Judge Krause – immigrationcourtside.com

⚖️🗽🇺🇸👨🏻‍⚖️👩‍⚖️NEVER TOO LATE: 22 YEARS AGO, FIVE OF US DISSENTED FROM THE BIA’S “ROLLOVER” TO IMMIGRATION ENFORCEMENT IN THE “JOSEPH II” BOND CASE — Four Of Us Were “Exiled” For Our Views — Now, The 3rd Circuit Says We Were Right! — Gayle v. Warden!

Kangaroos — There was a time in the distant past when all BIA judges were not required to be members of the pro-immigration enforcement “mob!”
https://www.flickr.com/photos/rasputin243/
Creative Commons License.

Dan Kowalski reports for LexisNexis Immigration Community:

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/ca3-on-mandatory-detention-gayle-v-warden

CA3 on Mandatory Detention: Gayle v. Warden

Gayle v. Warden

“Under 8 U.S.C. § 1226(c), the Government must detain noncitizens who are removable because they committed certain specified offenses or have connections with terrorism, and it must hold them without bond pending their removal proceedings. This appeal asks us to decide what process is due when such detainees contend that they are not properly included within § 1226(c) and whether noncitizens who have substantial defenses to removal on the merits may be detained under § 1226(c). Because the District Court granted relief in the form of a class-wide injunction, we must also decide whether 8 U.S.C. § 1252(f)(1) permits class-wide injunctive relief. For the reasons set forth below, we agree with the District Court that § 1226(c) is constitutional even as applied to noncitizens who have substantial defenses to removal. But for those detainees who contend that they are not properly included within § 1226(c) and are therefore entitled to a hearing pursuant to In re Joseph, 22 I. & N. Dec. 799 (BIA 1999), we hold that the Government has the burden to establish the applicability of § 1226(c) by a preponderance of the evidence and that the Government must make available a contemporaneous record of the hearing, consisting of an audio recording, a transcript, or their functional equivalent. Because we also conclude that § 1252(f)(1) does not authorize class-wide injunctions, we will reverse the District Court’s order in part, affirm in part, and remand for the entry of appropriate relief.”

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

As as interesting footnote, like most of my colleagues at the Arlington Immigration Court, I always recorded bond hearings, long before this court ordered it as required by due process. One of the first things one of my colleagues told me when I arrived at Arlington was “record everything that happens in open court.” Recording protects everyone in the courtroom, including the judge!

It also helped our Judicial Law Clerks and interns “reconstruct” the bond record and understand our reasoning in the infrequent event that a “bond appeal” were filed. Otherwise, the “bond memorandum” would have to be based on the IJ’s notes and his or her recollection of what had transpired.

Talk about a defective system that should have been changed ages ago! But, that’s EOIR! And, it’s not going to improve without some major personnel changes and dynamic leadership that actually understands what happens in Immigration Court and is willing to think creatively, progressively, and change long-outdated practices and procedures, many of them in effect since EOIR was created in the early 1980s!

Here’s my favorite quote from Judge Krause’s opinion:

Having considered the standards urged by the Government and by Plaintiffs, we settle on one in between: To comport with due process, the Government must show by a preponderance of the evidence that the detainee is properly included within § 1226(c) as both a factual and a legal matter. See Addington, 441 U.S. at 423–24. It must show, in other words, that it is more likely than not both that the detainee in fact committed a relevant offense under § 1226(c) and that the offense falls within that provision as a matter of law. Cf. Joseph, 22 I. & N. Dec. at 809 (Schmidt, Chairman, dissenting) (contending that the Government must “demonstrate[] a likelihood of success on the merits of its charge” at the Joseph hearing).

Here’s a link to the full opinion, including my separate opinion, in Matter of Joseph, 22 I&N Dec. 799 (BIA 1999) (Joseph II):

https://www.justice.gov/sites/default/files/eoir/legacy/2014/07/25/3398.pdf

Here’s the full text of my concurring/dissenting opinion (very “compact,” if I do say so myself):

CONCURRING AND DISSENTING OPINION: Paul W. Schmidt, Chairman; in which Fred W. Vacca, Gustavo D. Villageliu, Lory D. Rosenberg, and John Guendelsberger, Board Members, joined

I respectfully concur in part and dissent in part.

I join entirely in the majority’s rejection of the Immigration and Naturalization Service’s appellate arguments and in the unanimous conclusion that, on this record, the Service is substantially unlikely to prevail on the merits of the aggravated felony charge. Therefore, I agree that the respondent is not properly included in the category of aliens subject to mandatory detention for bond or custody purposes.

However, I do not share the majority’s view that the proper standard in a mandatory detention case involving a lawful permanent resident alien is that the Service is “substantially unlikely to prevail” on its charge. Matter of Joseph, 22 I&N Dec. 3398, at 10 (BIA 1999). Rather, the standard in a case such as the one before us should be whether the Service has demonstrated a likelihood of success on the merits of its charge that the respondent is removable because of an aggravated felony.

Mandatory detention of a lawful permanent resident alien is a drastic step that implicates constitutionally-protected liberty interests. Where the lawful permanent resident respondent has made a colorable showing in cus- tody proceedings that he or she is not subject to mandatory detention, the Service should be required to show a likelihood of success on the merits of its charge to continue mandatory detention. To enable the Immigration Judge to make the necessary independent determination in such a case, the Service should provide evidence of the applicable state or federal law under which the respondent was convicted and whatever proof of conviction that is available at the time of the Immigration Judge’s inquiry.

The majority’s enunciated standard of “substantially unlikely to prevail” is inappropriately deferential to the Service, the prosecutor in this matter. Requiring the Service to demonstrate a likelihood of success on the merits of its charge would not unduly burden the Service and would give more appropriate weight to the liberty interests of the lawful permanent res- ident alien. Such a standard also would provide more “genuine life to the regulation that allows for an Immigration Judge’s reexamination of this issue,” as referenced by the majority. Matter of Joseph, supra, at 10.

The Service’s failure to establish a likelihood of success on the merits would not result in the release of a lawful permanent resident who poses a threat to society. Continued custody of such an alien would still be war- ranted under the discretionary criteria for detention.

In conclusion, mandatory detention should not be authorized where the Service has failed to demonstrate a likelihood of success on the merits of its charge. Consequently, while I am in complete agreement with the decision to release this lawful permanent resident alien, and I agree fully that the Service is substantially unlikely to prevail on the merits of this aggravated felony charge, I respectfully dissent from the majority’s enunciation of “substantially unlikely to prevail” as the standard to be applied in all future cases involving mandatory detention of lawful permanent resident aliens.

“Pushback” from appellate judges actually committed to the then-EOIR vision of “guaranteeing fairness and due process for all,” was essential! Once the “Ashcroft purge” “dumbed down” the BIA and discouraged dissent and intellectual accountability, the system precipitously tanked! It got so bad that it actually provoked harsh criticism and objections from Circuit Judges across the political/ideological spectrum.

Eventually the Bush II DOJ was forced to back off a few steps from their all-out assault on immigrants’ rights. But, the damage was done, and there were no meaningful attempts to restore balance and quasi-judicial independence at EOIR thereafter. Indeed, Ashcroft’s Bush-era successors blamed the Immigration Judges for the meltdown engineered by Ashcroft, while sweeping their own role in creating “disorder in the courts” under the carpet in the best bureaucratic tradition!

EOIR continued to languish under Obama before going into a complete “death spiral” under the Trump DOJ kakistocracy.

Despite unanimous recommendations from experts that he make progressive reform and major leadership and personnel changes at EOIR one of his highest priorities, AG Garland has allowed the mess and the fatal absence of progressive, due-process-focused, expert judges and best practices at EOIR fester.

Long-deposed progressive judges willing to speak up for due process and fundamental fairness, even in the face of a “go along to get along” culture at DOJ, are still making their voices heard, even decades after they were sent packing! It’s tragic that Garland is letting the opportunity to create a long-overdue and necessary independent progressive judiciary at EOIR slip through his fingers. Progressive Dems might “dream” of transforming the Article III Judiciary; but, it’s not going to happen while Dems are running a “regressive judiciary” at the “retail level” in the one potentially powerful judiciary they do completely control.

Sadly, vulnerable individuals, many of them women, children, and people of color, will continue to suffer the brunt of Garland’s indifferent approach to judicial justice at EOIR. Beyond that, however, his failure to transform EOIR into an independent progressive court system willing to stand up for constitutional due process, equal justice, racial equity, best judicial practices, and the rule of law undermines democracy and diminishes the rights of everyone in America!

🇺🇸Due Process Forever!

PWS

09-08-21

⚖️👨🏻‍⚖️🤡👎🏻WHERE’S THE COMPETENCE? — BIA’s Misguided Decade-Long Effort To Unlawfully Disqualify Man From Relief Ends Badly, With Third Court Of Appeals Reversal In The Same Case! — THIS is “Expert Adjudication?” — No Wonder The Backlogs Are Endless!

https://www2.ca3.uscourts.gov/opinarch/192594p.pdf

Larios v. Attorney General, 3rd Cir., 10-14-20

PANEL: SMITH, Chief Judge, HARDIMAN, and KRAUSE, Circuit Judges

OPINION BY: Judge KRAUSE

KEY QUOTE:

To determine if a noncitizen convicted of a state offense is subject to immigration consequences prescribed in federal law, the Supreme Court has instructed courts to compare whether the elements of the state offense define a crime that is the same as or narrower than the generic federal offense. See Descamps v. United States, 570 U.S. 254, 257 (2013). This

2

analysis, which has come to be known as the “categorical approach,” sounds simple in theory but has proven difficult (and often vexing) in practice, necessitating a “modified categorical approach” and generating an evolving jurisprudence around when the categorical or modified categorical approach applies.

That difficulty is borne out in the convoluted history of this case. Here, in what is now Lazaro Javier Larios’s third petition for review from prior reversals, the Board of Immigration Appeals (BIA) applied the categorical approach and held Larios ineligible for cancellation of removal under 8 U.S.C. § 1229b(b)(1) for having been convicted of “a crime involving moral turpitude.” 8 U.S.C. § 1182(a)(2)(A)(i)(I). Because we conclude the crime at issue—New Jersey’s terroristic-threats statute, N.J. Stat. Ann. § 2C:12-3(a)—should have been analyzed under the modified categorical approach, and, under that approach, the particular offense of which Larios was convicted is not a crime involving moral turpitude, we will grant the petition for review.

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

Three strikes and you’re out?⚾️

Yes, it’s unnecessarily complicated. That’s mostly Congress’s fault. But, what good is a supposedly “expert tribunal” that can’t correctly resolve a complicated issue after three tries spanning 10 years?

PWS

10-15-20

ANOTHER BIG DUE PROCESS VICTORY: 3rd. Cir. Reaffirms That Due Process Applies Equally To Discretionary Relief, Finds BIA Screwed Up “Ineffective Assistance Claim,” Rejects OIL’s Attack On Due Process — Calderon-Rosas v. Atty. Gen.

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/ca3-on-ineffective-assistance-calderon-rosas-v-atty-gen

Dan Kowalski reports from LexisNexis Immigration Community:

Daniel M. Kowalski

27 Apr 2020

ineffective assistance

CA3 on Ineffective Assistance: Calderon-Rosas v. Atty. Gen.

Calderon-Rosas v. Atty. Gen.

“Immigration law is a field in which fair, accurate factfinding is of critical importance. The need in immigration proceedings for effective attorneys who can competently marshal the evidence on each side is therefore of commensurate importance. Yet aliens—often poor, often non-English speaking—are disproportionately saddled with low-quality counsel, and the consequences can be drastic. This is a case in point. Petitioner Sergio Calderon-Rosas paid a now-disbarred attorney to represent him in removal proceedings, and Calderon-Rosas was ordered deported after that attorney failed to present key evidence supporting his application for cancellation of removal. Calderon-Rosas sought a new hearing, arguing that he was deprived of due process by, among other things, his attorney’s ineffective assistance, but the Board of Immigration Appeals (BIA) denied his claims. We must decide whether we have jurisdiction to review due process claims where a petitioner, like Calderon-Rosas, seeks only discretionary relief—and if so, whether Calderon-Rosas’s claims have merit. Because we conclude that we have jurisdiction and Calderon-Rosas plainly presents a meritorious ineffective-assistance claim, we will vacate the Board’s decision and remand.”

[Hats off to Petra D. Fist!]

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

Get the full decision at the link.

Panel: GREENAWAY, JR., KRAUSE, and RESTREPO,

Circuit Judges

Opinion by: Judge Krause

Here’s my favorite quote from court’s unanimous opinion written by Circuit Judge Krause:

The government’s argument, however, is one we have squarely rejected. We long ago recognized that due process claims can be asserted by petitioners seeking discretionary relief because “Congress instructed the Attorney General to establish an asylum procedure,” and “[w]hen Congress directs an agency to establish a procedure . . . it can be assumed that Congress intends that procedure to be a fair one.” Marincas v. Lewis, 92 F.3d 195, 203 (3d Cir. 1996) (addressing asylum claim). “[F]airness,” we explained, “mandate[s] that the asylum procedure promulgated by the Attorney General provide the most basic of due process.” Id.; see also Cham v. Att’y Gen., 445 F.3d 683, 691 (3d Cir. 2006) (“[A]lthough Cham has no constitutional right to asylum, he was entitled, as a matter of due process, to a full and fair hearing on his application.”); Ponce-Leiva v. Ashcroft, 331 F.3d 369, 373–74

8

(3d Cir. 2003) (“Ponce–Leiva’s brief . . . suggests that counsel’s ineffectiveness was a denial of due process. Accordingly, we may analyze the claim, at least within the parameters of due process.”).

More recently, in Serrano-Alberto v. Attorney General, 859 F.3d 208 (3d Cir. 2017), in exercising jurisdiction over claims for discretionary relief, we reiterated that “petitioners must receive a full and fair hearing that allows them a reasonable opportunity to present evidence on their behalf, and a decision on the merits of their claim by a neutral and impartial arbiter.” Id. at 213 (internal quotation marks and citations omitted). That procedural due process right, we explained, is comprised of “three key protections” in immigration proceedings: “(1) ‘factfinding based on a record produced before the decisionmaker and disclosed to him or her’; (2) the opportunity to ‘make arguments on his or her own behalf’; and (3) ‘an individualized determination of his [or her] interests.’” Id. (quoting Dia v. Ashcroft, 353 F.3d 228, 239 (3d Cir. 2003) (en banc)). In short, “[t]hroughout all phases of deportation proceedings, petitioners must be afforded due process of law.” Id.

So true. Yet, so often ignored in practice by the Supremes and Circuit Courts.

The current Immigration “Court” system is run by a politically biased enforcement official, Billy Barr, who solely controls judicial appointments, job retention, sets so-called “performance standards” intentionally weighted toward DHS Enforcement’s needs, establishes binding “precedents,” and changes results favorable to asylum seekers and other respondents when they don’t suit his nativist agenda. In this system, no respondent is receiving a “fundamentally fair hearing” before a “fair and impartial decision maker.”

Even if an Immigration Judge tries to act fairly in an individual case, as many do, they are still bound by the Attorney General’s pro-enforcement policies, and the specter of arbitrary reversal of results favorable to the respondent by so-called “certification” by the AG hangs over and materially compromises the entire system and every proceeding.

Indeed, by concentrating only on the small, and somewhat random, sampling of “petitions for review” that actually cross their desks, the Courts of Appeals and the Supremes are ignoring the systemic lack of fundamental due process that infects this entire dysfunctional and unfair system. Time to wake up and do the right thing!

Nice words are one thing. Actions an entirely different matter!

Due Process Forever!

PWS

04-28-20

FINALLY, 3D CIR. BLASTS THROUGH JURISDICTIONAL BS & TELLS U.S. DISTRICT COURT TO GIVE SOME MEANINGFUL JUDICIAL REVIEW TO SOME OF THOSE CAUGHT UP IN “LET ‘EM DIE IN MEXICO!” – But, Is It Too Little, Too Late For Most Of The 60,000 Poor Souls Illegally Condemned By The Regime To Deadly Misery On The Mexican Side of the Border? — E.O.H.C.; M.S.H.S. v. Sec. U.S. Dep’t of Homeland Security

https://www2.ca3.uscourts.gov/opinarch/192927p.pdf

E.O.H.C.; M.S.H.S. v. Sec. U.S. Dep’t of Homeland Security, 3d Cir., 02-13-20, published

PANEL: AMBRO, KRAUSE, and BIBAS, Circuit Judges

OPINION BY: Judge Bibas

KEY QUOTE:

This case raises the age-old question: “If not now, when?” Mishnah, Pirkei Avot 1:14. For aliens who are challenging their removal from the United States, the answer is usually “later.” But not always. And not here.

. . . .

Immigration claims ordinarily proceed from an immigra- tion judge through the Board of Immigration Appeals to the court of appeals by petition for review of a final removal order. Review by district courts is not the norm. But neither is this case. Most of the claims here cannot await a petition for re- view. By the time appellants are ordered removed to Guatemala (if ever), it will be too late to review their claims about their return to Mexico in the meantime. Only their statutory right-to-counsel claim will still be redressable. So the INA does not bar review of the remaining claims. And there is federal-question jurisdiction over the Flores claim. Because the United States is a party to the Flores Settlement Agreement, the contract claim is governed by federal common law and so arises under federal law. In short, the District Court has juris- diction over most of the claims. We will thus affirm the dis- missal of the statutory right-to-counsel claim and otherwise re- verse and remand for the District Court to address the merits.

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

The court actually makes one highly questionable assumption: That folks returned to Mexico will survive long enough to challenge the inevitable denial of their asylum claims in Barr’s biased “kangaroo courts.” The court fails to recognize/articulate the real driving force behind “Let ‘Em Die In Mexico:” Kill off the asylum applicants, make it impossible for them to raise their claims in the U.S. legal system by denying reasonable access, and/or demoralize individuals so that they will give up and accept their fate, even where it likely means death or torture. That’s what our “justice system” has become under the regime.

Perhaps, Article III Courts are starting to take notice of what Let ‘Em Die in Mexico is really about. The dead can’t get judicial review, at least in this world. We can only hope!

Too bad the awareness hasn’t extended to the 9th Circuit and their truly abominable, not to mention cowardly, decision in Innovation Law Lab v. McAleenan.

Article III Courts twiddle and fiddle, hem and haw, while real people die!

Due Process Forever; Complicit Courts Never!

PWS

09-14-20

3RD CIRCUIT’S JULY 4 MESSAGE TO ABUSED LATINAS: YOUR LIVES DON’T MATTER! – S.E.R.L v. Att’y Gen., JULY 3, 2018 — PLUS MY ESSAY: How “Go Along To Get Along” Judging Costs Innocent Lives!

172031p — SERL

S.E.R.L. v. Att’y Gen., No. 17-2031, 3rd Cir., July 3, 2018

HOLDING: Latinas fleeing persecution in the Northern Triangle can expect no protection under U.S. asylum laws in the Third Circuit.

PANEL: Circuit Judges Kent Jordan, Cheryl Ann Krause; Senior Circuit Judge Ira Morton Greenburg

OPINION BY: Judge Kent Jordan

KEY QUOTES:

S.E.R.L., a native of Honduras, seeks review of the denial of her application for asylum and statutory withholding of removal based on membership in a proposed particular social group that she characterizes as “immediate family members of Honduran women unable to leave a domestic relationship[.]”2 (Opening Br. at 21.) She fears persecution by two men, Jose Angel and Juan Orellana. Jose Angel abducted, raped, and continues to stalk one of S.E.R.L.’s daughters, K.Y.R.L. That daughter has already been granted asylum in the United States. Juan Orellana is S.E.R.L.’s stepfather and has repeatedly abused S.E.R.L.’s mother. S.E.R.L. fears that if she is removed to Honduras, both men will persecute her, Jose Angel because of her relationship to her daughter, and Juan Orellana because of her relationship to her mother. S.E.R.L. and two of her children fled here from Honduras in 2014. Within a month of their unlawful arrival, the Department of Homeland Security initiated removal proceedings pursuant to INA § 212(a)(6)(A)(i). S.E.R.L. conceded removability, and timely applied for asylum and statutory withholding of removal.4 In support of her claims for relief, she alleged past persecution and a fear of future persecution based on the relationships just noted.

. . . .

S.E.R.L. contends that the BIA’s change innomenclature from “social visibility” to “social distinction” is the only change the BIA has made to its test for assessing a“particular social group,” and, she says, that is a “distinction without a difference.” (Reply Br. at 5.) According to S.E.R.L., our decision in Valdiviezo-Galdamez forecloses application of the “particularity” and “social distinction”requirements. She also argues that the BIA plainly acknowledges that it has not changed course, nor has itprovided a “principled” explanation for why it continues to impose criteria we rejected in Valdiviezo-Galdamez. (Opening Br. at 31.)

In addition, those who have filed amicus briefs in this case point out that the BIA’s decisions in M-E-V-G- andW-G-R- could be read as inconsistent with certain other BIA decisions and contrary to the canon of ejusdem generis. Amici note, for example, that in W-G-R-, the BIA concludedthat “‘former members of the Mara 18 gang in El Salvadorwho have renounced their gang membership’ does not constitute a particular social group” in part because “the group could include persons of any age, sex, or background.”26 I. & N. Dec. at 221. Yet, even though the groups varied significantly across age, sex, and background, the BIA has also held that “Filipinos of Chinese [a]ncestry” constituted a “particular social group,” In re V-T-S-, 21 I. & N. Dec. 792, 798 (BIA 1997), and that “former member[s] of the national police” in El Salvador, Fuentes, 19 I. & N. Dec. at 662, likewise could be cognizable.15 And although the BIA expressly justified its new requirements as “[c]onsistent with the interpretive canon ‘ejusdem generis,’” M-E-V-G-, 26 I. & N. Dec. at 234, amici highlight that some of the enumerated grounds for persecution, including “political opinion,” and “religion,” 8 U.S.C. § 1101(a)(42)(A), may themselves be thought of as amorphous, diffuse, or subjective and therefore as insufficient bases for PSGs under M-E-V-G-’s requirements.

Those critiques raise legitimate concerns. The BIA has chosen to maintain a three-part test for determining the existence of a particular social group, and it has discussed how the revised particularity and social distinction requirements are not a departure from but a ratification of requirements articulated in its prior decisions. M-E-V-G-, 26 I. & N. Dec. at 234. And the arguable inconsistencies in its precedent highlight the risk that those requirements could be applied arbitrarily and interpreted to impose an unreasonably high evidentiary burden, especially for pro se petitioners, at the threshold. At the same time, however, we recognize thatM-E-V-G- is a relatively recent decision and clarity and consistency can be expected to emerge with the accretion of case law. That process is aided by M-E-V-G- itself, which addressed the specific concerns we raised in Valdiviezo- Galdamez, and explained why the particularity and social distinction requirements are different from one another and necessary. We now consider each of those requirements, beginning with social distinction, to explain why, notwithstanding our concerns, we conclude that the requirements are reasonable and warrant Chevron deference.

. . . .

Although S.E.R.L. also relies heavily on Matter of A-R-C-G-, 26 I. & N. Dec. 388 (BIA 2014), where the BIAhad held that “married women in Guatemala who are unable to leave their relationship” constituted a particular socialgroup, the Attorney General recently issued a decision overruling A-R-C-G-. See Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018).

. . . .

At the same time, we are mindful of the role that courts can and must play to ensure that agencies comply withtheir “obligation to render consistent opinions,” Chisholm v. Def. Logistics Agency, 656 F.2d 42, 47 (3d Cir. 1981), including, as relevant here, review of BIA decisions for inconsistent application of M-E-V-G’s requirements to similarly situated petitioners, routine rejection of proposed PSGs without reasoned explanation, and the imposition of insurmountable evidentiary burdens that would render illusory the opportunity to establish a PSG. However, just as we will carefully examine cases on petition for review to guard against such dangers, we anticipate that the BIA will scrutinize the IJ decisions that come before it with those considerations in mind and with an eye towards providing clear guidance and a coherent body of law in this area.

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

3^RDCIRCUIT’S JULY 4 MESSAGE TO ABUSED LATINAS: YOUR LIVES DON’T MATTER! – S.E.R.L v. Att’y Gen., JULY 3, 2018 – How “Go Along To Get Along” Judging Costs Innocent Lives!

By Paul Wickham Schmidt

U.S. Immigration Judge (Ret.)

Judge Kent Jordan, Judge Cheryl Ann Krause, and Senior Judge Ira Morton Greenburg of the U.S. Court of Appeals for the Third Circuit got together in Philly, ”our nation’s birthplace,” on July 3, 2018 to deliver an early July 4 message for courageous Latinas fleeing the Northern Triangle: Your lives don’t matter; we’re OK with femicide, rape, torture, and abuse of you and your children as long as it’s out of sight, out of mind in some foreigncountry where we don’t have to listen to your screams or come across your mutilated bodies!

These judges’ names and faces are worth remembering, since they went to such great lengths to avoid taking or acknowledging any legal or moral responsibility for their own actions. Obviously, they don’t want anyone to put names and faces with consequences.

While you wouldn’t recognize it from their 43 pages of intentionally legalistic, opaque, de-humanized, gobbledygook, there is actually a simple straightforward human tragedy behind their obfuscation and task shirking. Since they won’t tell it, I will.

“Ms. S.E.R.L”. (I’ll call her “Susana”) is a native and citizen of Honduras. Honduras is a patriarchal “failed state” with a corrupt and incompetent government that does little or nothing to control gang violence and violence against women, even encouraging it or participating in the abuses in many cases. By 2015, femicides in Honduras had far surpassed “epidemic levels.” For example, in 2013, one Honduran woman was murdered every fourteen hours!

Jose Angel abducted, raped, and continued to stalk Susana’s daughter “Karla.” Susana’s stepfather, Juan Orellana repeatedly abused Susana’s mother without any interference from the government. Juan also threatened Susana personally. Having witnessed what these men did to her closest relatives, her daughter and her mother, Susana reasonably believed that she would be next. Karla was granted asylum in the U.S. Susana fled to the United States with two other daughters and applied for asylum.

Since Karla was granted asylum in the U.S., Susana expected the same humane treatment, particularly since our Supreme Court once said that asylum laws should be generously applied to those with as little as a 10% chance of being persecuted. After all, Honduran women are a distinct, well-recognized class subject to essentially uncontrolled specifically gender-based violence in a patriarchal society. Additionally, the family members closest to Susana had already suffered severe harm in Honduras at the hands of two specific men. And, her daughter Karla was being allowed to stay.

The Immigration Judge supposedly believed Susana. However, he came up with some creative ways, pioneered by the BIA, to deny her protection. First, he found that she had no reason to fear harm because she hadn’t actually been harmed or killed by either Jose or Juan, despite the threats to her from Juan who obviously was capable of inflicting severe harm. Second, he found she didn’t fit within any “particular social group,” whatever that might mean on a particular day. The went on to make the amazing finding that being a Honduran woman would have nothing to do with the harm anyway.

Perhaps, the judge believed that Honduran men suffered the same high rate of femicide as did women. Or, maybe he believed that guys like Jose and Juan and Honduran society in general wouldn’t recognize that Susana was a Honduran woman closely related to two previously abused Honduran women. The judge observed that refugee laws weren’t meant to protect women like Susana from “generalized violence,” even though Susana’s claim wasn’t based on generalized violence but rather specific violence directed at her.

The judge basically told Susana to buck up and accept her fate. The judge appeared to have no idea what actually happens to women like Susana in Honduras. Susana appealed to the BIA which had very recently found that a virtually identical situation qualified a woman for asylum. But, the other woman wasn’t Susana, and the BIA found some reasons why it was OK to send Susana back to where she might reasonably expect be killed, raped, or abused by Jose and/or Juan.

Susana appealed to a “real court”, the Third Circuit Court of Appeals. Unlike the Immigration Judge and the BIA, judges on the Third Circuit don’t work for Attorney General Jeff Sessions. Jeff hates foreign nationals, women, and particularly brown-skinned foreign women fleeing from persecution in Central America. He thinks that they are all coming here for economic reasons and should just go stand in a line to immigrate. But, Jeff knows that the line doesn’t really exist, and that they will likely be killed or disabled shortly after return anyway. What Jeff really wants is an America where only nasty old White guys like him hold all the power and non-White folks stay away.

Judge Kent Jordan, Judge Cheryl Ann Krause, and Senior Judge Ira Morton Greenburg decided Susana’s case. They recognized that the BIA had rewritten asylum law so that fewer individuals would be protected and more rejected. They also recognized that Jeff Sessions had further rewritten the laws so that women like Susana would have no chance of protection. They also knew that there were lots of good arguments against what the BIA and Jeff were doing and in favor of protecting Susana.

But the judges found another Supreme Court case saying that they really didn’t have to decide legal questions if Jeff Sessions and his subordinates had done it for them. They thought that it made sense to rewrite protection law so that very few people, particularly women of color, would be protected. According to their thinking, the asylum law is intended to reject, not protect. They also thought that because these were relatively new interpretations, Jeff and the BIA should have a chance to kill or harm as many Latinas as possible before they as judges might think about whether it was a good idea. Of course, by then, it would be too late for Susana and others like her. And, these judges don’t really have any intent or will to hold Sessions accountable anyway.

So, Judge Jordan, Judge Krause, and Judge Greenburg told Susana that she should be separated from her daughter Karla and go back to Honduras with her other daughters to die, be raped, be beaten, or whatever. They knew that she would receive no help from the Government. But, they just didn’t care. Because Susana and her daughters were not their daughters or granddaughters and they wouldn’t have to hear her screams or look at their dead bodies. But, history has recorded what they did. Let the slaughter of innocents commence.

Better, more courageous judges might have said the obvious: that “women in Honduras” are a particularized, distinct, immutable/fundamental protected group; that Susana is a member of that group; and that any reasonable person in her position would have an objectively reasonable fear of persecution if returned to Honduras.

They also could have castigated the BIA and Jeff Sessions for intentionally manipulating asylum law so as not to grant protection to some of the most vulnerable and needy refugees among us. But, this “Gang of Three’ who decided Susana’s case would have been happy pushing the St. Louisand its cargo of Jewish refugees from Germany back out to sea again. Any of the judges who looked at Susan’s case could have had spoken out for saving her life and the lives of her daughters. None did!

After abdicating their judicial functions to hold the Executive accountable, this “Gang of Three” dishonestly expresses concerns about consistency and not creating “insurmountable evidentiary burdens.” Get serious!

Everyone knows Jeff Sessions is ordering Immigration Judges to crank out more removal orders with little or no Due Process. He has publicly stated his disdain for asylum seekers and women asylum seekers from the Northern Triangle. He has made it clear that he intends to “deconstruct:” the entire U.S. protection system until the only “consistency” will be that nobody gets asylum. And with cases like his decision in Matter of A-B-and spineless “go along to get along” precedents like this from the Article III courts, Sessions is implementing his real plan – insuring that nobody who comes to the border and seeks asylum passes “credible fear” and even gets to an Immigration Judge hearing.

Judges like these can shirk their responsibilities and hide behind mountains of hollow words and legal platitudes. But, they won’t escape the judgement of history for their lack of courage, backbone, integrity, and their unwillingness to stand up for human rights and human decency in the face of tyranny.

Happy July 4, 2018 from Judge Kent Jordan, Judge Cheryl Ann Krause, and Senior Judge Ira Morton Greenburg of the U.S. Court of Appeals for the Third Circuit! They can celebrate. But, for Susana, her family, and other vulnerable refugee like her, there will be no celebration. Indeed, they might not even live to see another July 4! That should make us all ashamed as a nation!

PWS

07-05-18

RAY OF HOPE? — 3RD CIR FINDS DUE PROCESS REQUIRES JUDICIAL REVIEW OF DHS ATTEMPTED EXPEDITED REMOVAL OF CHILD GRANTED SIJS STATUS — Issues Preliminary Injunction Against DHS Scofflaws! — Osorio-Martinez v. Attorney General

Osorio-Martinez v. Attorney General, No. 17-2159, June 18, 2008, published

3rd-SIJS3rd-172159p

PANEL: AMBRO, KRAUSE, and SCIRICA, Circuit Judges

OPINION BY:

KEY QUOTE:

Petitioners, four children of Salvadoran and Honduran origin and their mothers, appear before us for a second time to challenge their expedited orders of removal. In Castro v. United States Department of Homeland Security, 835 F.3d 422

3

(3d Cir. 2016), cert. denied, 137 S. Ct. 1581 (2017), we held that we lacked jurisdiction to review their claims under the Immigration and Nationality Act (INA) and that, while the Suspension Clause of the Constitution would allow an aggrieved party with sufficient ties to the United States to challenge that lack of jurisdiction, the petitioners’ ties were inadequate because their relationship to the United States amounted only to presence in the country for a few hours before their apprehension by immigration officers. Thus, weaffirmed the District Court’s dismissal of their petition.

Now, two years after their initial detention, Petitioners raise what, at first glance, appear to be the same claims. But upon inspection they differ in a critical respect: The children now have been accorded Special Immigrant Juvenile (SIJ) status—a protective classification designed by Congress to safeguard abused, abandoned, or neglected alien children who are able to meet its rigorous eligibility requirements. The protections afforded to children with SIJ status include an array of statutory and regulatory rights and safeguards, such as eligibility for application of adjustment of status to that of lawful permanent residents (LPR), exemption from various grounds of inadmissibility, and robust procedural protections to ensure their status is not revoked without good cause.

Because we conclude that the INA prohibits our review just as it did in Castro, we are now confronted with a matter of first impression among the Courts of Appeals: Does the jurisdiction-stripping provision of the INA operate as an unconstitutional suspension of the writ of habeas corpus as applied to SIJ designees seeking judicial review of orders of expedited removal? We conclude that it does. As we explained in Castro, only aliens who have developed sufficient

4

connections to this country may invoke our Constitution’sprotections. By virtue of satisfying the eligibility criteria for SIJ status and being accorded by Congress the statutory and due process rights that derive from it, Petitioners here, unlike the petitioners in Castro, meet that standard and therefore may enforce their rights under the Suspension Clause. Accordingly, we will reverse the District Court’s denial of Petitioners’request for injunctive relief.1

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

My quick and pointed analysis:

In Castro v. United States Department of Homeland Security, 835 F.3d 422 (3d Cir. 2016), cert. denied, 137 S. Ct. 1581 (2017), this court basically extinguished the Due Process rights of vulnerable asylum seekers in the United States caught up in the clearly, pathetically, and intentionally unfair Expedited Removal System. The court did so by disingenuously running over the statute, international law, and the Fifth Amendment to the U.S. Constitution, not to mention ordinary human morality.
Think of Castro as a “Modern Day Dred Scott case” and the clueless ivory tower wonks who decided it as mini-versions of the infamous Chief Justice Roger B. Taney.
To reward the Third Circuit for toadying up to Congress and the DHS, the DHS doubled down on their outrageous behavior by stomping on the rights of defenseless children. Even though they themselves had determined these kids should be allowed to remain in the U.S. by approving them for Special Immigrant Juvenile Status, they tried to remove them to a country where “it would not be in the child’s best interest to return.” Cruel and stupid. But, hey, we’re dealing with DHS in the age of Trump and Sessions.
Realizing that they were about to look like fools and also to have the blood of children as well as defenseless women on their hands, this panel of judges wrote 55 pages of fairly impenetrable legal gobbledygook hoping to cover up their mistake in Castro.
What they were really trying to say was pretty simple: The U.S. Government is engaging in outrageously arbitrary and capricious treatment of these children in clear violation of the 5th Amendment to the U.S. Constitution, and they should knock it off.
But, that doesn’t mean that the court has the courage or backbone to go back and correct Castro. They are just vainly hoping that by firing a limited “warning shot” across the Government’s bow on abuse of SIJS children, they can rein in DHS misconduct. Otherwise, the court might have to accept some responsibility for its own feeble legal reasoning and moral cowardice in Castro.
At least it’s something! And it shows that unlike Trump, Sessions, Nielsen, and the rest of the Administration scofflaws, Article III Judges do at some point have a sense of shame. Just not enough of one to do the right thing all the time.

Many thanks to Roxanne Lea Fantl of Richmond, VA for sending this my way.

PWS

06-23-18

BIA’S BOGUS BLATHER BLOWS BY BASICS IN TRYING TO “GET TO NO!” — Appellate Immigration Judges Invade IJ’s Authority To Reverse Favorable Credibility Determination — ALIMBAEV v. ATTORNEY GENERAL — When Will Article III Judges Stop Ducking The Glaring Constitutional Due Process Problems With The Current U.S. Immigration Court Structure?

http://www2.ca3.uscourts.gov/opinarch/164313p.pdf

Alimbaev v. Attorney General, 3rd Cir., 09-25-17, published

Before: JORDAN and KRAUSE, Circuit Judges,

and STEARNS, District Judge.*

* The Honorable Richard G. Stearns, United States District Judge for the District of Massachusetts, sitting by designation.

OPINION BY: Judge Krause

KEY QUOTE:

“This disconcerting case, before our Court for the second time, has a lengthy procedural history marked by conflict between the Board of Immigrations Appeals (BIA) and the Immigration Judge (IJ) and fueled by troubling allegations that Petitioner, an Uzbek national, relished watching violent terroristic videos, while apparently harboring anti-American sympathies. The issue on appeal, however, is whether the BIA correctly applied the clear error standard of review, as required, when reviewing the IJ’s factfinding in this case—an inquiry that highlights the role of faithful adherence to applicable standards of review in preserving the rule of law, safeguarding the impartiality of our adjudicatory processes, and ensuring that fairness and objectivity are not usurped by emotion, regardless of the nature of the allegations. Because we conclude that the BIA misapplied the clear error standard when reversing the IJ’s finding that Petitioner’s testimony was credible, we will grant the petition for review of the BIA’s removal order, vacate the denial of Petitioner’s applications for adjustment of status, withholding of removal, and protection under the Convention Against Torture (CAT), and remand once more to the BIA.”

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

Read the entire, rather lengthy, decision at the above link.

While the Third Circuit Judges were obviously unhappy with the performance of the BIA Panel here, I’ll bet decisions like this don’t hurt the Appellate Immigration Judges involved wth their boss, Jeff Sessions. Running over the regulations, Due Process, fairness, impartiality, and objectivity in the name of getting perceived “bad guys” out of the country is probably what “Old Gonzo” expects and even demands from his wholly owned judiciary.

There is a massive gap in expectations here. The Third Circuit speaks of “faithful adherence to applicable standards of review in preserving the rule of law, safeguarding the impartiality of our adjudicatory processes, and ensuring that fairness and objectivity.” But a U.S. Immigration Court System (including the BIA) headed by the “Immigration Enforcer in Chief,” could not possibly achieve “impartiality, fairness, and objectivity” either in appearance or in practice.

Sessions exudes anti-immigrant enforcement zeal, xenophobia, White Nationalism, and disregard for the rule of law as it is commonly understood on a daily basis. He also regularly misinterprets statistics to paint a false picture of an “alien crime wave” and positively gloried in the chance to publicly disrespect and threaten to remove Dreamers.

How could these very clear messages that Sessions despises both legal and undocumented immigrants of all types, considers them bad for America, and would like them gone and restricted in the future, possibly not get down to to the mere civil servants who work for him? Do you think that Sessions is really going to defend an Immigration Court and/or a BIA that publicly and regularly stands up for the Due Process rights of foreign nationals and their rights to favorable consideration under many provisions of the immigration law? That doesn’t fit with his “restrictionist myth” that all undocumented immigrants are “law breakers” who deserve to be “punished” by removal from the United States.

Look how Trump heaps disrespect on Article III Judges who don’t go along with his illegal programs. How do you think he’s going to react if one of Jeff Sessions’s wholly owned judges stands up to one of the Administration’s gonzo legal positions or illegal policies? And, neither Immigration Judges nor Appellate Immigration Judges have the protections of life tenure. Do you seriously think that Jeff Sessions is really going to stand up for the right of one of his judges to “Just Say No” to Trump. In any event, Sessions has the the totally inappropriate and legally questionable authority to reverse any Immigration Court decision he doesn’t like anyway. That robs the whole system of any semblance of fairness, impartiality, and objectivity.

So, the Third Circuit Judges are tiptoeing around the real problem here. You can’t possibly have “impartiality, fairness, and objectivity” from an Immigration Court run by Jeff Sessions, a man who throughout his long career has demonstrated none of those characteristics. At some point, the Third Circuit Judges and their Article III colleagues elsewhere are going to have to face up to the glaring constitutional due process problems with the current U.S. Immigration Court structure. The question is when?

PWS

09-27-17

🇺🇸Due Process Forever!

Related posts:

Related posts:

Due Process Forever!

Related posts:

Due Process Forever; Complicit Courts Never!

Related posts:

Related posts:

Related posts:

Related posts: