Category: Brito v. Garland

http://media.ca1.uscourts.gov/pdf.opinions/20-1037P-01A.pdf

Brito v. Garland, 1st Cir., 12-29-21, published

KAYATTA, Circuit Judge. This class action presents a due process challenge to the bond procedures used to detain noncitizens during the pendency of removal proceedings under 8 U.S.C. § 1226(a), the discretionary immigration detention provision. In light of our recent decision in Hernandez-Lara v. Lyons, 10 F.4th 19 (1st Cir. 2021), we affirm the district court’s declaration that noncitizens “detained pursuant to 8 U.S.C. § 1226(a) are entitled to receive a bond hearing at which the Government must prove the alien is either dangerous by clear and convincing evidence or a risk of flight by a preponderance of the evidence.” Brito v. Barr, 415 F. Supp. 3d 258, 271 (D. Mass. 2019). We conclude, however, that the district court lacked jurisdiction to issue injunctive relief in favor of the class, and we otherwise vacate the district court’s declaration as advisory. Our reasoning follows.

. . . .

****************

I can usually count on Garland to “punctuate” my points! See, e.g., https://immigrationcourtside.com/2021/12/29/%f0%9f%97%bd%e2%9a%96%ef%b8%8f-courtside-in-the-news-both-nolan-the-hill-kevin-immigrationprof-blog-highlight-my-blistering-analysis-of-bidens-first-year-immigration/

And, he didn’t disappoint, at least on that score!

No sooner was the ink dry on my last post, than Ol’ Merrick gave me a classic example of why come “panic time” next Fall, when the Dem bigwigs come knocking on the door asking their “old reliable” progressive base to open their pocketbooks and get out the vote, they might find that the windows are dark and nobody’s home! If you don’t exist for the first 19 months of a Dem Administration, it’s hard to see why you wouldn’t be “on vacation” for the next three! 

If Dems want to continue as a viable force in American politics, at some point they will need leaders who recognize the difference between “political strategies” and “values.” Standing up for the human and due process rights immigrants and all other “persons” in the U.S. is the latter, not the former!

To reiterate Garland’s position in this and related cases: 

• No due process for immigrants;
• Keep the “New American Gulag” full of non-dangerous individuals;
• Promote wasteful litigation, inconsistency, and chaos in my wholly-owed Immigration Courts that continue to operate as if “Gauleiter Stephen” were still calling the shots, and clutter the Article IIIs with my poor work product.

Nice touch! (Although, to be fair, it’s the same regressive, anti-due process, racially tinged position taken by both the Obama Administration and the Trump regime.)

Seems like an Administration that claims to be litigating, to date not very successfully (surprised?), to vindicate the voting rights and civil rights of African-Americans, Latinos, and other minorities might want to rethink arguing for the “Dred Scottification” of migrants, primarily persons of color. Maybe, some right-wing Federal Judge will start citing Garland back to Garland to say that “all persons aren’t really persons.” Sounds like something Rudy would say on a Sunday talk show (except that nobody invites him any more).

And, if you are wondering what the 34 pages of opaque legal gobbledygook and all out assault on logic and the English language in the majority opinion means, I’ll simplify it. 

“We think it’s reasonable and appropriate that you plaintiffs who admittedly have had your Constitutional rights systematically violated by your litigation opponent should be required to seek redress on a case-by-case basis before a dysfunctional ‘court’ wholly-owned, staffed, and operated by your opponent located within a Government bureaucracy that has been litigating against your Constitutional rights over three Administrations!”

There, you have it! 34 pages of intentionally impenetrable “judgespeak,” legalese, and doublespeak condensed to one sentence of fewer than 65 words! 

Anybody (besides me) think that maybe, just maybe, there could be a Constitutional problem with “courts” owned and operated by a litigating party? Certainly seems above Garland’s pay grade to trifle with such trivialities, even when human lives and freedom are on the line.

Nope, better to just regurgitate the “Miller Lite” positions from the “restrictionists’ playbook” left behind by your Trumpy predecessors. And, for a good measure, why not even use some of their lawyers to argue them? But, strangely, those folks don’t seem to be very convincing when, on rare occasions, they are sent out to argue for more humane and reasonable treatment of immigrants! Perhaps their hearts, and heads, just aren’t in it.

My congrats to Circuit Judge Lipez (concurring and dissenting), the only one to actually get this one right and be able to explain it in understandable terms. When you have the right answer, you don’t have to obfuscate as much to cover up your fuzzy thinking (or lack thereof).

Gotta love it! Garland runs an unconstitutional bond system that infringes on individuals’ right to freedom, while improperly shoving those not accused of crimes into his “New American Gulag.” Yet, the panel manages to talk itself out of granting effective relief! Truly remarkable!

If the judges in the majority had actually practiced before the Immigration Courts they might know:

1) Bond cases are hard to appeal because the IJ isn’t required to provide a final rationale for his or her decision until after an appeal has been taken;

2) By regulation, bond hearings aren’t even required to be “on the record” (although many of us chose to nevertheless put them on the record for the convenience and protection all concerned);

3) The BIA has a “general practice” of not adjudicating bond appeals by respondents until after the detained merits hearing has taken place, whereupon the BIA finds the bond appeal to be “moot;”

4) OIL often encourages DHS to release individuals who sue in District Court to moot the case.

I’m sure that Garland’s BIA which has, on occasion, blown off the Supremes and declined to follow Circuit Court orders on remand, will promptly fashion a very well-reasoned progressive precedent vindicating respondents’ rights.  

Then again, maybe they will just take whatever position that their “boss” Garland wants to litigate in behalf of his “partners” at DHS Enforcement.

What do you think Garland’s personally owned and operated courts will do?

Better Judges for a Better America —  starting with the BIA! And, while you’re at it, how about throwing in an Attorney General committed to vindicating the legal and human rights of all persons!

So, NDPA, take up, the cudgel of justice and flood Garland’s courts and the Article IIIs with as many individual “exhaustion of remedies” cases as it takes to obtain justice or grind Garland’s corrupt system to a halt! 

Garland would “rather fight than get it right.” So, take advantage of his limited litigation skills, tunnel vision, and the mediocre talent he employs to do his bidding. Take the fight to him, as he wishes! 

Continually pummeling him in court is apparently the only way to get Garland to pay attention to progressives!

Additionally, you should, of course, keep applying for Immigration Judgeships, BIA Judgeships, Asylum Officer positions, and other key jobs where you can make a difference and save some lives.

Garland’s tone-deaf system must be attacked from all angles until it collapses under its own weight. An Attorney General who obviously would like to put migrants, their humanity, their rights, and YOU, their advocates, “out of sight, out of mind” so he can think great thoughts about the “really important things in life,” is eventually going to find that those he ignores and condemns without fair trial will be the ONLY thing on his plate and occupying his time!

When leadership lacks the vision, courage, and skills necessary to promote change, it falls to those at all levels of society and our justice system to assert the pressure and impetus for that essential change to take place! Keep pushing and pressing until “the powers that be” can’t ignore and marginalize you any more!

Vanita Gupta, Lucas Guttentag, and Kristin Clarke, what on earth do you do with yourselves all day long, now that you have removed yourselves from the battle for civil rights, equal justice, and racial justice in America? I guess there are lots of papers to push and meaningless meetings to attend in Garland’s broken DOJ bureaucracy. 

I’d say things haven’t changed much. But, I actually think they have gotten measurably worse since “my days” at the DOJ. And, that’s saying a lot!

🇺🇸Due Process Forever, and Happy New Year!🥂

P 😎