Judge Barrington D. Parker – immigrationcourtside.com

⚖️🧑🏻‍⚖️🍅FOOD FIGHT ERUPTS IN 5TH CIRCUIT AS EN BANC MAJORITY DECIDES TO FOLLOW LAW EVEN WHERE IMMIGRANT WINS! — 3 Trump Appointees, 1 Bush II Appointee, Join All Dem Appointees To Thwart 8 GOP Scofflaws’ Efforts To Overturn Rodriguez v. Garland!😎

The issue is whether an in absentia removal order can be based on a statutorily defective notice. The panel followed the Supreme’s decision in Niz-Chavez and rejected the BIA’s conflicting decision in Matter of Laparra. In other words, the panel required the Government to follow the statute, a process known as “complying with the law.” This sent some of this most conservative circuit’s most far-right judges over the edge. Here’s the en banc decision:

https://www.ca5.uscourts.gov/opinions/pub/20/20-60008-CV1.pdf

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

Credit Dan Kowalski over at LexisNexis for the “food fight” characterization.
The scofflaw GOP dissenters cited “deference” to the Executive, something they have pointedly refused to apply to Biden Administration precedents and policies favoring migrants.
The majority says: “[The BIA] flies in the face of the Supreme Court’s Pereira decision, which Laparra ignored.”
Incredibly, Garland is on the “wrong side” of this controversy, defending the legally incorrect misinterpretation of his “Trump holdover” BIA!
The statutory requirement at issue: That a “Notice to Appear” before the Immigration Court inform the individual of the time and place of the hearing. How difficult does that sound? Not very, unless you are bumbling bureaucrat at DHS and EOIR who chose, even after the Supremes’ initial decision, to violate that decision and the statute in almost 100% of the cases instituted before the Immigration Courts!
Kudos to the 3 Trump appointees and one Bush II appointee who joined 3 Obama appointees and 2 Clinton appointees to uphold the rule of law and thwart their GOP scofflaw colleagues.
Interestingly, and perhaps mildly encouraging, the “Trump appointees” split 3-3 on this one.
Apparently nothing drives a wedge between conservative judges like the scary prospect of following the law when it gives immigrants a win!
Future ambitious academic study: How much of the current out of control backlog can be traced to the Government’s, and particularly the BIA’s, inept handling of straightforward notice requirements set forth in the statute?
There’s a reason why I keep referring to Garland’s out of control EOIR backlogs as “largely self-created,” albeit in fairness not exclusively by him. The Trump Administration, and to a lesser extent the Obama Administration, also “excelled” at “Aimless Docket Reshuffling” driven by “prioritizing” improper political goals over due process, fundamental fairness, quality, and practical scholarship in the Immigration Courts.

🇺🇸Due Process Forever!

PWS

04-21-22

🇺🇸⚖️🗽🛡⚔️😎👍ANOTHER NDPA/ROUND TABLE VICTORY OVER DHS/EOIR SCOFFLAWS – 2d Cir. Applies Constitution To Bond Hearings – Says Burden On DHS To Show “Clear & Convincing” Evidence For Imprisonment In Gulag – Velasco Lopez v. Decker

Velasco Lopez v. Decker, 2d Cir., 10-27-20, published

Here’s a link to the opinion:

19-2284_op

Here’s a link to the Round Table’s amicus brief:

https://drive.google.com/file/d/16RkOlBfGLEn_RfBEZqQDmhrY7aBhA70P/view

PANEL: PARKER, CHIN, AND CARNEY, Circuit Judges

OPINION BY: BARRINGTON D. PARKER, Circuit Judge

SUMMARY:

The Government appeals from a judgment of the United States District Court for the Southern District of New York (Carter, J.), granting Carlos Alejandro Velasco Lopez’s petition for a writ of habeas corpus. Velasco Lopez was detained pursuant to 8 U.S.C. § 1226(a), which provides for discretionary detention of noncitizens during the pendency of removal proceedings. His habeas petition challenged the procedures employed in his bond hearings, which required him to prove, to the satisfaction of an immigration judge, that he is neither a danger to the community nor a flight risk. We hold that the district court correctly granted the petition, and provided the correct remedy by ordering a new bond hearing in which the Government bore the burden of showing by clear and convincing evidence that Velasco Lopez was either a danger or a flight risk.

KEY QUOTE:

The irony in this case is that, in the end, all interested parties prevailed. The Government has prevailed because it has no interest in the continued incarceration of an individual who it cannot show to be either a flight risk or a danger to his community. Velasco Lopez has prevailed because he is no longer incarcerated. And the public’s interest in seeing that individuals who need not be jailed are not incarcerated has been vindicated.

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

Judge Parker is correct insofar as he cogently states what should be a “win-win-win” under a functioning Government. I wholeheartedly join lead counsel Julie Dona of the Legal Aid Society, NY, in appreciating and recognizing Judge Parker’s understanding of the grim realities of today’s mal-functioning Immigration Courts and the important Constitutional rights being abridged by DHS & EOIR (essentially one and the same under the Trump kakistocracy).

But, that statement of how Government should be functioning glosses over the unfortunate reality of the Trump regime’s lawless, White Nationalist, nativist immigration agenda. The Trump regime doesn’t seek to create “win-win-win” situations! Instead, they seek to make political statements, dehumanize and degrade “the other,” and promote the biases of their “base” over sound public policy that benefits the common good.

The purpose of imprisonment in the Trump Gulag all too often has little or nothing to do with the legal criteria of danger to the community or flight risk. Rather, detention in the Gulag is used by the Trump regime’s DHS, with the connivence of the DOJ and often the courts, to punish individuals who choose to assert their legal rights; make it more difficult for them to obtain effective representation; and to coerce them into abandoning viable claims for relief, appeals, and judicial review. It’s all about punishment and deterrence, not mainly about the public interest, which is ill-served by most of Trump’s biased and counterproductive immigration policies.

DHS detention in the Trump era primarily serves Trump’s political interests and the interests of those running the for-profit prisons comprising much of Trump’s New American Gulag. Any time Trump’s policies match up with a legitimate national interest, it’s purely happenstance, not part of some overall plan to govern in the public interest.

Think things couldn’t get worse? Notorious White Supremacist “Gruppenfuhrer” Stephen Miller plans to go “full-Nazi” if the Trump regime stays in power, as reported by Amanda Holpuch in The Guardian. https://www.theguardian.com/us-news/2020/oct/28/stephen-miller-trump-second-term-immigration-blitz?CMP=Share_iOSApp_Other

Miller’s plans are so explosively ugly, overtly racist, and anti-American that they are being kept under wraps (for now) because of a (quite legitimate) fear that they could drive the small, yet potentially significant, minority of voters of color that Trump needs to have any chance of extending his rule to do something rational and in their self-interest: Vote for Biden-Harris. Look for things like eliminating birthright citizenship, eradicating all refugee and asylum laws, making it difficult or impossible for family members and people of color to immigrate legally, a wave of summary deportations, deporting “Dreamers,” and exterminating every last ounce of compassion and humanity from our laws. If you think that Black Lives don’t matter much to Trump and his cronies, just wait until he turns the Gruppenfuhrer loose! Think the Federal Courts will stop him? Just look at Trump’s “wholly owned and proud to brag about it” Supremes’ majority! And, he’s also “stacked” — effectively “packed” — the lower Federal Courts with loyalist ideologues.

America can no longer afford life-tenured judges who treat Trump as “normal” and are unwilling or incapable of “connecting the dots” among the dehumanization and demonization of migrants, institutionalized racism, and the end of American democracy. Immigrants’ rights are human rights; human rights are Constitutional rights; dehumanization of “the other” dehumanizes us all!

It’s past time that America stopped granting the privilege and responsibilities of life-tenure to those who won’t publicly adhere to those fundamental truths! Not rocket science! Just basic Constitutional law and human decency! Better judges for a better America! It all starts with a better President and a better Senate! That’s why this election might be our final chance to take back our country and preserve our democracy!

Due Process Forever!

PWS

10-28-20

2D CIR. JOINS 9TH IN REJECTING BIA’S PRECEDENT, MATTER OF MENDEZ, 27 I. & N. Dec. 219 (BIA 2018) (Holding Misprision of Felony is a CIMT) – Mendez v. Barr

https://www.ca2.uscourts.gov/decisions/isysquery/75dbe12d-c0a1-497d-848e-59f07e9aa4b2/3/doc/18-801_complete_opn.pdf

Mendez v. Barr, 2d Cir., 05-27-20, published

PANEL: PARKER, CHIN, and SULLIVAN, Circuit Judges.

OPINION BY: Judge Barrington D. Parker

DISSENTING OPINION: Judge Richard Sullivan

KEY QUOTE FROM MAJORITY:

Tomas Mendez was admitted to the United States in 2004 as a lawful

17 permanent resident. In 2010, he was convicted of misprision of a felony in

18 violation of 18 U.S.C. § 4. That section makes it a crime for one with knowledge

19 of the commission of a federal felony to conceal it and not promptly report it to

20 the appropriate authorities. 18 U.S.C § 4.

21 In 2016, upon returning from a trip abroad, the Department of Homeland

22 Security charged him, based on his misprision conviction, as inadmissible under

23 § 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act, because he was a

24 noncitizen convicted of a crime involving moral turpitude (“CIMT”). The

25 immigration judge sustained the charge, and the Board of Immigration Appeals

2

1 (“BIA”) affirmed. The BIA concluded that the violation of § 4 meant that he had

2 committed a CIMT. Matter of Mendez, 27 I. & N. Dec. 219, 225 (BIA 2018).

3 The BIA defines a CIMT as crime that is “inherently base, vile, or

4 depraved, and contrary to the accepted rules of morality and duties owed

5 between persons or to society in general.” Rodriguez v. Gonzales, 451 F.3d 60, 63

6 (2d Cir. 2006).1 For decades, the BIA never considered misprision a CIMT. Matter

7 of Sloan, 12 I. & N. Dec. 840, 842 (BIA 1966) (holding misprision does not

8 constitute a CIMT).

9 However, in 2002, the Eleventh Circuit held in Itani v. Ashcroft that a

10 conviction under § 4 is categorically a CIMT “because it necessarily involves an

11 affirmative act of concealment or participation in a felony, behavior that runs

12 contrary to accepted societal duties and involves dishonest or fraudulent

1 Unless otherwise indicated, in quoting cases all internal quotation marks, alterations, emphases, footnotes, and citations are omitted.

3

1 activity.” 298 F.3d 1213, 1216 (11th Cir. 2002).2 Following the Eleventh Circuit’s

2 lead, the BIA did an about face and determined in a case arising in the Ninth

3 Circuit that misprision was a CIMT. In re Robles-Urrea, 24 I. & N. Dec. 22, 25 (BIA

4 2006).

5 The Ninth Circuit rejected the BIA’s conclusion. The court held that

6 because § 4 required only knowledge of the felony and did not require an intent

7 to defraud, or conceal, or to obstruct justice, the statute encompassed conduct

8 that was not inherently base or vile. Robles-Urrea v. Holder, 678 F.3d 702, 710-12

9 (9th Cir. 2012). The Ninth Circuit reasoned that “[n]othing in the statute

10 prohibiting misprision of a felony references the specific purpose for which the

11 concealment must be undertaken,” let alone a purpose sufficient to qualify

12 misprision as a categorical CIMT. Id. at 710.

2 In 2017, the Fifth Circuit joined the Eleventh Circuit to hold that misprision is categorically a CIMT. Villegas-Sarabia v. Sessions, 874 F.3d 871, 878 (5th Cir. 2017). We respectfully decline to follow the Fifth and Eleventh Circuit’s approach. We believe that neither Itani nor Villegas-Sarabia satisfactorily supports the assertion that specific intent, or intent to defraud, can be read into § 4, especially when Congress did not include such a requirement and has shown elsewhere in the criminal code that it knows how to include such a requirement if it so chooses. The Eleventh Circuit in Itani reasoned only “that misprision of a felony is a crime of moral turpitude because it necessarily involves an affirmative act of concealment or participation in a felony, behavior that runs contrary to accepted societal duties and involves dishonest or fraudulent activity.” 298 F.3d at 1216. We are reluctant to adopt this reasoning because, “any crime, by definition, runs contrary to some duty owed to society” and “[i]f this were the sole benchmark for a crime involving moral turpitude, every crime would involve moral turpitude.” Robles-Urrea v. Holder, 678 F.3d 702, 709 (9th Cir. 2012). We are also unpersuaded by Villegas-Sarabia, where the Fifth Circuit relied almost exclusively on Itani’s reasoning.

4

1 Mendez moved to terminate removal proceedings and for cancellation of

2 removal, arguing that misprision is not a CIMT. Relying on the BIA’s decision in

3 Robles-Urrea, the IJ found Mendez removable as charged. The IJ also pretermitted

4 Mendez’s application for cancellation of removal, concluding that because his

5 2010 misprision conviction constituted a CIMT, it stopped the clock for

6 calculating length of residency and prevented him from establishing the required

7 seven years of continuous residency. In February 2018, the BIA issued a

8 precedential decision in this case. Matter of Mendez, 27 I. & N. Dec. at 219. It

9 reaffirmed its holding that misprision is a CIMT and declined to follow the Ninth

10 Circuit’s rejection of its reasoning in Robles-Urrea.

11 Mendez petitions for review. We have jurisdiction under 8 U.S.C. § 1252

12 (a)(2)(D). Mendez argues that a conviction for misprision is not a CIMT because

13 it does not categorically involve conduct that is inherently base, vile, or

14 depraved. He also argues that, contrary to the BIA’s contention, its decision is

15 not entitled to Chevron deference. We agree on both points.

16 DISCUSSION

17 The dispositive issue is whether misprision is a CIMT. Because the BIA has

18 no particular expertise in construing federal criminal statutes (as opposed to the

19 INA), we owe no deference to its construction of § 4. United States v. Apel, 571 5

1 U.S. 359, 369 (2014); Mendez v. Mukasey 547 F.3d 345, 346 (2d Cir. 2008).

2 Accordingly, we review de novo the BIA’s conclusion that Mendez’s conviction

3 under § 4 is a conviction for a CIMT. Rodriguez, 451 F.3d at 63.

. . . .

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

There is a “Circuit split:” The 5^th & 11^th Circuits agree with the BIA’s decision in Matter of Mendez; the 9^th and 2d Circuits reject it. That means it’s likiely to eventually be up to the Supremes to decide who’s right.

PWS

05-27-20

🇺🇸Due Process Forever!

Related posts:

Due Process Forever!

Related posts:

Related posts: