocates who don’t necessarily have to be lawyers!
Professor Michele Pistone Villanova Law — Creator of VIISTA Villanova Program for training accredited representatives and building nationwide social justice networks. She is passionate about social justice. Why aren’t Biden Administration politicos?
As Father Donohue said at yesterday’s celebration, “‘Woke’ means social justice!” Amazing people have come here from the Southern Border where they work with asylum applicants on both sides of the border. Every day, they see the human trauma, racism, pain, and suffering caused by the Administration’s failure to innovate, lead, and stand up for human rights. These are the preventable human dramas and traumas that smug, ill-informed Administration “policy makers” run away from — they don’t have the courage to face and learn from those they abuse!
Values – human rights and legal rights — CAN’T EVER be “trumped” by “reelection concerns.” I might also add that the “Miller Lite” strategy followed by the Administration hasn’t found supporters or made them friends anywhere on the political spectrum! If you are going to make folks mad, why not at least be doing the right thing? Are competence, innovation, humanity, keeping campaign promises, and following the law REALLY political “losers” as Biden apparently believes? I doubt it!
The Biden Administration and many congressional Dems apparently lack passion and guts! Without the basic governing skills and integrity to undo the horrible human and systemic damage inflicted by Trump and institutionalize due process and fundamental fairness, the Dems are wandering in the social justice wilderness! No passion, no values, no expertise! Doesn’t say much for a party that promised to be a “socially just” alternative to anti-American Trumpist White Nationalism!
“The DOJ issues a hollow statement condemning FGM. But, when it comes to building on a 27-yr-old precedent to help gender-based refugees, they have been largely indifferent to suffering and the dire need for protection.” PHOTO: Creative Commons 4.0
Dan Kowalski from LexisNexis Immigration Community sent in this recent asylum victory from the Denver Immigration Court:
Hats off to Judge Burgie and Attorney Alexandra Katsiaficas for showing how effective advocacy and good judging can save lives and “move” cases at the “retail level” of EOIR.
This decision is comprehensive, straightforward, understandable, and logical. This is exactly the type of precedent that the BIA should be (but isn’t) issuing and enforcing on a consistent, nationwide basis! Why isn’t EOIR getting the job done under Garland?
While Judge Burgie didn’t cite Matter of A-R-C-G- on asylum based on domestic violence, she did cite a number of my “favorite precedents” from the long-gone but not totally forgotten “Schmidt-Board:” Matter of Kasinga, Matter of O-Z- & I-Z-, Matter of D-V-, and Matter of S-P-, as well as the BIA’s oft-cited but seldom followed “seminal” asylum case Matter of Acosta, which was the starting point for Kasinga and other favorable asylum precedents of the past.
Judge Burgie also cited and followed favorable 10th Circuit precedent. She got the “unwilling or unable to protect,” “internal relocation,” and “nexus” issues correct. She used the regulatory presumption based on past persecution effectively. Significantly, she also included a correct additional analysis of why this case, and others like it, should be granted based on “egregious past persecution” (“Chen grant”) even in the absence of a current well-founded-fear. Most of these cases should be “easy grants” preferably at the Asylum Office, but if not, at EOIR.
Instead, some IJs and many BIA panels “invent” reasons to deny that mock asylum law and distort the reality of conditions for women in the Northern Traingle and elsewhere!
I recently commented elsewhere on the irony of Garland’s DOJ issuing a “pro forma declaration” endorsing “Zero Tolerance for FGM Day,” while doing such a poor overall job of actually protecting those who have suffered that and other forms of gender based persecution. Action over hollow rhetoric, please!
Seems to me EOIR didn’t do a very good job of “building on the saving potential” of Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996), my “landmark” opinion finding that FGM could be a basis for granting asylum. Indeed, after the “Ashcroft purge” removed those of us BIA judges committed to protecting refugees suffering from gender based persecution, the BIA intentionally misconstrued Kasinga and shamefully tried to limit it.
So transparently horrible was this effort that one of Ashcroft’s Bush II successors, AG Mukasey, hardly a voice for progressive jurisprudence and women’s human rights, finally had to intervene to put a stop to the BIA’s deadly nonsense. See Matter of A-T-, 24 I&N Dec. 617 (A.G. 2008). This was only after after blistering criticism of the “post-purge” BIA’s disingenuous approach by some of Judge Mukasey’s “former Article III superiors” on the Second Circuit.SeeBah v. Mukasey, 529 F.3d 99, 124 (2d Cir. 2008) (“The BIA refers, in passing, to the act of female genital mutilation as “reprehensible,” . . . but its entirely dismissive treatment of such claims in these cases belies any sentiment to that effect.” Straub, Circuit Judge concurring).
Judge Staub’s criticism of the BIA’s shallow and disingenuous treatment of too many asylum claims, particularly those based on gender persecution, remains just as true today under Garland as it was then. “Throwaway lines” — basically “boilerplate” —disingenuously expressing sympathy, but then misconstruing facts and law to deny life-saving protection, are no substitute for competent, fair judging at EOIR!
More than a quarter-century after Kasinga, I still don’t see much commitment at DOJ/EOIR to consistently protecting women from gender-based persecution. That being said, some IJs, particularly (but not only) those with expertise gained by representing asylum seekers, like Judge Burgie, are doing a good job of applying Cardoza, Kasinga, A-R-C-G-, D-V-, O-Z-&I-Z-, the regulatory presumption, expert testimony, and an honest reading of country conditions to grant desperately-needed protection in gender-based cases. The BIA, not so much.
Also, while issuing this statement, DOJ is “sitting on” gender based regulations, promised by President Biden on “day 1” to be delivered by the Fall of 2021! Reportedly, there is considerable “Miller Lite” restrictionist opposition within the Administration to treating protection claims for gender-based refugees fairly, generously, and consistently. See, e.g., https://www.cbsnews.com/news/immigration-biden-asylum-limits-us-mexico-border-arrivals/.
Kind of makes me wonder what, if anything, Dems REALLY stand for when the chips are down, human lives are at stake, and courageous, informed, bold leadership is required! GOP White Nationalist nativist bullies are only too happy to express their disdain for the rights and contempt for the humanity of all vulnerable refugees. They specifically target women.
But, when it comes to standing up for the legal and human rights of asylum seekers, most of them already written into our laws, Dems often “hide underneath the table.” That’s particularly true of this Administration’s incredibly poor and spineless approach to asylum at the Southern Border and their failure to address the asylum disaster at EOIR.
And, it’s not that Biden’s morally and legally vapid approach to asylum seekers has won any support from the right, progressives, or independents. Almost everyone is suing or threatening to sue the Administration about some aspect of their hapless, mushy, often self-contradictory handling of asylum. It’s a traditional, perhaps endemic, problem that once elected, Dems have a hard time distinguishing friends from foes. At least on immigration, they spend far too much time catering to the views and bogus criticisms of the latter while ignoring the informed views and experiences of the former.
Judge Burgie is a Barr appointee, but has a diverse background that includes not only service as an EOIR JLC and fraud and abuse prevention counsel, but also time representing and advocating for refugees and asylum seekers. Her asylum grant rate has gone up steadily over three years on the bench and currently stands at approximately 75%, well within the range I’d expect from a competent, expertIJ handling a non-detained docket.
That’s about 2X the national average grant rate of 37.5%. And, the latter is “up” from its artificially suppressed rate under Trump! Better EOIR judges at the “grass roots level” can make a difference and save lives even in the absence of leadership from Falls Church and “Main Justice!”
As this case confirms, there is “substantial judicial potential” on the the EOIR bench, most of it at the trial level. That’s particularly true of some of Garland’s most recent appointments who are widely-recognized and universally-respected asylum experts — “practical scholars” if you will.
But, EOIR still has not reached the “critical mass” of outstanding jurists necessary to “turn this broken system around” in the absence of leadership, positive examples, and operational reforms “from the top!”
That’s why I advocate for “change from below as the way to go” to save some lives and institutionalize fair judging and best practices at EOIR. So, NDPA heroes, keep those applications flowing forupcoming vacancies on the Immigration Bench, at all levels. I want YOU to bring justice to the broken “retail level” of our legal system! See, https://immigrationcourtside.com/2023/01/12/-i-want-you-to-be-a-u-s-immigration-judge/.
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration JudgesDan Kowalski Online Editor of the LexisNexis Immigration Law Community (ILC)
Dan Kowalski reports for LexisNexis Immigration Community:
“The need for effective assistance of counsel applies in immigration law just as it does in criminal law. Aliens, many of whom do not speak English and some of whom are detained before their immigration hearings, can be particularly susceptible to the consequences of ineffective lawyers. Petitioner Arckange Saint Ford paid a lawyer to represent him in removal proceedings, but Saint Ford’s requests for relief from deportation were denied after the lawyer failed to present important and easily available evidence going to the heart of Saint Ford’s claims. Saint Ford retained new counsel, and his new lawyer asked the Board of Immigration Appeals to reopen his case because of his former attorney’s ineffective assistance. The Board declined to do so. Because Saint Ford presents a meritorious ineffective-assistance claim, we will vacate the Board’s decision and remand. … AMBRO, Circuit Judge, concurring Arckange Saint Ford will get a second shot at seeking withholding of removal—that’s what matters. The majority is remanding because of his former counsel’s deficient performance at Saint Ford’s removal hearing. I agree with that and concur in full. But former counsel was not the only one who made significant missteps at the hearing. The Immigration Judge did as well. I therefore would have granted Saint Ford’s initial petition for review and remanded on that basis. I write separately to explain these errors in the hope that similar ones will not be made at Saint Ford’s new hearing. [Emphasis added.]”
“The opinion and judgment filed on May 16, 2022 [34 F.4th 201 (3d Cir. 2022)] are hereby vacated. The Clerk is directed to file the amended opinion and re-enter the judgment contemporaneously with this order.” – Saint Ford v. Atty. Gen.
“Singh argues the BIA committed legal error in denying his motion to reopen because it failed to cite or apply the prejudice standard from Matter of Lozada and its progeny—i.e., that the alien “show a reasonable likelihood that the outcome would have been different,” Molina, 763 F.3d at 1263 (internal quotation marks omitted)— and instead applied an elevated standard of prejudice from Matter of F-S-N-, 28 I. & N. Dec. 1, 3 (B.I.A. 2020)—i.e., that the alien “overcome” a prior adverse credibility determination. We agree. … The BIA applied an incorrect legal standard in deciding whether Singh had been prejudiced by his attorney’s alleged ineffective assistance because it required him to “overcome” the adverse credibility determination to show prejudice. The BIA therefore abused its discretion in denying Singh’s motion to reopen. See Qiu, 870 F.3d at 1202 (“[C]ommitting a legal error . . . is necessarily an abuse of discretion.” (internal quotation marks omitted)). On remand, the BIA should consider whether there is “a reasonable likelihood that the outcome would have been different but for counsel’s deficient performance.” Mena-Flores, 776 F.3d at 1169 (internal quotation marks omitted).”
Wrong legal standards, mistakes at both trial and appellate levels, sloppy work, unfair results in “life or death” cases. Why is this “acceptable quasi-judicial performance” in the Biden Administration? Why isn’t Garland being held accountable for his life-threatening, ongoing, anti-due-process “clown show” @ EOIR?🤡☠️
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept“Lady Injustice” has found a home at Garland’s dysfunctional EOIR! Public Realm
It’s easy guys, we just do what DHS Enforcement and our political bosses want and we can keep hopping around forever! Backlogs! Ha, the bigger the bigger they get, the more “secure” our jobs! https://www.flickr.com/photos/rasputin243/ Creative Commons License
Dan Kowalski reports for LexisNexis Immigration Community:
CA10 Stop-Time Victory: Estrada-Cardona v. Garland
“The Attorney General may allow otherwise-removable aliens to remain in the country if, among other things, they have accrued 10 years of continuous physical presence in the United States. We call this form of discretionary relief “cancellation of removal.” Under the statutory “stop-time rule,” the period of continuous physical presence ends (A) when the alien is served with a notice to appear, or (B) when the alien has committed certain criminal offenses. 8 U.S.C. § 1229b(d)(1). Nothing more, nothing less. In the latest installment of “What Triggers the Stop-Time Rule?” the Government asks us to hold that the issuance of a final order of removal is a third, extra-statutory event sufficient to stop the clock. The plain language of the statute supports no such conclusion. Declining to read ambiguity into a statute where none exists, we hold a final order of removal does not stop the accrual of continuous physical presence. … This petition for review represents the latest chapter in the Government’s ongoing efforts to dig itself out of a hole it placed itself in. … After years of statutory short-circuiting, the Government finds itself in the uncomfortable position of being wrong. … Because Congress unambiguously replaced the final-order rule with the stop-time rule, the BIA’s application of the final-order rule was legal error. Petitioner continued to accrue continuous physical presence after the immigration judge issued the order to voluntarily depart. … [W]e hold that because the BIA seems to have considered change-in-the-law equitable tolling arguments before, the BIA abused its discretion in this case by failing to “announce its decision in terms sufficient to enable a reviewing court to perceive that it has heard and thought and not merely reacted.” … We cannot discern why the BIA found no extraordinary circumstance which would warrant equitable tolling, so the BIA abused its discretion. … On remand, the Government is free to argue that Petitioner should not be granted sua sponte reopening or equitable tolling. This opinion is expressly limited to two conclusions. First, the BIA’s application of the final-order rule was legal error. Second, the BIA’s explanations for denying sua sponte reopening and equitable tolling constituted, as a procedural matter, an abuse of discretion. For the reasons stated herein, we GRANT the petition for review and REMAND to the BIA for further proceedings not inconsistent with this opinion.”
“For years, if not decades, the Government sent aliens “notices to appear” which failed to include all the information required by § 1229(a)—like the “time and place at which the proceedings will be held.” 8 U.S.C. § 1229(a)(1)(G)(i). For countless aliens, the only obstacle to being eligible for cancellation of removal was the Government’s position that a time-and-place-to-be-set notice to appear still triggers the stop-time rule. In Pereira, the Supreme Court rejected the Government’s atextual interpretation and held a “putative notice to appear that fails to designate the specific time or place of the [alien]’s removal proceedings is not a ‘notice to appear under section 1229(a),’ and so does not trigger the stop-time rule.” 138 S. Ct. at 2113–14. In one fell swoop, the Supreme Court cleared the way for many aliens, like Petitioner, to seek cancellation of removal.
But the Government quickly erected a new hurdle.”
The BIA could and should have prevented this debacle by insisting from the git go that the statute (“the law”) be followed by DHS and EOIR. Instead, at the behest of DHS, and perhaps to prevent tens of thousands of long-term residents who had received statutorily defective notices from seeking relief, the BIA misinterpreted the statute time after time.
The real stupidity here is that the requirement the BIA was pretzeling itself to avoid was hardly “rocket science” or burdensome: Serve a notice containing the actual date, time, and place of the hearing! One might ask what purpose is served by a so-called “Notice to Appear” that doesn’t notify the individual of where and when to appear?
Moreover, when the BIA started issuing their incorrect precedents, DHS and EOIR had a then-existing system — called “interactive scheduling” — that would have complied with the statute. The problem was that the “powers that be” at DOJ, EOIR, and DHS consciously decided NOT to use that system.
The apparent reason was the belief that complying with the law might have interfered with DHS arbitrarily filling the Immigration Courts with large “numbers” of cases to meet various enforcement “priorities” set from “on high.” Rather than doing its job, the BIA chose time and again to “go along to get along” with this nonsense!
Over and over, EOIR lets bogus DHS or Administration “enforcement priorities” or “improperly using the legal system as a deterrent” subvert due process, fundamental fairness, best interpretations, and practical solutions!
And, although Biden and Harris campaigned on a platform of bringing the rule of law and rationality back to immigration, the absurdity and illegality continues under Garland. He even sent OIL in to waste the time of the Article IIIs by mounting essentially frivolous defenses to the BIA’s malfeasance.
Perhaps worst of all, in addition to being denied timely justice, individuals and their lawyers dealing with Garland’s dysfunctional EOIR often are falsely blamed for causing the backlogs that are the primary result of DHS/EOIR incompetence and political meddling by unqualified bureaucrats. The latter don’t understand what really happens in Immigration Court and how to properly, fairly, and efficiently administer such a large and important court system.
The backlogs will continue to grow and the US justice system will crater because of bad immigration decisions generating skyrocketing litigation. Garland must replace the BIA with real expert appellate judges committed to fair, humane, and reasonable interpretations of immigration and human rights laws — without regard to whether those correct interpretations will be “career enhancing” or “career preserving.” In other words, judges who put justice before personal or institutional “survival.” Competent, expert, independent-minded judicial administrators with the guts to keep DOJ and DHS bureaucratic meddlers “at arm’s length” are also required.
Folks who could do the job are out here. But, that’s the problem! They belong in the key judicial judicial and administrative positions at EOIR where they can put any end to the due-process denying, backlog building dysfunction.
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept
Everyone committed to the future of American justice should be asking themselves why Garland hasn’t recruited and hired the right “Team Due Process” for EOIR! American justice can’t afford more of Garland’s inept, “go along to get along,” “afraid to say no to DHS enforcement” BIA and the rest of the EOIR “Deadly Clown Show” largely left over from past, failed Administrations!
“Kelly Gonzalez Aguilar is a transgender woman from Honduras. She came to the United States and applied for asylum, withholding of removal, and deferral of removal. In support, Kelly claimed • past persecution in Honduras from her uncle’s abuse, • fear of future persecution from pervasive discrimination and violence against transgender women in Honduras, and • likely torture upon return to Honduras. The immigration judge denied the applications and ordered removal to Honduras. In denying asylum, the immigration judge found no pattern or practice of persecution. Kelly appealed the denial of each application, and the Board of Immigration Appeals dismissed the appeal. The dismissal led Kelly to petition for judicial review. We grant the petition. On the asylum claim, any reasonable adjudicator would be compelled to find a pattern or practice of persecution against transgender women in Honduras.”
Imagine what it would be like if we had an AG with the guts and decency to appoint a BIA of real judges — asylum experts who would adhere to due process and fairly, properly, and consistently interpret asylum laws rather than spewing out specious, life-destroying, bogus denials? Backlogs might even start decreasing!
Remarkably, even the Trump-appointed dissenting Circuit Judge Joel M. Carson concedes that EOIR easily could have decided this case in favor for the respondent and perhaps should have.
No doubt a person could view the record before us differently—the majority does so today—and I might on de novo review.
He then willingly gets lost in a forest of bogus reasons for abusing “standards of review” as an excuse for Article III Judges to avoid responsibility for life-threatening miscarriages of justice.
In stark terms, a reasonable judge could have saved this respondent and probably should have. But, this IJ and the BIA chose not to. So, who cares because it’s only a brown-skinned asylum seeker whose life is so insignificant that we should relegate it to the realm of chance and happenstance. Next case, please!
Asylum law, according to the Supremes in Cardoza-Fonseca is supposed to be interpreted generously in favor of protection. If legal protection from persecution or death is one possible outcome, it should be the the only acceptable outcome! Saying that some humans should potentially die while others be protected basically depending on a Federal Judge’s personal philosophy and mood on a particular day isn’t just legally wrong and a denial of due process and equal protection — it’s immoral!
The point is obvious. Better qualified judges at the BIA would put an end to this treatment of life or death decisions as a “crap shoot” — dependent on which IJ is drawn, the composition of the BIA “panel,” the Federal Circuit in which the case arises, the “luck of the draw” on the Circuit panel, and probably the “day of the week.” This is no way to run a justice system. And, Garland and his complicit lieutenants know that!
A better AG would long ago have installed a better BIA. It’s classic “Refugee Roulette” ☠️⚰️ being promoted by a Dem Administration! Instead of putting an end to this disgraceful “intellectual game of chance with human lives” being played by ivory tower bureaucrats and judges who have “immunized” themselves from the traumatic real life consequences of their bad decisions, Garland has chosen to “play along”
When he’s not carrying out Stephen Miller’s anti-asylum policies @ EOIR with Miller’s holdover acolytesas “judges” and “senior executives,” Garland is busy helping Trump and his fellow GOP insurrectionists “run out the clock” on the House Jan. 6 Panel!
“Cristian Josue Diaz Ortiz, a native of El Salvador, seeks review of a decision by the Board of Immigration Appeals (“BIA”) affirming the denial of his claims for asylum, withholding of removal, and protection under the United Nations Convention Against Torture (“CAT”). The Immigration Judge’s (“IJ”) rejection of Diaz Ortiz’s petition for relief rested on an adverse credibility determination that primarily drew its support from a “Gang Assessment Database.” Flaws in that database, including its reliance on an erratic point system built on unsubstantiated inferences, compel us to conclude that the credibility judgment — and, in turn, the rejection of Diaz Ortiz’s request for relief — is not supported by substantial evidence. Accordingly, we grant the petition for review and remand for new immigration proceedings.”
Nkemchap Nelvis Takwi seeks review of a decision by the Board of Immigration Appeals (BIA) dismissing his appeal from a removal order entered by an Immigration Judge (IJ) and denying his motion to remand. Exercising jurisdiction under 8 U.S.C. § 1252, we grant the petition for review. We remand this matter to the BIA because the IJ did not make an explicit adverse credibility determination, and the BIA did not afford Mr. Takwi the required rebuttable presumption of credibility.
Just for a good measure, the 9th Circuit also “busted” Garland’s BIA on an agfel issue:
“Petitioner Longinos Togonon, a native and citizen of the Philippines, was admitted to the United States as a lawful permanent resident in 2013. In 2015, he was convicted of arson in violation of California Penal Code § 451(b) and sentenced to three years of imprisonment. In 2018, the Department of Homeland Security initiated removal proceedings against Togonon, alleging (as relevant for our purposes) that his arson offense qualifies as an “aggravated felony.” See 8 U.S.C. § 1227(a)(2)(A)(iii) (“Any alien who is convicted of an aggravated felony at any time after admission is deportable.”). The Immigration and Nationality Act defines the term “aggravated felony” to include “an offense described in” 18 U.S.C. § 844(i). 8 U.S.C. § 1101(a)(43)(E)(i). The Board of Immigration Appeals (BIA) held that a conviction under California Penal Code § 451(b) is an offense described in 18 U.S.C. § 844(i) and that Togonon is therefore subject to removal from the United States. Reviewing that decision de novo, see Sandoval v. Sessions, 866 F.3d 986, 988 (9th Cir. 2017), we conclude that the BIA erred in so holding. We accordingly grant Togonon’s petition for review.”
[Hats off to pro bono publico appointed counsel Matthew N. Ball (argued), Gibson Dunn & Crutcher LLP, Denver, Colorado; Paul J. Collins, Gibson Dunn & Crutcher LLP, Palo Alto, California; Andrew T. Brown and Matt Aiden Getz, Gibson Dunn & Crutcher LLP, Los Angeles, California!]
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The First Circuit decision was 4-3. It appears that the respondent’s lawyers, experts, and the majority did the careful, critical analysis that the BIA failed to perform. Even the dissenters, who got it wrong, appear to have spent more time and thought on this issue than Garland’s BIA.
The Tenth Circuit decision highlights “Basic Asylum 101” failures by both the IJ and the BIA. It’s not that hard to make a specific credibility finding in every case. I did it in every contested asylum case I heard over 13 years on the bench. Nor is applying the presumption of credibility on appeal profound.
I’ll concede that the 9th Circuit agfel issue was more tricky. But, the BIA’s practice of almost always going with the most expansive, pro-DHS interpretations of the agfel definition to maximize deportation and minimize relief doesn’t help.
“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?
Anybody remember the last time we interpreted the law or facts in favor of a human? https://www.flickr.com/photos/rasputin243/ Creative Commons License
“The question in this case is whether the categorical approach requires a petitioner seeking cancellation of removal to demonstrate both that the state offense he was convicted of is broader than the federal offense and that there is a realistic probability that the state actually prosecutes people for the conduct that makes the state offense broader than the federal offense. We conclude that it does not. … Because the BIA’s decision relied on a misinterpretation of the realistic probability inquiry, we grant the petition for review, vacate, and remand for further proceedings consistent with this opinion.”
Lastly, the government argues that we should defer to the decision by the Board of Immigration Appeals (“BIA”) in Matter of Zamora-Molina, 25 I. & N. Dec. 606, 611 (B.I.A. 2011), in which the BIA adopted the same interpretation as the Department of State. Even assuming, without deciding, that Chevron deference applies when one agency (the Department of State) seeks to rely on the interpretation of another agency (the Department of Justice), we agree with the district court and with the Ninth Circuit that Chevron deference does not apply here because “the intent of Congress is clear.” Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842 (1984); see also id. at 842–43 (“If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.”); Tovar, 882 F.3d at 900 (declining to apply Chevron deference to Zamora-Molina because “traditional tools of statutory construction” and “the irrationality of the result sought by the government” combine to “demonstrate beyond any question that Congress had a clear intent on the question at issue”). As discussed above, the text, structure, and
33
legislative history of the CSPA conclusively show the “unambiguously expressed intent of Congress” to protect beneficiaries like Diaz. Chevron, 467 U.S. at 843.7
3) Ignoring Previous Circuit Ruling On Related Case — 10th Cir.
After we determined that conditions in China had materially worsened for Christians, Mr. Ni moved again for reopening. Despite our opinion in his wife’s case, the Board of Immigration Appeals concluded
2
again that Mr. Ni had failed to show a material change in country conditions.
This conclusion is unsupportable. Mr. Ni’s evidence of worsening
conditions in China largely mirrored his wife’s evidence, which had led us
to grant her petition for review. Mr. Ni’s evidence was even stronger than
his wife’s because China had recently adopted a regulatory crackdown on
practicing Christians. We thus grant Mr. Ni’s petition for review.
“To support his case for reopening, Mr. Lucaj submitted an affidavit complaining in particular about two events that occurred after his removal proceeding in 2006: The Socialist party took power in 2013, and then in 2019 the Socialists’ corruption and connections with organized crime deterred the opposition party from even participating in the 2019 elections. Mr. Lucaj provided, among other things, the State Department’s 2018 Human Rights Report on Albania, the Freedom House “Freedom in the World 2018” Report on Albania, and articles from 2018 and 2019 about corruption in Albania and the Socialist Party’s success in recent elections. We do not know whether those submissions show materially worsening conditions for Democratic Party members in Albania, however, because the BIA refused to compare those reports to available evidence of conditions from 2006, claiming that Mr. Lucaj had not “explained how the proffered . . . country condition documentation show[s] qualitatively different conditions from 2006.” Plainly, though, he did so by pointing out the two cited, post-2006 events as evidence of changed conditions. The BIA’s failure to assess whether those changes were sufficient was arbitrary and capricious. … Therefore, we reverse the decision by the BIA and remand Mr. Lucaj’s case so that the BIA can review available evidence to examine whether conditions for members of the Democratic Party in Albania have deteriorated since 2006 and, if so, whether Mr. Lucaj has established a prima facie case for relief.”
America and humanity deserve better from a supposed “expert tribunal” which actually functions more like a “denial factory” without much, if any, “quality control.” No wonder these guys are running an out of control, ever-expanding 1.3 million case backlog!
Denying continuances, not closing cases that belong at USCIS, rushed briefing, IJ’s “certifying” BIA remands to the Director (who should have no judicial role), dismissing applications for failure to fill in irrelevant blanks, raising fees, and a host of other nonsensical proposals that EOIR has had shot down by the Article III Courts recently won’t reduce the backlogs. They actually will make it worse, as have all the other “gimmicks” tried by EOIR to eradicate due process and dehumanize migrants over the past four years!
Who ever heard of lower court judges providing “quality control” for appellate judges, working through a bureaucrat who (at the time the proposal was supposedly “finalized”) had never presided over a case in Immigration Court? And, let’s remember, these are haphazardly selected trial judges, a decidedly non-diverse, non-representative group, whose own qualifications, expertise, judicial temperament, and training have been widely criticized by experts in the field.Few of today’s Immigration Judges and BIA Judges would be “household names” among immigration, human rights, and constitutional law experts and scholars!
The current mess is largely the result of Aimless Docket Reshuffling imposed on the Immigration Courts by unqualified politicos at the DOJ and their equally unqualified toadies at EOIR HQ. Also, DHS has more often than not ignored the realities of good docket management and the prudent exercise of prosecutorial discretion. It is not the fault of the vulnerable migrants and their lawyers victimized by this absurdly politicized, biased, and mal-administered system!
Restoration of justice at EOIR will require radical due process oriented changes starting with new, professional leadership from “practical scholars” in immigration and human rights as well as replacing BIA Judges with better qualified jurists selected from the ranks of those “practical scholars.” Quality control, expertise, competence, common sense, and human understanding are all lacking at today’s EOIR!
PANEL: HARTZ, PHILLIPS, and CARSON, Circuit Judges.
OPINION BY: Judge HARTZ
KEY QUOTE:
On this record we think it was unreasonable for the BIA and the IJ to decide that the government successfully rebutted the presumption that Petitioner has a well-founded fear of future persecution in Ghana. Their finding that Petitioner could safely relocate within Ghana is not supported by substantial evidence. See Arboleda v. U.S. Atty. Gen., 434 F.3d 1220, 1226 (11th Cir. 2006) (concluding that relocation “would not successfully shield [an asylum applicant from] persecution” because, although the applicant “relocated from his farm . . . to the capital city,” “the [persecutors] continued to threaten [the applicant] and his family . . . , [including through] frequent notes and telephone calls detailing the family’s activities and threatening them with death,” and by “burning down [the applicant’s] farm house”).
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Yet another in the steady stream of documented failures of basic asylum analysis — the X’s and O’s — by a supposedly “expert” tribunal that is anything but!
This decision would be an outstanding “teaching tool” for instructing Immigration Judges on the proper analysis of a “reasonably available internal alternative.” The word “reasonable” is often “read out” of the analysis by EOIR judges in their rush to find “any reason to deny” claims to please their nativist political handlers.
In my more than two decades of experience at both the trial and appellate levels of the Immigration Judiciary, I observed that it is very difficult for DHS to properly rebut the presumption of future persecution by showing “that there is a specific area of the country where the risk of persecution to the respondent falls below the well-founded fear level,” as accurately described by the 10th Circuit. Indeed, it appears that many EOIR Judges lack the skills and training necessary to grant asylum with cogent analysis that would cut off many of the semi-frivolous appeals that ICE now takes. This is truly a “judiciary in shambles” under current grossly defective leadership.
I daresay that if all Immigration Judges held the DHS to their legal burden under this standard, the presumption would seldom be rebutted, in either asylum or withholding cases. But, the lack of real asylum expertise at today’s “dumbed down” EOIR and the clear “any reason to deny and deport” message sent by corrupt regime politicos to “their captive judiciary” undoubtedly results in numerous miscarriages of justice and wrongful removals.
Note that the respondent in this case was actually removed pending appeal! Had the case been handled properly in June 2017, the respondent would have been granted asylum, be a green card holder, and on his way to achieving citizenship. Instead, Professor Hong has to hope that she can get him back to the U.S. while he’s still alive!
The costs of EOIR’s deficient “judging” and unethical “weaponization” go far beyond what meets the eye. Someday, historians and sociologists will uncover and document the true human and moral costs of this disgraceful period in American history when we let grossly unqualified and immoral leaders and their accomplices lead us down the path to inhumanity and the abuse of the rule of law.
Unnecessary escapades like this, where cases that should be granted at “first instance review” instead linger in the system, moving from level to level and back again, for years, without proper resolution, make it easy to understand why EOIR builds “artificial backlog” while failing to provide basic justice. It also shows why the solution is “better judges” at EOIR and more prosecutorial discipline at ICE, rather than just shoving yet more additional judges into a broken, dysfunctional, and intentionally inefficient system that has been run into the ground by “malicious incompetents” over the past four years. NDPA expertise at EOIR and DHS are the answers!
Perhaps the “new EOIR” should hire Professor Hong to provide some real expert training on asylum law. Or, better yet, appoint her to an Appellate Judgeship at the BIA where she can lead a “renaissance of competence” in due process and fair asylum adjudication at EOIR and “teach by example!”
Or, even better, given her outstanding credentials, practical litigation experience, scholarship, courage, and proven leadership, appoint her to an Article III Judgeship where she can help improve the performance of the entire Federal Judiciary on what is one of the key issues in the fight to achieve social justice for all in America.
We need some new faces and better “practical scholarship” at ALL levels of the Federal Judiciary, from the “retail level” of the Immigration Courts to the Supremes. Better Judges for a Better America for all! Biden-Harris Administration take note!
Thanks, Professor Hong to you and your dedicated“crew” @ BC Law for all you do for the NDPA and for American Justice! You are making a difference!
In addition to Professor Hong’s stellar efforts, I am also reminded by my good friend, and another NDPA Superstar 🌟 Michelle Mendez @ CLINIC, of the key “behind the scenes” role played by the CLINIC BIA Pro Bono Project . Brad Jenkins and Rachel Naggar helped Professor Hong prepare for oral argument. (In the “small world” category, Brad did a “textbook presentation” of an asylum case before me in Arlington while he was serving as an Accredited Representative and a fellow at CAIR. I only found out later that he was a “ringer” on his way to Harvard Law and a distinguished career in social justice!) Additionally, Tania Linares Garcia (from NIJC) was part of the “team of experts” advising Professor Hong.
This is just another example of the great teamwork and mutural support that is the hallmark of the NDPA and the pro bono immigration/human rights community. As those who have had me for a teacher at Georgetown Law or have heard me speak know, I always “preach five things:” fairness, scholarship, timeliness, respect, and teamwork. Those were once “what EOIR was suppposed to be about” before the precipitous decline and total loss of values.
But, if the Biden-Harris Team takes bold and decisive action to eliminate the current kakistrocracy and replace it with “NDPA pros,” the vision of “through teamwork and innovation becoming the world’s best tribunals guaranteeing fairness and due process for all” can become a reality! Things don’t have to be the way they are now at EOIR!
Here’s an array of reports on how America under the Trump regime has joined the ranks of dictatorships, torturers, child abusers, persecutors, and human rights criminals!
Eugene Robinson Opinion Columnist Washington Post Source: WashPost Website
Eugene Robinson @ WashPost:
What kind of people are we? As a society, are we so decadent and insecure that we show “toughness” by deliberately being cruel to innocent children? Is this what our nation has come to? Or are we better than that?
This election demands we answer those questions. The choice between President Trump and Joe Biden is not just political. It is also moral. And perhaps nothing more starkly illustrates the moral dimension of that decision than the Trump administration’s policy of kidnapping children at the southern U.S. border, ripping them away from their families — and doing so for no reason other than to demonstrate Trump’s warped vision of American strength.
We learned this week that some of those separations will probably be permanent. As NBC News first reported, 545 boys and girls taken as many as three years ago — the children of would-be immigrants and asylum seekers, mostly from Central America — have not been reunited with their parents and may never see their families again.
These are not among the nearly 3,000 families separated at the border in 2018, when children were kept in cages like animals or shipped away to facilities across the country, hundreds or thousands of miles from the border. We now know, thanks to the American Civil Liberties Union and other pro bono lawyers, that an additional 1,500 children were torn away from their families beginning in 2017, when the Trump administration conducted a trial run of the separation policy.
Please think about that. The shocking scenes we saw two years ago did not result from a sudden spasm of presidential anger. They didn’t stem from a Fox News segment Trump might have seen one evening. Rather, the administration rehearsed this form of cruelty.
What the administration did not plan for was how to reunite the children taken in 2017 with their families. Many of the parents were deported, and their children were placed in shelters around the country, then ostensibly released to parents or guardians, placements that the ACLU is still trying to confirm.
[Our Democracy in Peril: A series on the damage Trump has caused — and the danger he would pose in a second term]
The ACLU and other organizations have sent investigators to towns and villages in Central America in an attempt to find the kidnapped children’s families — an effort complicated not just by time and distance, but also by the covid-19 pandemic. Parents of 545 children have not been found, the ACLU reported this week.
Disturbingly, the Department of Homeland Security suggested that some of the parents declined to get their children back so they could remain in the United States. Keep in mind that most of these families were seeking asylum from deadly violence in their home countries. The Trump administration changed immigration guidelines to make it unlikely that the families would ultimately be allowed to stay in the United States, but federal law gives them the right to apply for asylum and to have their cases heard. They did nothing wrong. They should never have been asked to choose between parenting their children and getting them to safety — not by their home countries, and not by the United States.
Trump’s racism and xenophobia have been hallmarks of his presidency from the beginning, so perhaps it should be no surprise that he would preside over such an outrage. But he didn’t do this by himself. He had plenty of help.
Former attorney general Jeff Sessions seized an opportunity to make his rabid antipathy toward Hispanic immigration into policy. White House senior adviser Stephen Miller, a former Sessions aide in the Senate, was the architect of Trump’s “zero tolerance” immigration policy. Then-White House Chief of Staff John F. Kelly said in 2018 that the children taken would be “taken care of — put into foster care or whatever.” Former homeland security secretary Kirstjen Nielsen said last year that she regretted that “information flow and coordination to quickly reunite the families was clearly not in place” — but not the separations themselves.
President Donald Trump’s administration started and carried out a policy that took more than 4,000 children from their parents, at least 545 of whom are still split apart years later. But at Thursday’s debate, the president insisted that he did nothing wrong at all ― blaming his Democratic predecessors and even insisting the kids are doing fine.
“They are so well taken care of,” Trump said of the children taken from their parents by his administration. “They’re in facilities that were so clean.”
Trump’s first term was marked by a full-out assault on immigration, both legal and unauthorized. The most dramatic was his “zero tolerance” policy on unauthorized border-crossing, used in a 2017 pilot program and expanded more broadly in 2018, that led to criminal prosecution of parents and locking up their kids separately. Splitting up families was intentional and calculated, according to multiple reports.
Thanks to mass public outrage and a court order, Trump was forced to stop his family separation policy. Most families were reunited, but the American Civil Liberties Union, which was part of the lawsuit against the government that stopped the policy, said this week that at least 545 kids are still away from their parents.
“Their kids were ripped from their arms and separated,” Democratic nominee Joe Biden said during the debate. “And now they cannot find over 500 sets of those parents and those kids are alone. Nowhere to go. Nowhere to go. It’s criminal.”
Washington Post Columnist Ruth Marcus, moderates a panel discussion about chronic poverty with Education Secretary John B. King and Agriculture Secretary Tom Vilsack, during the National Association of Counties at the Washington Marriott Wardman Park, in Washington, DC, on Tuesday, Feb. 23, 2016. U.S. Department of Agriculture photo by Lance Cheung.
Ruth Marcus @ WashPost:
545.
That is the number of children still separated from their families by the Trump administration — separated deliberately, cruelly and recklessly. They might never be reunited with their parents again. Even if they are, the damage is unimaginable and irreparable.
545.
Even one would be too many. Each one represents a unique tragedy. Imagine being ripped from your parents, or having your child taken from you. Imagine the desperation that the parents feel, the trauma inflicted on their children.
545.
That number represents an indelible stain on President Trump and every individual in his administration who implemented this policy, flawed at the conception and typically, gruesomely incompetent in the execution. It is, perhaps in the technical sense but surely in the broader one, a crime against humanity. It is torture.
545.
That number — I will stop repeating it, yet it cannot be repeated enough — represents a moral challenge and responsibility for the next administration. If Joe Biden is elected president, he must devote the maximum resources of the federal government to fixing this disaster. The United States broke these families; it must do whatever it takes to help them heal.
Nothing like that would happen in a second Trump term, because Trump himself doesn’t care. He doesn’t grasp the horror that he oversaw. He doesn’t comprehend the policy, and he is incapable of feeling the pain it inflicted.
Those truths could not have been clearer cut than during Thursday night’s debate.
Moderator Kristen Welker of NBC News asked the president a simple question: “How will these families ever be reunited?”
First, Trump misstated the situation: “Their children are brought here by coyotes and lots of bad people, cartels, and they’re brought here, and they used to use them to get into our country.”
No. These are children separated from their families, not separated from smugglers. They are children brought by their parents in desperate search of a better life, desperate enough that they would take the risk of the dangerous journey.
Then Trump pivoted to the irrelevant: “We now have as strong a border as we’ve ever had. We’re over 400 miles of brand new wall. You see the numbers. And we let people in, but they have to come in legally.”
Welker persisted: “But how will you reunite these kids with their families, Mr. President?”
Trump responded by pointing his finger at his predecessor: “Let me just tell you, they built cages. You know, they used to say I built the cages, and then they had a picture in a certain newspaper and it was a picture of these horrible cages and they said look at these cages, President Trump built them, and then it was determined they were built in 2014. That was him.”
This is typical Trumpian deflection, bluster undergirded by ignorance. The “cages” are ugly but irrelevant to the topic at hand: the deliberately cruel plan to deter border-crossing by separating children from parents. That was a Trump administration special, implemented with callous sloppiness and so extreme that even the Trump administration abandoned it.
Welker, for the third time: “Do you have a plan to reunite the kids with their families?”
At which point Trump made clear that he did not: “We’re trying very hard, but a lot of these kids come out without the parents, they come over through cartels and through coyotes and through gangs.” The children, he added later, “are so well taken care of, they’re in facilities that were so clean.”
The third and final presidential debate gave Donald Trump and Joe Biden the opportunity to make their final pitch to the American people before the 2020 election. For the Democratic nominee, that meant driving home the point that he believes in science, that he’ll take the COVID-19 pandemic seriously, that climate change is real, and that systemic racism must be dealt with. For Trump, it meant making it clear that in addition to being a science-denying, QAnon-promoting dimwit, he’s also an actual monster who thinks separating small children from their parents, in some cases permanently, is absolutely fine.
Asked by moderated Kristen Welker about the news that parents of 545 children separated at the border—60 of whom are under the age of five—cannot be located, Trump defended the policy and gave no explanation for how the government plans to find these people and reunite their families. “Children are brought here by coyotes and lots of bad people, cartels, and they’re brought here and they used to use them to get into our country,” Trump said, which is objectively false, as they are brought here by their parents, which is why it’s called the family separation policy. “We now have as strong a border as we’ve ever had. We’re over 400 miles of brand new wall. You see the numbers and we let people in but they have to come in legally.”
Noting that Trump hadn’t answered the question, Welker pressed: “But how will you unite these kids with their families?”
“They built cages, they used to say I built cages…that was him,” Trump said, pointing to Biden and referring to the fact that the Obama administration did build temporary enclosures but failing, naturally, to mention that his predecessor did not separate families.
“Do you have a plan to reunite the kids with their parents?” Welker asked a third time. Again, Trump responded by claiming that the children “come without the parents, they come over through cartels and through coyotes and through gangs.”
At this point, Joe Biden was given a chance to weigh in and used his time to describe the policy implemented by Trump as the horror show all non-sociopaths know it to be. “Parents, their kids were ripped from their arms and they were separated and now they cannot find over 500 sets of those parents and those kids are alone, nowhere to go. It’s criminal.”
Then Trump interjected with what he apparently believed was an important point that would cast his administration in a much more favorable light and perhaps might even win it some awards or sainthood by the Catholic church. “Kristen, I will say this,” he told the moderator, of the children stolen from their parents. “They’re so well taken care of. They’re in facilities that are so clean.
With regard to that claim, NBC News reporter Jacob Soboroff weighed in on that after the debate, telling Rachel Maddow: “I was one of the reporters I guess the president mentioned, they invited me to go to the epicenter of this policy…what I saw was little children sitting on concrete floors, covered by mylar blankets, supervised by security contractors in a watchtower, it makes me sick every time I recall it. And Physicians for Human Rights…called this torture…the American Academy of Pediatrics called this state-sanctioned child abuse, and the president of the United States I guess interprets that as children being well taken care of.”
Jacob Soboroff NBC Correspondent Jacob Soboroff at the ABC News Democratic Debate National Constitution Center. Philadelphia, PA. Creative Commons License
Here’s a video from NBC New’sJacob Soboroff, who has actually been inside “Trump’s Kiddie Gulag.” Surprise spoiler: It’s not “nice.” More like “torture” and “child abuse.”
There is neither moral nor legal justification for what the Trump regime has done to asylum seekers and other migrants over the past four years as part of their racist, White Nationalist, nativist agenda. But, we can show that we’re a better country than his horrible vision by voting him and all of his enablers out of office! Vote ‘Em out, vote ‘Em out!
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”Dan Kowalski Online Editor of the LexisNexis Immigration Law Community (ILC)
Sent: Friday, July 31, 2020 4:16 PM
To: ICLINIC@LIST.MSU.EDU; Immigration Law Professors List
Subject: [immprof] FW: victory in Johnson v. Barr – Colorado possession statute overbroad and indivisble!!!
team,
a huge victory today for one of our clients, and hopefully many other folks in our community.
in Johnson v. Barr, the 10th circuit ruled that the Colorado statute of possession of a controlled substance is overboard as to the federal schedule and indivisible as to the particular controlled substance within a schedule.
the court honed in on the categorical approach, looking first to the plain language of the statute, the penalties assigned under the statute, its unpublished decision in Arellano, and persuasive state case law in deciding in our favor.
-this means that no conviction for possession of a schedule I or II CS can support the CS grounds of inadmissibility or deportability. this will hopefully help countless people who were found inadmissible, deportable, subject to mandatory detention, and ineligible for relief to seek redress of those legal errors.
-by extension, this decision is likely to apply to simply possession of a schedule III-V because it is also overbroad and structured nearly identically to the possession statute at issue in Johnson. moreover, due to legislative change last year classifying all PCS of schedule I-V CS as a DM1 offense starting in 2020, all future PCS offenses are likely also overbroad and indivisible.
this is definitely a day to celebrate. we will see whether the govt seeks rehearing or cert.
As noted by Hans, this decision could have “big-time” impact and result in numerous motions to reopen and “redos.” It’s just another example of how the gimmicks and misinterpretations used and encouraged by the Trump regime as part of their “haste makes waste” deport everyone policies actually create backlogs and waste resources while doing grave injustices.
America needs an independent Article I U.S. Immigration Court with real expert judges, with a commitment to human rights and due process,dedicated to seeing that individual results are fair and just, rather than carrying out a perverted, race and hate driven nativist political agenda to maximize deportations in disregard of the law.
Banuelos-Galviz v. Barr, 10th Cir. , 03-25-20, published
PANEL: HOLMES, MATHESON, and BACHARACH, Circuit Judges.
OPINION BY: Judge Bacharach
KEY QUOTE:
Given the unambiguous language of the pertinent statutes, the stop- time rule is not triggered by the combination of an incomplete notice to appear and a notice of hearing. We thus grant the petition for review and remand to the Board for further proceedings.
*********************
“No ‘Chevron deference’ for you, BIA!”Particularly, where you ignore the clear statutory language as well as the Supreme’s ruling in Pereira. The precedent overruled by the 10th Circuit is Matter of Mendoza-Hernandez, 27 I. & N. Dec. 520, 529 (BIA 2019) (en banc), a rare (these days) en banc ruling that generated a feisty and correct dissent (also rare following the “Ashcroft purge of ‘03”). But, because of the arcane rules governing the BIA, the overruled precedent in Mendoza-Hernandez will continue to apply everywhere except the 3rd & 10th Circuits.
Not Rocket Science: Notwithstanding the BIA’s “smokescreens,” and that the Fifth and Sixth Circuits have managed to get it wrong, this is a very straightforward reading of the statute that any first-year law student should get right on an exam. We now have three Circuits that have gotten it right, the 3rd, 10th, and 9th, and two that have bobbled it. But, as noted by the 10th Circuit, the 9th Circuit opinion has been vacated pending rehearing en banc. Lopez v. Barr, 925 F.3d 396, 410 (Callahan, J., dissenting), reh’g en banc granted, 948 F.3d 989 (9th Cir. 2020) (Thomas, C.J.).
More “ADR” on the horizon: In any event, the DHS’s choice to serve clearly defective notices combined with the BIA’s “straining to get to deportation” to satisfy their political handlers in the DOJ is continuing to create an awful mess in the Immigration Courts. That, in turn, should continue to “artificially jack up the backlog” and create even more “Aimless Docket Reshuffling” (“ADR”) until it’s finally resolved.
