🇺🇸🗽😎👩🏽‍🏫 D.C. TEACHER OF THE YEAR BETH BARKLEY HELPS MIGRANTS SUCCEED! — “I have students that are changemakers. My students are leaders. … This is really for and because of them.”

Beth Barkley
Beth Barkley
English Teacher
Cardozo High
Washington, D.C.
D.C. Teacher of the Year 2023
PHOTO: WashPost

Lauren Lumpkin writes in WashPost:

By Lauren Lumpkin

October 11, 2023 at 5:55 p.m. ET

Beth Barkley thought she was attending a ceremony for International Day of the Girl on Wednesday. The high school English teacher stood in the library at Cardozo Education Campus as the citys mayor explained the importance of attaining educational equity across genders.”

But, in a ceremony focused mostly on her, Barkley learned that she had been named D.Cs 2024 Teacher of the Year.

This year we have a teacher of the year who serves as a role model not only for her students, but for other teachers across the District,” said D.C. Mayor Muriel E. Bowser (D). She has gone above and beyond her normal teaching duties to uplift student voices and inspire her students.”

Each year, educators across the city vie for the top honor, which comes with a $7,500 check and the chance to compete for National Teacher of the Year in a contest run by the Council of Chief State School Officers. Barkley, who teaches English and other classes to students who are new to the United States, was met with applause and sparkling pompoms wielded by students.

This is a huge honor,” she said to the room of teachers, staff members and several of her students. I have students that are changemakers. My students are leaders. … This is really for and because of them.”

. . . .

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Read and listen to the complete article at the above link.  Here’s an NBC 4 TV News special report on Beth’s achievements. https://www.youtube.com/watch?v=qvTPZ7fOt-Q.

A great reminder that each of us can choose to be part of the problem or part of the solution, like Beth!

🇺🇸Due Process Forever!

PWS

10-11-23

🤯🏴‍☠️ BIA BLUNDERS BUILD BACKLOG! — 4th Cir. (2-1) & 2d Cir. Continue To Call Out BIA’s Lawless, Anti-Immigrant Behavior In Dem Administration!  — PLUS, BONUS COVERAGE — Commentary From Michelle Mendez & Me!😎

Lady Injustice
“Lady Injustice” has found a home at Garland’s dysfunctional EOIR!
Public Realm

Dan Kowalski reports for LexisNexis Immigration Community:

https://www.ca4.uscourts.gov/opinions/221463.P.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca4-on-psg-political-opinion-and-cat-santos-garcia-v-garland

“Petitioner Christian Alberto Santos Garcia, a native and citizen of El Salvador, has twice travelled unlawfully into the United States — first in 2012, and again in 2016. In both instances, Garcia fled threats to his life and attacks carried out against him by the 18th Street Gang and the Salvadoran police. After seeking protection from removal before an immigration judge (the “IJ”) in 2016, Garcia was afforded relief — in the form of asylum, withholding of removal, and protection under the Convention Against Torture (the “CAT”) — by three separate IJ rulings. On each occasion, the Board of Immigration Appeals (the “BIA”) reversed the IJ rulings. Garcia, for his part, was removed to El Salvador in May 2022, and has awaited further developments in these proceedings from his home country. In this appeal, Garcia challenges and seeks reversal of three rulings made by the BIA — those being: (1) that the “particular social group” relied upon in connection with Garcia’s application for withholding of removal is not legally cognizable; (2) that Garcia was not persecuted in El Salvador on account of his political opinions; and (3) that Garcia failed to establish eligibility for CAT protection. As explained herein, we grant Garcia’s petition for review and reverse the BIA rulings in part, affirm them in part, and vacate them in part. We otherwise remand to the BIA for such further proceedings as may be appropriate.”

[Hats way off to pro bono publico counsel Jessica L. Wagner!]

Jessica Wagner ESQUIRE
Jessica Wagner
Associate
Gibson Dunn
D.C. Office
PHOTO: Gibson Dunn

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

cell/text/Signal (512) 826-0323

@dkbib on Twitter

dan@cenizo.com

Free Daily Blog: www.bibdaily.com

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https://www.ca2.uscourts.gov/decisions/isysquery/05b1e9ea-e5da-493a-8b94-45bc8e3d4757/3/doc/21-6043_opn.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca2-on-iac-prejudice-hardship-continuance-paucar-v-garland

“Petitioner Juan Pablo Paucar petitions for review of a January 22, 2021 Board of Immigration Appeals (“BIA”) decision (1) affirming an Immigration Judge’s denial of his application for cancellation of removal and (2) denying his motion to remand. The BIA rejected Paucar’s ineffective assistance of counsel claim, declined to remand for consideration of additional hardship relating to his cancellation application, and declined to remand to await adjudication of his U visa application. Paucar argues that the BIA (1) applied an incorrect standard when reviewing his ineffective assistance of counsel claim, (2) overlooked and mischaracterized his new hardship evidence, and (3) failed to follow precedent when denying his request for remand while awaiting the adjudication of his U visa application. We are persuaded by Paucar’s arguments. Accordingly, we GRANT Paucar’s petition for review, VACATE the BIA’s decision, and REMAND for further proceedings consistent with this opinion.”

[Hats off to Prof. Lindsay Nash and Paige Austin!]

Lindsay Nash
Lindsay Nash
Associate Professor of Law
Co-Director, Kathryn O. Greenberg Immigration Justice Clinic
Cardozo Law
PHOTO: Cardozo Law

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

cell/text/Signal (512) 826-0323

@dkbib on Twitter

dan@cenizo.com

Free Daily Blog: www.bibdaily.com

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In Santos-Garcia v. Garland, the BIA’s 6-year quest to wrongfully deny protection to Santos has been thwarted, for now. But, the matter remains far from finally resolved, even though an IJ has now properly granted Santos relief three separate times, only to be wrongly reversed by the BIA on each occasion!

Rather than insuring that individual justice is done, the BIA has acted to promote injustice, create needless delay, and demoralize IJ’s who are getting it right! In the meantime, the respondent has been removed to the country where he has a well-founded fear of persecution to await his fate. This is because the 4th Circuit denied a stay they should routinely have granted in an exercise of truly horrendous judicial misjudgment.

Now, the court majority fecklessly pontificates about the need for timely resolution (you’ve got to be kidding) while hinting, but not requiring, that the “Gang That Can’t Shoot Straight” should return the respondent now. Don’t hold your breath!

Here are three of my favorite quotes from Judge King’s majority opinion in Santos Garcia v. Garland.

Put simply, the BIA declined to “interact seriously” with the record before it in reviewing Garcia’s claim for CAT protection, and its failure in that regard requires a remand.

Should we not expect a supposed “expert tribunal” like the BIA should be to “seriously interact” with the record in life-or-death cases? Why aren’t Dems in Congress and everywhere else “all over Garland like a cheap suit” to stop this kind of judicial misbehavior in his “wholly owned courts?”

In closing, we recognize that Garcia’s removal proceedings have languished before the IJ and the BIA — and now this Court — for more than six years, leaving him in limbo and presently in harm’s way in El Salvador. We are also mindful that Garcia was only 15 years old when he sought to protect his cousin from the 18th Street Gang’s advances, setting off more than a decade of hardship and uncertainty. With that, we emphasize the “strong public interest in bringing [this] litigation to a close . . . promptly.” See Hussain v. Gonzales, 477 F.3d 153, 158 (4th Cir. 2007). And although we do not direct the affirmative award of any relief, we acknowledge the compelling case for protection that Garcia has made. If, on remand, the BIA affirms either the IJ’s award of withholding of removal or the award of CAT relief, the DHS and the Attorney General should swiftly “facilitate [Garcia’s] return to the United States” from El Salvador. See Ramirez v. Sessions, 887 F.3d 693, 706 (4th Cir. 2018) (directing the government to facilitate previously removed petitioner’s return to the United States pursuant to an Immigration and Customs Enforcement Policy Directive). Moreover, if the BIA determines that Garcia’s “presence 24 is necessary for continued administrative removal proceedings” on remand, the authorities should see to his prompt return. Id.

So, after six years bouncing around the system and three separate grants of asylum by an Immigration Judge, the 4th Circuit essentially “begs” the BIA to get it right this time! This is after the court itself curiously denied the respondent’s application for stay notwithstanding the rather obvious risk of irreparable harm (e.g., death, torture) and the equally obvious substance of his timely filed appeal.

What a way to run a “justice system” (or, in this case, not)! Both the Executive and the Judiciary should be totally embarrassed by their gross mishandling of this case! But, I see resolve from neither Branch (nor the ever-absent Legislature) to put an end to this systemic mockery of due process, fundamental fairness, and simple common sense!

Here, discovering the BIA’s error in rejecting Garcia’s proposed social group of “young male family members of his cousin Emily” is no herculean task. Social groups based on family ties have been consistently approved by this Court as providing a sound basis for asylum or withholding of removal applications. See, e.g., Salgado-Sosa, 882 F.3d at 457; Hernandez-Avalos v. Lynch, 784 F.3d 944, 949 (4th Cir. 2015); Cedillos-Cedillos v. Barr, 962 F.3d 817, 824 (4th Cir. 2020). Indeed, our pivotal 2011 decision on the matter — Crespin-Valladares v. Holder — recognized in no uncertain terms that “the family provides a prototypical example of a particular social group.” See 632 F.3d at 125. In tossing out Garcia’s proposed social group in March 2021, however, the BIA largely disregarded our precedent, providing no citation to or discussion of Crespin-Valladares. The BIA instead relied chiefly on its own then-existing precedent, set forth in the Attorney General’s 2019 L-E-A- II decision. As described above, L-E-A- II — which was vacated by the Attorney General in June 2021 and thus “lacks legal force” — “conflicted with [this Court’s] well-established precedent” recognizing families as cognizable social groups. See Perez Vasquez v. Garland, 4 F.4th 213, 227 n.11 (4th Cir. 2021). Surprisingly, the BIA paid little mind to L-E-A- II’s vacatur in its Reconsideration Order of 2022, doubling down on its earlier “particular social group” ruling and again inexplicably declining to apply Crespin-Valladares and its progeny.7

Notably, the “rule of Crespin-Valledares” — my case where the BIA erroneously reversed me — continues to have an impact! A dozen years post-Crespin and the BIA is still getting it wrong!  Why are these guys still on the appellate bench, setting negative precedents and ignoring favorable precedents? In a Dem Administration? Seriously!

Michelle N. Mendez
Michelle N. Mendez, ESQ
Director of Legal Resources and Training
National Immigration Project, National Lawyers Guild
PHOTO: NIPNLG

My friend Michelle Mendez, Director of Legal Resources and Training over at National Immigration Project offered some commentary on the Second Circuit’s decision in Paucar v. Garland.

Congratulations and thank you for your superb work, Lindsay! This case offers so much and seems like the CA2 delivered.

Here are a couple of excerpts from the decision that stood out to me:

  • “In a January 14, 2020 written decision, the BIA dismissed Paucar’s appeal and denied his motion to reopen and remand. Three months later—after Paucar filed a petition to review the BIA’s decision in this Court—the BIA sua sponte reinstated Paucar’s appeal and motion, noting that it had not “consider[ed] all of the evidence submitted by [Paucar].” Id. at 124.” [Do we know why the BIA sua sponte reinstated the appeal and motion?] LINDSAY NASH RESPONDS: “The BIA only sua sponte reopened the appeal and motion because Paige Austin (co-counsel extraordinaire, copied here) filed a PFR and identified the missing evidence early on, prompting OIL to agree to a remand.”
  • “Finally, the BIA concluded that remand to await the adjudication of Paucar’s U visa petition was unnecessary because Paucar could request a stay of removal from USCIS.” [Does anyone know what the BIA was referencing here? Later on the decision says DHS and not USCIS so perhaps it is a typo.] LINDSAY NASH RESPONDS:  “I think that the reference to USCIS that you flag was a typo and that it should have said DHS.”
  • “We conclude that the BIA should have applied the Sanchez Sosa factors in considering Paucar’s motion to remand as it pertains to his U visa or explained its reasoning for not doing so. [This is the first time that the CA2 answers the question of whether Sanchez Sosa applies to motions to remand or reopen filed during the pendency of an appeal where the noncitizen did not previously request such a continuance before the IJ].”

There is a great discussion on the BIA improperly applying Coelho (which they love to throw around in correctly) to the prejudice assessment and a paragraph discussing how the CA2 and other courts of appeals view unpublished BIA decisions.

Again, really great work and outcome! Thanks for sharing with all of us, Dan!

For a case distinguishing Coelho and applying a “reasonable likelihood of success” standard to a MTR, see Matter of L-O-G-, 21 I&N Dec. 436 (BIA 1996), written by me! The BIA ignores it or misapplies it in many cases. But, it’s still “good law!” Just another instance in which the BIA evades “older” precedents that could produce favorable outcomes for respondents!

In this case the IJ denied the respondent’s applications and ordered removal in May 2018, five years ago. Nobody contests that the respondent was ineffectively represented at that time.

Through new pro bono counsel, respondent Paucar filed a timely appeal with the BIA. Less than two months following the IJ’s decision, new counsel filed a copiously documented motion to the BIA to remand for a new hearing because of the ineffective representation.

Rather than promptly granting that motion for a new hearing, the BIA set in motion five years of dilatory effort on their part to avoid providing a hearing.  Obviously, several new merits hearings could have been completed during the time occupied by the BIA’s anti-immigrant antics!

Along the way, according to the Second Circuit, the BIA “improperly imposed a heightened standard,” “erred by discounting the impact of counsel’s ineffectiveness,” “improperly relied] on the IJ’s tainted findings,” “overlooked and mischaracterized the record evidence,” “erred by overlooking or mischaracterizing evidence,” “overlooked and mischaracterized material evidence,” and failed, without explanation, “to follow its own precedent.” What else could they have screwed up? The file number?

This would be highly unacceptable performance by ANY tribunal, let alone one entrusted with making life or death decisions about human lives and whose decisions in some instances have been unwisely insulated from effective judicial review by Congress. Individuals appearing before EOIR deserve better!  American justice deserves better! How long will AG Garland continue to get away with failing to “clean house” at America’s most dysfunctional court system and bring order, due process, fundamental fairness, legal expertise, and judicial professionalism to this long-overlooked, yet absolutely essential, foundation of our entire U.S. justice system!

Wasting time and resources looking for bogus ways to deny that which better, more expert, fairer judges could easily grant his had a huge negative impact on the EOIR backlog and is a driver of legal dysfunction throughout the immigration bureaucracy, and indeed throughout our entire legal system, all the way up to and including the Supremes! 

Start by fixing “that within your control!” That’s a simple message that Dems, unfortunately, don’t seem to get when it comes to immigration, human rights, and racial justice in America!   

🇺🇸 Due Process Forever!

PWS

07-14-24

🤯 🤯 DOUBLE TAKEDOWN: 4th Circuit Slams BIA For 1) Mindlessly Trying To “Snuff” Allies From Afghanistan War☠️; & 2) Producing Incomprehensible Legal Gibberish 🤪 In Life Or Death Cases! — Two Recent Cases Show Deep Quality, Expertise Problems In Dem-Controlled “Courts” At The “Retail Level” Of U.S. Justice! 🤯🤬

Ben Winograd
Ben Winograd, Esquire
Immigrant & Refugee Appellate Center
Falls Church, VA

1. Ben Winograd, Esquire, is an all-star appellate litigator who would have made a great BIA Chair/Chief Appellate Judge!

Dan Kowalski @ LexisNexis reports:

CA4 on Internal Relocation: Ullah v. Garland

https://www.ca4.uscourts.gov/opinions/221026.P.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca4-on-internal-relocation-ullah-v-garland

“The United States’ war in Afghanistan required regional allies willing to aid the effort. One such ally was Shaker Ullah, a Pakistani businessman who sold supplies to coalition forces. This invoked the wrath of the Pakistani Taliban, which demanded exorbitant payments from Ullah under threat of death. Ullah repeatedly refused, and the Taliban attempted to carry out its threat, promising to hunt him until it succeeded. After losing his business, home, and nearly his life, Ullah fled to the United States seeking asylum. The Immigration Judge and Board of Immigration Appeals both recognized that Ullah suffered past persecution entitling him to a presumption that the Taliban would continue to target him if he returned to Pakistan. But they agreed with the government that because Ullah lived in Islamabad (the capital of Pakistan) for a few weeks without the Taliban finding him, he could live in a new area of the country without fear of reprisal. We disagree. Ullah’s brief sojourn to Islamabad—where he never left the house— doesn’t rebut the presumption that a notorious terrorist organization continues to imperil his life. Since the record would compel any reasonable adjudicator to conclude Ullah faces a well-founded threat of future persecution, we grant Ullah’s petition for review, reverse the Board’s denial of Ullah’s preserved claims, and remand with instructions that the agency grant relief.”

[Hats way off to superlitigator Ben Winograd!  Listen to the oral argument here.]

pastedGraphic.png

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

cell/text/Signal (512) 826-0323

@dkbib on Twitter

dan@cenizo.com

Free Daily Blog: www.bibdaily.com

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Tamara Jezic ESQUIRE Jezic & Moyse Fairfax, VA PHOTO: J&M

2.  “Legacy” Arlington Immigration Court superstar Tamara Jezic runs circles around EOIR and OIL!

Dan Kowalski @ LexisNexis reports:

Multiple Failures Trigger Remand to BIA: Chen v. Garland

https://www.ca4.uscourts.gov/opinions/211371.P.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/multiple-failures-trigger-remand-to-bia-chen-v-garland

“Petitioner Zuowei Chen is a native of China admitted to the United States on a student visa in 2009. Chen now seeks review of a Board of Immigration Appeals order denying his applications for asylum, withholding of removal, and protection under the Convention Against Torture. If removed to China, Chen fears, he will be persecuted and tortured by Chinese authorities, who in 2008 allegedly imprisoned and violently beat him because of his Christian beliefs and practices. We find there are aspects of the agency’s decision that require clarification before we can meaningfully review Chen’s claims. Accordingly, we vacate the decision of the Board of Immigration Appeals and remand for further explanation, consistent with this opinion.”

[Hats off to Tamara Jezic!  https://jezicfirm.com/attorneys/tamara-jezic/ Listen to the oral argument here.]

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

cell/text/Signal (512) 826-0323

@dkbib on Twitter

dan@cenizo.com

Free Daily Blog: www.bibdaily.com

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Notably, and refreshingly, in Ullah, the 4th Circuit took the unusual step of directing the BIA to grant asylum, rather than just remanding for the BIA to screw it up again! In Chen, Trump appointee Circuit Judge Marvin Quattlebaum was part of the unanimous panel! Condemnation of EOIR’s deficient performance is uniting Article III jurists across ideological lines!

The GOP is “out for Garland’s scalp” for all the WRONG reasons! It’s actually Dems who should be demanding an accounting for his inexcusable, miserable, democracy-eroding (non)performance at EOIR!

Garland’s mess at EOIR isn’t “theoretical,” “academic,” or “speculative!” It’s ACTUALLY endangering lives, eroding democracy, and creating unnecessary chaos on a daily basis! His intransigence is also diverting HUGE amounts of resources that could be used to DEFEND American democracy, rather than seeking to hold a tone-deaf Dem Administration accountable!

In the meantime, Dems are fecklessly moaning and groaning about a lawless and ethics-free Supremes. Yet, a Dem Administration is operating a huge, nationwide “court” system presenting these same problems, in spades!♠️

And, the victims of EOIR’s substandard judging are overwhelmingly people of color, literally fighting for their lives in a dysfunctional system that the Biden Administration is unwilling and/or unable to fix. In these cases, the victims were fortunate enough to be represented by two of the “best in the business,” Ben Winograd and Tamara Jezic. But, too many others face this biased and unfair system unrepresented, a situation that Garland not only has failed to remedy, but has made worse in some ways.  What “message, does this send, particularly to the younger cohort of “social justice” voters whom the Dems are counting on for the future?

Trial By Ordeal
Following the 2020 election, human rights advocates and experts expected and deserved dramatic, long overdue progressive improvements in justice at EOIR. Instead, Garland inexplicably has retained many of the most regressive features of injustice at EOIR, developed and reinforced during the Trump years. Frustration abounds, while justice for the most vulnerable among us suffers under a Dem Administration! Woman Being “Tried By Ordeal”
17th Century Woodcut
Public Realm
Source: Ancient Origins Website
https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160

How bad is EOIR under Garland? One informed observer put it this way:

BIA staff attorneys are rewarded for the number of signed decisions per month. With the present make-up of the Board, their only incentive is to crank out denials.

Dems love to talk about “change!” The GOP actually achieves it, even though the results are overwhelmingly negative, regressive, and existentially damaging to democracy! Something’s got to give here!

🇺🇸 Due Process Forever!

PWS

07-08-23

🤮☠️DUE PROCESS DISASTER IN 4TH CIR! — Trump Judges Strip Individuals In “New American Gulag” ⚰️ Of Constitutional Rights & Human Dignity — Dissenter, Chief Judge Urbanski (WD VA) The Only Panel Member To Follow Constitution!

Gulag
Inside the Gulag
In the fine tradition of Josef Stalin, like US Presidents before him, President Biden finds it useful to have a “due process free zone” to stash people of color.

The case is Miranda v. Garland, and it’s published:

https://www.ca4.uscourts.gov/opinions/201828.P.pdf

Quote from Judge Marvin Quattlebaum’s wrong-headed decision, joined by fellow Trump appointee Judge Julius Richardson:

QUATTLEBAUM, Circuit Judge:

8 U.S.C. § 1226(a) permits the Attorney General to detain aliens1 pending their

removal hearings. And the Attorney General has adopted procedures for making that discretionary decision. Under those procedures, an alien is given notice and three opportunities to seek release by showing they are neither a flight risk nor a danger to the community.

A district court determined that a class of aliens had a likelihood of establishing that those procedures violated the Due Process Clause of the Fifth Amendment of the United States Constitution. That court then issued a preliminary injunction ordering, on a class- wide basis, that to continue detaining an alien under § 1226(a), the government must prove by clear and convincing evidence that an alien is either a flight risk or a danger to the community. The district court also required immigration judges, again on a class-wide basis, to consider an alien’s ability to pay any bond imposed and consider alternatives to detention.

However, under 8 U.S.C. § 1252(f)(1), the district court lacked jurisdiction to issue class-wide injunctive relief that enjoined or restrained the process used to conduct § 1226(a) bond hearings. As for the individual relief issued by the district court, the detention procedures adopted for § 1226(a) bond hearings provide sufficient process to

1 We realize that the use of the term “alien” has been the subject of some debate. See e.g., Martinez Rivera v. U.S. Att’y Gen., No. 20-13201, 2021 WL 2836460, at *7 (11th Cir. July 8, 2021). We use the term because Congress used it in the text of the applicable statutes, and the same term is used in the applicable regulations. Our use of the term “alien” is not intended to express any opinion, pejorative or otherwise, about the plaintiffs in this action or others challenging their detention under our immigration laws.

3

satisfy constitutional requirements. For that reason, the aliens are unable to establish a likelihood of success on their due process claims. Nor have they shown that they are likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in their favor or that an injunction is in the public interest. Therefore, we vacate the district court’s preliminary injunction order.

A  better quote from the only Panel Judge to get it right, Chief Judge Michael Urbanski of the WDVA, (an Obama appointee) sitting by designation:

While I am mindful of the executive’s vast authority over immigration, it must still

comport with constitutional safeguards. With this balancing in mind, requiring a detained noncitizen to prove he is not a danger to the community or risk of flight is unconstitutionally onerous on an already vulnerable group of defendants and violates due process. In sum, I respectfully dissent and would affirm the district court’s conclusion that the Due Process Clause requires the government to bear the burden of proof at § 1226(a) detention hearings and remand the case to the district court for consideration of § 1252(f)(1) and the availability of class-wide declaratory relief.

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Well, at least one judge got it right!

The Round Table ⚔️🛡 filed an amicus brief in support of the respondents in this case. Additionally, Round Table Member Judge Denise Slavin filed an affidavit (cited by the USDJ) before the United States District Court for the District of Maryland, at Baltimore. There, Hon. Catherine C. Blake, Senior District Judge, correctly ruled for the respondents. The Trump DOJ appealed, and Garland decided to continue to advance the prior Administration’s anti-due-process position before the Fourth Circuit. 

Gosh, and Dem politicos wonder why it’s hard for them to gin up enthusiasm for the midterms!

🇺🇸Due Process Forever!

PWS

05-15-22

 

👎🏽IN RACE TO DENY, BIA BLOWS BY OWN REGS IN LATEST 4TH CIR. REJECTION! — Garcia-Hernandez v. Garland (Changed Country Conditions) — Congrats To Ben & Alex!😎🗽⚖️

Kangaroos
“Every day is ‘Kangaroo Field Day’ @ Garland’s DOJ!” When it comes to immigrant justice, “good enough for government work” is the mantra!
https://www.flickr.com/photos/rasputin243/
Creative Commons License

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/ca4-on-changed-country-conditions-garcia-hernandez-v-garland

Dan Kowalski reports from LexisNexis Immigration Community:

CA4 on Changed Country Conditions: Garcia Hernandez v. Garland

Garcia Hernandez v. Garland

“The BIA “affirm[ed] the Immigration Judge’s decision to deny reopening because the respondent has not sufficiently demonstrated that his brother’s murder represents a material change in country conditions that would affect his eligibility for asylum.” A.R. 4. As we noted above, while (b)(4) requires “changed country conditions,” (b)(3)does not. Thus, the BIA’s reference to a “material change in country conditions” and the analysis that followed shows that the BIA applied § 1003.23(b)(4). See A.R. 4. In applying the standard of § 1003.23(b)(4) to a timely filed motion, the BIA acted contrary to law. … The question for the BIA to consider in evaluating Garcia Hernandez’s motion to reopen was whether Garcia Hernandez offered, in the proper from and with the appropriate contents, evidence that was material and not previously available at the initial hearing. 8 C.F.R. § 1003.23(b)(3). Because the BIA did not analyze that question, and instead evaluated the issue under § 1003.23(b)(4), the BIA abused its discretion. … The BIA held that Zambrano did not apply because the changed circumstances there took place before the petitioner filed a time-barred petition even though here, the purported changed circumstances took place after the time-barred petition was filed and adjudicated. But nothing in Zambrano suggests its holding or reasoning was limited in the way the BIA suggests. Thus, Zambrano’s framework in examining changed circumstances should have been applied to Garcia Hernandez’s asylum application. … [W]e grant Garcia Hernandez’s petition for review. We vacate and remand with instructions to the BIA to consider Garcia Hernandez’s motion to reopen under the appropriate standard. The BIA should also address Garcia Hernandez’s asylum application under the framework of Zambrano and conduct any further proceedings consistent with this opinion.”

[Hats off to Benjamin J. Osorio and Alexandra Ribe!]

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Many congrats to Ben and Alex, who were both “regulars” at the Arlington Immigration Court! Alex is also a former Arlington Intern and a “charter member” of the NDPA!😎 

The 4th Circuit decision was written by Judge Marvin Quattlebaum, a Trump appointee, for a unanimous panel that  included Judge Motz and Judge Thacker. While Judge Q doesn’t always “get it right,” his cogent analysis of the BIA’s lawless behavior in this case is “spot on.”

How does a supposedly “expert” tribunal like the BIA blow the “easy stuff” — like following their own regulations? Clearly it has something to do with an unduly permissive “haste makes waste/rush to deny” anti-immigrant culture at EOIR that Garland has not effectively addressed!

Another obvious problem: Why were Garland’s lawyers at OIL defending this obviously wrong decision?  You don’t have to be an “immigration guru” to read the regulations! 

Sadly, it’s not the first time under Garland that OIL has chosen to waste judicial resources and undermine our justice system by “defending the indefensible.” It’s what happens when leaders promote an “anything goes/no accountability/good enough for government work” atmosphere!

There are deep substantive, structural, personnel, attitude, and “cultural” problems at EOIR and DOJ. That, over his first year in office, Garland has chosen to ignore these glaring malfunctions of justice @ Justice is an ongoing national disgrace!🤮 

It doesn’t have to be this way! But, unfortunately, it is! And, even more disturbingly, no meaningful improvements appear to be on the horizon! That’s a deadly ☠️⚰️ outlook for American justice and for those poor souls caught up in Garland’s unfair, broken, dysfunctional “court” system that bears little resemblance to any commonly understood notion of what a fair, impartial, subject matter expert court should be in America!🤯

🇺🇸 Due Process Forever!

PWS

03-04-22

⚖️4TH CIRCUIT:  BIA ABUSED DISCRETION, BLEW ANALYSIS, FAILED TO FOLLOW PRECEDENT IN MINDLESS DENIAL OF CONTINUANCE FOR U VISA APPLICANT— Garcia Cabrera v. Garland — A Microcosm Of Garland’s Dysfunctional, Backlog-Building Immigration Courts & His Disgraceful Defense Of The Indefensible In The Article IIIs! — Why Garland’s Inept & Disinterested Performance @ EOIR Is A “Nail In The Coffin” Of American Democracy! ⚰️

Melody Bussey
Melody Busey ESQUIRE
Associate Attorney
Devine & Beard Law Office
Charleston, SC
PHOTO: Devineandbeard.com
Devine & Beard
It should have been a 2-minute “no brainer” administrative closing @ EOIR. Instead, it took two years of tough, smart, dedicated litigation by their firm to get justice in Garland’s broken and dysfunctional “Clown Court” system. But, in the end, Melody Busey, Mark Devine, & Ashley Beard got long-overdue justice for their client by pummeling “Garland’s DOJ Clown-ocracy” in the Fourth Circuit! Should justice in America really be this difficult and uncertain? Garland seems to think so! — Mark J. Devine & Ashley R. Beard
Principal Partners
Devine & Beard Law Office
Charleston, SC
PHOTO: Devineandbeard.com

https://www.ca4.uscourts.gov/opinions/201943.P.pdf

Garcia Cabrera v. Garland, 4th Cir., 01-06-21, published

PANEL: MOTZ, QUATTLEBAUM, and RUSHING, Circuit Judges.

OPINION: Judge Motz

CONCURRING OPINION; Judge Rushing

KEY QUOTE:

In sum, we hold that the BIA and IJ abused their discretion in denying Garcia

Cabrera’s motion for a continuance. Both the BIA and IJ departed from the established policies set forth in precedential opinions in holding that Garcia Cabrera failed to show good cause. Under Matter of L-A-B-R-, the BIA and IJs must consider two factors above all others: (1) the likelihood that USCIS will grant the movant’s U visa application, and (2) whether a U visa would materially affect the outcome of the movant’s deportation proceedings. 27 I. & N. Dec. at 406. Both of these factors weigh in Garcia Cabrera’s favor. The BIA recognized the existence of these factors but failed to consider whether or how they applied, focusing solely on less significant secondary factors. And although the IJ did address the primary factors, he nonetheless abused his discretion by failing to recognize that a U visa would materially affect the outcome of the deportation proceedings.

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

Many, many congrats to NDPA stars Melody Busey, Mark J. Devine, and Devine & Beard Law Office in Charleston, SC, for their perseverance and outstanding advocacy in this case! As I’ve said before, it’s painfully obvious (to anyone but Garland and his team) that the wrong folks are on the bench and in key policy positions at EOIR!

Notably, this decision comes from an ideologically diverse 4th Circuit panel with two Trump appointees. Clearly, this panel took more time to understand the record and carefully and correctly analyze the applicable law and policy considerations than did the “faux experts” at EOIR, at either the trial or appellate levels! 

Although I don’t always agree with Judge Rushing, her concurring opinion here shows that she took the time to carefully read the record, understand the applicable law, and clearly explain her position in straightforward, understandable terms. In other words, she treated this case like the important life or death matter it is, rather than “just another immigration case on the assembly line.” And, that led her to get the “bottom line” right. That’s a degree of judicial professionalism that we seldom, if ever, see from Garland’s EOIR these days.

That we get better performance on immigration cases from some Trump appointees on the Article IIIs than from Garland’s “wholly-owned EOIR” shows the total disconnect in the Biden Administration’s approach to the ongoing, unmitigated disaster unfolding every day in our broken and dysfunctional Immigration Courts. Unlike the Article IIIs, the Immigration Courts, now sporting an astounding, largely self-created 1.5+ million and growing case backlog, are a “wholly owned subsidiary” of the Administration and Garland’s DOJ!

When you’re in an EOIR “programmed to deny” by White Nationalist nativist overlords like Sessions, Barr, and Miller, you do dumb things and churn out sloppy work. 

Indeed, “virtual discussion” of this case spurred some “PTSD” recollections by NDPA  attorneys of other horrible, lawless decisions by this particular Immigration Judge, who never should have been on the bench in the first place. Incredibly, this judge, a member of the disgraceful “90% Denial Club” that has helped create disgusting “Asylum Free Zones” at EOIR throughout America, was appointed by the tone-deaf Obama Administration! 

The idea that there weren’t better-qualified candidates out there at the time in private practice, the NGOs, clinical education, or even the government is simply preposterous! Failure of Dems to realize the progressive potential of the Immigration Courts has a long and disreputable history! Indeed, EOIR under Garland looks and performs disturbingly similar to EOIR under Miller, Sessions, and Barr!

While this particular IJ has retired, too many other unqualified judges appointed in the past under selection systems stacked against outside advocates and experts remain on the bench, at both the trial and appellate levels, under Garland.

Here’s part of the “Garland Tragedy/Missed Opportunity.” He actually has at least a few folks among his judiciary ranks who have experience and actually understand U visas and how to deal properly, justly, and efficiently with them. I guarantee that none of them would have come up with this inane and wasteful performance of judicial ineptitude and, frankly, anti-immigrant bias!

Why aren’t those folks “running the show” on the BIA, rather than the “deny anything for any reason” holdover gang that (save for Judge Saenz) Garland has “adopted as his.”  Excluding Judge Saenz, I doubt that collectively the appellate judges on the BIA have ever handled a U visa case for an applicant. They are blissfully clueless as to both the practical stupidity and traumatic human consequences of the horrible decision-making exhibited at both the trial and appellate levels in this debacle! What’s a wrong with this bizarre picture of Dem incompetence and malfeasance?

Interesting that White Nationalist xenophobes like Sessions, Barr, and Miller had no problem whatsoever using their positions to further lies and myths about asylum seekers and other migrants and acting to weaponize the Immigration Courts (including “packing”them with unqualified and questionably qualified judges, unfairly selected) against individuals and their lawyers seeking justice (following eight years of indolent mismanagement of EOIR by politicos in the Obama DOJ which “teed EOIR up” for Trump and Miller).

By contrast, Dems appear afraid to speak out and act with resolve and purpose on due process, fundamental fairness, human rights, impartial professional expert judging, and human dignity — at our borders and in our Immigration Courts. Why? 

Is is because deep down they don’t really believe in racial justice and equal justice for all? Because they can’t accept the humanity of migrants? Why is Garland still carrying out many of Stephen Miller’s White Nationalist policies and using a “court system” unfairly “packed” with those selected because they were perceived to be willing to carry out the Trump/Miller White Nationalist, anti-immigrant agenda?

More than nine months after taking over at “Justice,” why is Garland still defending clearly wrong, counterproductive, and frivolous EOIR decisions like this? Why should simple justice for migrants require a two-year battle by members of the NDPA to be realized? 

And, I daresay that there are other panels, in other Circuits, that would have “rubber-stamped” EOIR’s errors. Lack of professionalism and judicial expertise at EOIR, promoted and defended by Garland, breeds wildly inconsistent results and turns justice in life or death cases into a “crap shoot.” That undermines and builds contempt for the entire Federal Justice System and exposes deep flaws at the DOJ that Garland has ignored!

In a functioning system, this case involving someone who is prima facie qualified to remain in the US: 1) should never have been brought by DHS, and 2) if brought, should have been promptly administratively closed or terminated without prejudice by EOIR. A competent judge might also have considered sanctioning DHS counsel for pushing ahead with this case with no justification whatsoever. In other words, conducting frivolous litigation!

That’s how you: 1) cut cases that don’t involve legitimate enforcement issues from the intentionally bloated EOIR docket; 2) reduce incredible, largely self-created backlogs; 3) hold DHS accountable for wasting court time; 4) deliver a long overdue “shape up or ship out” message to poorly performing Immigration Judges (like those in this case) at both the trial and appellate levels; 5) promote consistency and equal justice for all; 6) end the reprehensible practice of “Aimless Docket Reshuffling” at EOIR; and 7) stop wasting the time of the Article IIIs by defending garbage like that churned out at both the IJ and BIA level here!

Garland has demonstrated cluelessness, timidity, and intransigence in all of the foregoing essential areas of long overdue radical, yet common-sense and basically “no brainer,” progressive reforms at EOIR! You can’t get there with the current, holdover BIA! That’s as clear today as it was the day Garland was sworn in as AG.

The Biden Administration’s gross failure to bring progressive leadership, scholarship, competency, quality, and professionalism to a poorly performing, dysfunctional EOIR is corroding our justice system! Seems like an incredibly bad stance for an Administration claiming to be the “last best hope” for preserving American democracy, heading into midterms with a significant portion of its reliable progressive base angry and turned off by its contemptuous mal-performance on immigration, human rights, racial justice, and EOIR reforms! 

Sometimes, just asking for financial support and votes isn’t enough! You have to earn it with bold actions! 

🇺🇸Due Process Forever!  

PWS

01-08-21

⚖️🗽IN ANOTHER DEFEAT FOR NATIVIST ANTI-ASYUM AGENDA @ EOIR, 4TH CIR. FINDS “UNREASONABLE” BIA’S ATTEMPT TO DEFINE PSG IN MATTER OF W-G-R- SO THAT NOBODY EVER QUALIFIES! — Amaya v. Rosen

 

Juan Carlos Amaya v. Jeffrey A. Rosen

Amaya v. Rosen, 4th Cir., 01-25-21, published

PANEL: THACKER, RICHARDSON, and QUATTLEBAUM, Circuit Judges.

OPINION BY: JUDGE QUATTLEBAUM

DISSENT: JUDGE RICHARDSON

KEY QUOTE FROM MAJORITY:

Juan Carlos Amaya, a citizen of El Salvador, seeks to avoid deportation to that country, fearing persecution on account of membership in the PSG “former Salvadoran MS-13 members.”1 Appellant’s Br. at 13–16. For that reason, he argued to an immigration judge (“IJ”) that his removal from the United States should be withheld.2 After the IJ denied Amaya’s claims, he appealed to the Board of Immigration Appeals (“BIA”). The BIA dismissed Amaya’s appeal, determining that the “former Salvadoran MS-13 members” PSG was “too diffuse” to satisfy the particularity requirement. J.A. 4. Assuming we must afford Chevron deference to the BIA’s decision, our question is whether we think the BIA’s decision is reasonable. Because we do not, we grant the petition in part and remand on this ground.

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

Great opinion by Judge A. Marvin QUATTLEBAUM! He’s a Trump appointee whom I’ve criticized in the past. But, his analysis is “spot on” in this case!

Perhaps the Federal Courts are finally catching on to the BIA’s disingenuous “scissors approach” to PSG. That’s used to “cut off” all PSG asylum claims no matter how meritorious. 

Here’s how it works. They incorrectly find that almost all “particularized” social groups fail the “social distinction” test. But, when you prove “social distinction,” they wrongly characterize the social group as too “amorphous” or “vague” to be particularized. In that manner, the BIA and many IJs can manipulate the law to reject proper “particular social groups” and keep their White Nationalist anti-asylum “handlers” at the DOJ happy, which also helps them retain their positions. 

It will be interesting to see how that works out for them if, as many of us have recommended, Judge Garland actually puts some Appellate Judges on the BIA who understand asylum law and start applying it fairly, correctly, and in accordance with due process?

In making EOIR appointments, the Obama Administration generally eschewed the “best and brightest” with expertise representing asylum seekers and applying the UN Convention and the Refugee Act of 1980 in accordance with their humanitarian intent, rather as ways to advance a restrictionist agenda of deterring asylum seekers by wrongfully denying their claims. After all, how many asylum seekers are fortunate enough to have a good lawyer like Abdoul Aziz Konare represent them in their asylum cases? Not very many!

No, the average asylum seeker, many in detention and without adequate access to counsel or research materials, gets railroaded out with gobbledegook like “Chevron deference,” too “amorphous,” not “socially visible” and citations to cases even experienced Federal Judges often don’t correctly understand. So, getting asylum tends to depend not so much on the strength of your claim (many of which should be pretty easily grantable unless the IJ is “programmed to deny” — the norm these days), but on your lawyer, your IJ, and whether you are fortunate enough to have access to a thoughtful Article III judge like Judge Quattlebaum in this case. He took the time to figure out the bogus nature of the DOJ’s standard “BS arguments.” 

Unfortunately, many Federal Judges would have just “punted” by accepting the “Chevron deference” argument for a “quick kill” without the need for much thought or analysis. After all, Court of Appeals Judges also like to “keep their dockets moving” and what easier victim to “throw under the bus” than an asylum applicant who is going to be deported to a place where he or she will be too busy fighting to stay alive to reflect on the deteriorating quality and lack of concern for fairness in the U.S. Judicial system. 

The Trump kakistocracy actually went a long way toward convincing the world that the once widely admired U.S. Justice system is now little more than a “third world sham” — controlled by nationalist politicos, programmed to reject, deny, dehumanize, and operated largely for the exclusive benefit of the rich white ruling class.

I hope that “Team Garland” will “End the EOIR Clown Show” 🤡 and restore integrity to our system. But, so far, it bumbles along chewing up and spitting out hope, humanity, and lives, while mocking any normal understanding of “justice” on a daily basis. Not something I’d want on my watch!

🇺🇸Due Process Forever!

PWS

01-25-21

😎👍⚖️🗽👩🏻‍⚖️👨‍⚖️🇺🇸YES! — WOW! IN A HUGE VICTORY FOR DUE PROCESS & FUNDAMENTAL FAIRNESS, PANEL LED BY JUDGE STEPHANIE THACKER WITH 2 TRUMP APPOINTEES UNANIMOUSLY BLOWS AWAY BIA ON NEXUS TO A NUCLEAR FAMILY PSG FROM EL SALVADOR! — Arlington Superstar 🌟 Litigator Aaron Caruso With Big Win For Cause Of Justice! — Hernandez-Cartagena v, Barr! — “Kardashian Rule” & Other BIA/Billy The Bigot Nonsense Smashed!

 

https://www.ca4.uscourts.gov/opinions/191823.P.pdf

HERNANDEZ-CARTAGENA v. BARR, 4th Cir., 10-15-20, published

PANEL: THACKER, RICHARDSON, and QUATTLEBUAM, Circuit Judges

OPINION BY: JUDGE STEPHANIE THACKER

KEY QUOTE:

Contrary to the BIA’s conclusion in this case, the record does not support the conclusion that Petitioner’s own conflict with the gang precipitated any of the events in question. Indeed, substantial evidence in the record compels the conclusion that at least one central reason Petitioner was targeted was her membership in the Hernandez-Cartagena family. The unrebutted evidence in the record demonstrates that the threats and violence against Petitioner, her child, and her siblings were designed to get her parents to pay up. Pursuant to Hernandez-Avalos, it is therefore unreasonable to conclude that the fact that Petitioner is her parents’ child — a member of their family, concern for whom might motivate additional payments to the gang — is not at least one central reason for her persecution.
11

IV.
For the reasons set forth herein, the petition for review is granted, the decision of
the BIA is reversed, and we remand to the BIA for proceedings consistent with this opinion.

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

Why this is important: It delivers a totally deserved “double whammy” to two of the worst and most biased precedents issued during the Trump White Nationalist “kangaroo court era” at the BIA.

First, in Matter of L-E-A, 27 I&N Dec. 40 (BIA 2017), (“L-E-A- 1”) the BIA recognized the “nuclear family” as a “particular social group.” Yet, to produce the necessary asylum denial sought by their “Trump handlers” at DOJ, the BIA erroneously found that the threatened harm had no “nexus” to the PSG.

To reach this improper and illogical result, the BIA disingenuously trashed the “normal” rules of causation. Those say that nexus is established if the harm would not have occurred “but for” membership in the protected group. Of course, there could be multiple “but fors” in a particular case, recognizing the “at least one central reason” statutory language for nexus.

That respondent was targeted for harm by gangs because his family owned a drug store that the gangs wanted to access to distribute illegal drugs. Had the respondent not been a member of his particular family, there is no reason to believe he would have have been targeted for any harm, or indeed have been of any interest to the gangs at all.

In other words, “but for” his membership in that particular family PSG, the threats would not have occurred. Essentially, a “no brainer” asylum grant that could have been quickly granted by a competent adjudicator. Any DHS appeal should have been a strong candidate for summary dismissal.

Instead of doing the obvious, the BIA invented new rules of causation. Contrary to the record, they found that family membership was essentially irrelevant to the threatened persecution. No, according to the BIA, the threats against the respondent were motivated solely the gang’s desire to sell illegal drugs through the family store, not a protected ground.

By searching for “any other motivation” and then basically substituting it to the exclusion of the clear family PSG motivation, the BIA bizarrely and erroneously concluded that the PSG was not “one central reason” for the persecution. This allowed the BIA to deny asylum to a respondent who fit squarely within the “refugee” definition.

Although the decision might have been cloaked in garbled legalese and irrational, result-oriented analysis, the overall message to Immigration Judges and BIA Appellate Judges was clear: faced with facts that demanded an asylum grant to a Central American refugee, the adjudicator should manufacture “any reason other than a protected ground” to deny protection. The BIA will have your back.

Let’s play out the BIA’s intentionally perverted analysis on a larger scale. The leaders of the Nazi movement stood to profit mightily from the eradication of the German Jewish community. Stolen artwork, confiscated wealth and property, and even the proceeds of the gold and silver obtained from collecting and melting down the dental fillings of gassed Jews found their way into Nazi bank accounts, many abroad. Thus, the BIA could view the Holocaust not as religious, nationality, or racial persecution, but rather part of an overall criminal scheme to enrich Nazi leaders by stealing from prosperous or vulnerable individuals. No persecution there!

Happily, in Hernandez-Cartagena, Judge Thacker and her colleagues blew through the type of bogus analysis set forth in L-E-A- 1. Although not specifically citing the BIA’s defective precedent, the court applied “normal rules of causation” rather than the BIA’s “any reason to deny” approach.

The petitioner was a “conduit” In the gang’s scheme to extort money from her parents. The court recognized that “it is therefore unreasonable to conclude that the fact that Petitioner is her parents’ child — a member of their family, concern for whom might motivate additional payments to the gang — is not at least one central reason for her persecution.”

Good bye and good riddance L-E-A- 1. Hello, rational analysis and well-merited protection, although sadly only within Fourth Circuit, for now.

But, that’s not the end of the tale of woe from America’s most blatantly biased, unprofessional, deadly, and totally unconstitutional “21st Century Star Chambers.” Not satisfied with the BIA’s illegal denial of protection in L-E-A- 1, two years later, Attorney General “Billy the Bigot” Barr “certified” that case to himself. That became Matter of L-E-A-, 27 I&N Dec. 581 (A.G. 2019) (“L-E-A- 2”).

Star Chamber Justice
“Justice”
Star Chamber
Style

His purpose? To reverse the only correct part of L-E-A- 1: the BIA’s recognition of the “nuclear family” as a “PSG.” As we all know, the nuclear family is one of the oldest, most well-established, well-defined, and universally recognized social units in human history. Not surprisingly, then, it has been recognized as a “PSG” under the Refugee Act of 1980 in numerous judicial and BIA decisions as well as by a myriad of human rights and international law scholars.

Billy Barr Consigliere Artist: Par Begley Salt Lake Tribune Reproduced under license, Large
Bill Barr Consigliere
Artist: Pat Bagley
Salt Lake Tribune
Reproduced under license

No matter to Billy! In an exercise in disingenuous legal gobbledygook and counter-rationality, he tried to explain why it was wrong to recognize the obvious: that the nuclear family” is a “cognizable PSG” for asylum adjudication purposes.

Instead, Billy substituted what I call the “Kardashian rule.” Only those families who have some sort of widespread recognition in society as a whole should be considered to possess the “social distinction” (the characteristic formerly known as “social visibility”) to qualify as a “cognizable PSG.”

Kardashians
Billy Barr’s Vision Of A “Cognizable Particular
Social Group” By hotrock pictures – Vimeo: Kardashian Kollection at Sears (view archived source), CC BY 3.0, https://commons.wikimedia.org/w/index.php?curid=82871460
Creative Commons License

Again, without specifically citing L-E-A- 2, (perhaps the OIL was too embarrassed to argue it) Judge Thacker and her colleagues “blew away” its bigoted and irrational nonsense:

We have repeatedly held “a nuclear family provides a prototypical example of a particular social group” cognizable in our asylum framework. Cedillos-Cedillos v. Barr, 962 F.3d 817, 824 (4th Cir. 2020) (internal quotation marks omitted).

Indeed, the Fourth Circuit has been a leader in recognizing the nuclear family as a PSG, going all the way back to a case where they reinstated some of my rulings as an Immigration Judge that had been wrongfully reversed by the BIA: Crespin-Valadares v. Holder, 632 F.3d 117, 128 (4th Cir. 2011). But, hey, who remembers stuff like that from nearly a decade ago where I was once again proved right and the BIA was wrong?

Yeah, I’ll have to admit that after eight years of regularly getting “stuffed” by my BIA colleagues at en banc, there were few things in my professional life more satisfying than having a Court of Appeals “stuff” the BIA on a case where I had dissented as a BIA Judge or been reversed as an Immigration Judge!

So Billy the Bigot’s attempt to impose the absurdist “Kardashian rule” (sorry Kim, Kourtney, and Khloe) in L-E-A- 2 bites the dust, at least in the Fourth Circuit. I hope it will serve as a “blueprint” to eradicate the “twin travesties” of L-E-A- 1 & 2 across the nation!

Exhilarating as this case is, it’s just one step in the right direction. The unconstitutional White Nativist bias and abuse being heaped upon refugees and other migrants by a “Star Chamber” beholden to the likes of “Billy the Bigot” Barr and his predecessor Jeff “Gonzo Apocalypto” Sessions won’t end until EOIR is abolished and replaced with a real court system that complies with 5th Amendment Due Process. If the Article III Courts don’t have the guts to get the job done, then its up to future better Congress to make it happen!

Lots of “gold stars” to hand out here!

Aaron Caruso, Esquire
Aaron Caruso, Esquire
Partner, Abod & Caruso
Wheaton, MD
Photo Source: Abod & Caruso Website

🌟First and foremost, Aaron Caruso, Esquire, of Abod & Caruso, Wheaton, MD. He appeared before me in Arlington. He’s the “total pro,” a “judge’s lawyer:” scholarly, unfailingly courteous, prompt, well-prepared, practical, wrote outstanding “to the issue” briefs that didn’t waste my time, took tough cases, and never gave up on his clients. In a “better world,” he’s definitely someone I could see on the Federal Bench at some level. A member of the NDPA, for sure!

Judge Stephanie D. Thacker
Honorable Stephanie D. Thacker
U.S. Circuit Judge
Fourth Circuit
Photo From Ballotpedia

🌟Judge Stephanie Thacker of the Fourth Circuit. I haven’t studied all of her judicial opinions. But, based on this opinion and her outstanding and totally correct dissent in Portillo-Flores v. Barr where she cogently castigated her fellow panel members for “going along to get along” with the BIA’s “at worst nonsensical and cursory at best” asylum denial, she appears one of a painfully small number of Article III Judges who both understand the mockery of justice going on in our Immigration “Courts” and have the guts to take a strong stand against it. https://immigrationcourtside.com/2020/09/04/%E2%80%8D%EF%B8%8F%EF%B8%8F%EF%B8%8Finjustice-watch-4th-cir-judge-stephanie-thacker-cogently-castigates-colleagues-for-misapplying/

Interestingly, this is the same panel as in Portillo-Flores. And, the BIA’s sloppy and incompetent analysis, including ignoring the evidence of record, presents largely the same issues. Only, this time Judge Thacker’s colleagues paid attention to what she was saying!

That says something about both her persuasiveness and her colleagues’ willingness to listen and take a better approach to judicial review. That’s also what’s known in the business as “making progress every day, one case, one life at a time.”

Unfortunately, Trump and the GOP right wing pols have turned Federal judicial selection into a race to control justice until at least 2060. That has forced the Dems to finally wake up and do likewise the next time they get the chance. The upshot: At 55, although still in the “prime years” of her career from a professional standpoint, Judge Thacker has probably “aged out” of the sweepstakes to be the “heart and soul” of the Supremes for the next four decades.

The good news: She should be around to continue saving lives, speaking truth to power, and serving as a great role model for younger, aspiring jurists and public officials of all races and genders for many years to come.

Compare Judge Thacker’s clear, concise, cogent analysis in this case with the wandering legal gobbledygook and pure nonsense put forth by the BIA and Barr in L-E-A- 1 & 2.

🌟Judge Julius N. Richardson and Judge A. Marvin Quattlebaum, Jr., of the Fourth Circuit also deserve stars. I really lambasted these two Trump appointees for their tone-deaf performance in Portillo-Flores. But, here they surprised me by joining fully in Judge Thacker’s analysis. Shows a capacity for teamwork, listening, adjusting views, and taking judicial review seriously, all really good things!

Additionally, it’s really important and significant when Trump appointees “do the right thing” and uphold due process, fundamental fairness, and recognize asylum seekers as “persons” entitled to equal justice under our Constitution. Given the large number of fairly young Trump appointees on the Federal Bench, it’s critical that as many of them as possible join their colleagues in resisting the White Nationalist assault on the rights and human dignity of people of color, particularly migrants and asylum seekers, being orchestrated by Trump, Miller, Barr, Wolf, and the rest of the regime’s gang of bigots.

Don’t know if this will be repeated in the future, but the votes of Judge Richardson and Judge Quattlebaum in this case are an encouraging sign for the American justice system. Will it be a trend or an aberration? Can’t tell, but stay tuned.

🌟Finally, and perhaps most importantly, hats off for Sandra Marleny Hernandez-Cartagena. In the face of a bogus “court” system controlled and operated by White Nationalist racist bigots for the purpose of wiping out asylum laws, demoralizing applicants through dishonest procedures and rules meant to discourage them from seeking protection, and to “send a message” that they aren’t wanted in our country, she persisted for herself, her family, and others similarly situated. Her victory in this case is a victory for American justice and for every one of us who believe in due process, fundamental fairness, and equal justice for all.

Thanks, Sandra, for inspiring us with your courage and unrelenting persistence in the face of evil and institutionalized, illegal, bias!

Due Process Forever!

PWS

10-16-20

🏴‍☠️☠️⚰️🤮👎INJUSTICE WATCH: 4th Cir. Judge Stephanie Thacker Cogently Castigates Colleagues For Misapplying “Standard Of (No) Review” To Approve BIA’s Sloppy, Clearly Erroneous, Deadly Anti-Asylum Farce! – Portillo-Flores v. Barr — – “[A]t worst nonsensical and cursory at best”

Judge Stephanie D. Thacker
Honorable Stephanie D. Thacker
U.S. Circuit Judge
Fourth Circuit
Photo From Ballotpedia

 

Portillo-Flores v. Barr, 4th Cir., 09-02-20, published

Portillo decision

 

PANEL:  THACKER, QUATTLEBAUM, and RUSHING, Circuit Judges.

 

OPINION BY: Judge Quattlebaum

 

DISSENTING OPINION: Judge Stephanie D. Thacker

 

KEY QUOTES FROM JUDGE THACKER’S DISSENT:

The majority opinion begins its analysis with a reminder of the applicable standard of review, emphasizing the importance of deference in this context. But the majority fails to mention a threshold requirement for the application of deference — in order to be accorded deference, agency decisionmakers below must conduct sufficient analysis to which we can defer. See Cordova v. Holder, 759 F.3d 332, 338 (4th Cir. 2014) (“[T]he Supreme Court long ago instructed that ‘the process of review requires that the grounds upon which the administrative agency acted be clearly disclosed and adequately sustained.’” (quoting SEC v. Chenery Corp., 318 U.S. 80, 94 (1943))). Here, neither the Immigration Judge (“IJ”) nor the Board of Appeals (“BIA”) provide even the bare minimum level of explanation that our precedent requires. This failure is an abuse of discretion.

The agency decisions here are precisely the kinds of cursory opinions we have repeatedly rejected for their failure to engage with an applicant’s arguments and evidence. I therefore respectfully dissent.

. . . .

In conclusion, I borrow from the majority opinion, which likens the standard of review to an offensive lineman in football. In light of the limited analyses below, which were at worst nonsensical and cursory at best, the standard of review “offensive lineman” in this case cannot protect the decision below. Instead, the weak analysis of the agencies left their blind side wide open.

I dissent.

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

[A]t worst nonsensical and cursory at best.” Those prophetic words from Judge Thacker’s dissent should outrage every American! Don’t vulnerable individuals, effectively on trial for their lives, deserve better from the U.S. Justice system? Is the “half-baked” standard applied by the panel majority really the way we would want ourselves or our loved ones judged in any matter of importance, not to mention what is in many ways a “capital case?” What’s going on in our Article III Judiciary?

Read the full opinion at the link. This is a prime, very disturbing example of the “any reason to deny” standard used by the Trump regime to subvert justice for asylum applicants of color. Here, as effectively pointed out by Judge Thacker it was (laboriously and wordily) “rubber stamped” by two complicit Article III Judges.

To call this “second class justice” would be far too generous. It’s basically no justice at all and a damning illustration of how intellectual absurdity and race-driven results have become institutionalized and acceptable, not just in the Immigration Courts, but in various places throughout our judicial system that is failing to deliver on the Constitutional requirement of “equal justice for all.”

Any activists who think that the problems of racial tension in America are going to be resolved without addressing the systemic judicial failure to stand up against the illegal, racially-biased mistreatment of asylum seekers and other migrants by the likes of Trump, Miller, Sessions, Barr, and Wolf, as enabled by the Supremes and other Article III Judges who have “swallowed their whistles,” is mistaken.

As cogently pointed out by Judge Thacker, this was a “no brainer remand” under any application of the proper standards. Indeed, the panel majority spent more time and effort, and killed more trees, looking for ways to “paper over” the BIA’s indefensible and unprofessional performance than it would have taken them to correct it! This panel majority appeared much more interested in “rehabilitating the BIA” and “codifying injustice” (probably as an aid to rubber stamping more assembly line injustice in the future) than it was in achieving justice for the young man whose life was at stake.

Indeed, Judge Quattlebaum and Judge Rushing are so arrogantly “tone deaf” and impervious to human suffering that they employ a “snarky sports analogy” in essentially imposing a potential death sentence on a young Salvadoran refugee without any serious pretense of due process or effective and intellectually honest judicial review. Is this how Quattlebaum and Rushing would like to be “judged” if they or their loved ones (or someone they considered “human”) were on trial for their lives? No way! So why is it “due process” for this young man? 

Obviously, these are two judges who are confident in a privileged life “above the fray” that puts them beyond moral and legal accountability for the unjust human misery and suffering that they cause. It’s all a “sports joke” to them. But, not so funny to those whose lives are at stake in what once was supposed to be a serious legal process but now has devolved into a deadly and totally dysfunctional “Clown Show.”

It’s also a national disgrace and a serious indictment of our entire justice system that this type of clearly “dangerous and defective judging” goes on in our life-tenured judiciary. America deserves better from our Article III Judiciary!

Due Process Forever!

 

PWS

09-04-20

SIJS VICTORY: 4TH CIR. EN BANC MAJORITY GIVES “NO DEFERENCE” TO USCIS’S MISINTERPRETATION OF LAW!  — Perez Perez v. Cooch

http://www.ca4.uscourts.gov/opinions/181330.P.pdf

Perez Perez v. Cooch, 4th Cir., En Banc, 02-10-20, published

BEFORE:  GREGORY, Chief Judge, and WILKINSON, NIEMEYER, MOTZ, KING, AGEE, KEENAN, WYNN, DIAZ, FLOYD, THACKER, HARRIS, RICHARDSON, QUATTLEBAUM, and RUSHING, Circuit Judges.

OPINION BY:  Judge King, joined by Chief Judge Gregory and Judges Motz, Keenan, Wynn, Diaz, Floyd, Thacker, and Harris 

DISSENTING OPINION: Judge Quattlebaum, in which Judges Wilkinson, Niemeyer, Agee, Richardson, and Rushing joined.

KEY QUOTES:

Felipe sought judicial review of the Agency’s rejection of his SIJ application, initiating these proceedings in October 2016 in the Western District of North Carolina against the Director of USCIS.1 In March 2018, the federal district court denied Felipe’s motion to set aside the Agency’s final action and granted the summary judgment motion of USCIS. Felipe then timely noted this appeal from the judgment of the district court. Unlike that court, we conclude that the Agency’s interpretation of the SIJ provision — that clause (i) requires a permanent custody order — is entitled to no deference, defies the plain statutory language, and impermissibly intrudes into issues of state domestic relations law. Consequently, we reverse the judgment and remand with instructions to grant Felipe’s motion to set aside the Agency’s final action denying him SIJ status.

. . . .

Perhaps the most egregious aspect of the dissent is that it accuses us of “plac[ing] this Court’s stamp of approval on a brazen scheme to game our federal immigration system.” See post 32. That is, despite the lack of any determination from the North

Carolina district court or even from USCIS that Felipe has acted dishonestly or corruptly, 27

the dissent boldly declares that Felipe engaged in an “obvious manipulation of the state juvenile court to circumvent federal immigration laws.” See id. The dissent specifically finds that Felipe “used, at best, dubious claims of an emergency to obtain an ex parte order at a time close enough to his eighteenth birthday that the order would never receive a proper review.” See id. And, as if it demonstrates bad intent, the dissent points to the request in Mateo Perez Perez’s complaint for custody of his brother Felipe “that the North Carolina court make the precise findings that would permit [Felipe] to apply for SIJ status and then apply for a permanent visa to remain in the United States.” See id. at 34 (commenting that the “benefits [of obtaining SIJ status] were far from lost on [Felipe]”).

The dissent’s endeavor to demonize Felipe is wholly inappropriate, unfair, and dispiriting. First of all, the principle “that appellate courts do not make factual findings” is an “axiomatic” one. See Robinson v. Wix Filtration Corp., 599 F.3d 403, 419 (4th Cir. 2010) (citing Columbus-Am. Discovery Grp. v. Atl. Mut. Ins. Co., 56 F.3d 556, 575-76 (4th Cir. 1995) (“It is a basic tenet of our legal system that, although appellate courts often review facts found by a judge or jury . . . , they do not make such findings in the first instance.”)). The dissent’s fact finding is particularly objectionable here because it tramples upon the exclusive authority of the North Carolina district court to adjudicate Felipe’s custody. See Adoptive Couple v. Baby Girl, 570 U.S. 637, 656 (2013) (Thomas, J., concurring) (emphasizing that “domestic relations is an area that has long been regarded as a virtually exclusive province of the States” (internal quotation marks omitted)); cf. Ojo v. Lynch, 813 F.3d 533, 539 (4th Cir. 2016) (explaining that “it is well understood that, in

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the United States, our various state courts exercise full authority over the judicial act of adoption”).

Furthermore, the dissent’s theory that Felipe acted dishonestly and corruptly is in no way compelled by the record. Indeed, many of the adverse inferences that the dissent draws against Felipe are patently unreasonable. For example, without acknowledging that Mateo filed his complaint for custody of Felipe nearly six months before Felipe turned eighteen, the dissent finds that Felipe plotted to obtain an unreviewable emergency custody order from the North Carolina district court within days of his eighteenth birthday. And although Felipe was required by federal regulation to submit to USCIS a state juvenile court order containing findings necessary to his SIJ application, see 8 C.F.R. § 204.11(d)(2), the dissent negatively cites the request for those findings made in Mateo’s complaint for custody of Felipe. The dissent even maligns Felipe for appreciating the benefits of SIJ status, as if a mere desire to live in the United States is evidence of immigration fraud.

There is no justification for the dissent’s dismal portrait of Felipe. The North Carolina district court certainly did not indicate that it thought itself manipulated in the custody proceedings, and USCIS did not attribute its rejection of Felipe’s SIJ application to any chicanery. Rather, the state court gave every indication it believed that Felipe was the victim of abuse, neglect, and abandonment by his biological parents in Guatemala and that placing him in the custody of Mateo was in Felipe’s best interests. Thereafter, USCIS denied Felipe SIJ status solely because he lacked the type of custody order — a permanent one — that the Agency has interpreted clause (i) of the SIJ provision to require. All we 29 say today is that, because USCIS’s clause (i) interpretation is not in accordance with law, the Agency must take another look at Felipe’s SIJ application.8

KEY QUOTE FROM THE DISSENT:

Finally, in addition to suffering from the legal deficiencies described above, I fear

our decision will have serious and far reaching ramifications. First, in adopting Perez’s arguments, we sanction a scheme to game United States immigration laws. As noted above, Perez’s brother alleged to a court of law and either Perez or his brother swore in an affidavit that temporary emergency custody of Perez was needed to protect Perez from imminent, serious physical harm from Perez’s parents. But at the time the motion containing this allegation and the supporting affidavit were filed, his parents were still in Guatemala. In

other words, Perez had been in the United States, over 2,700 miles from his parents, for 47

over a year. When asked by the panel at oral argument the basis of the purported emergency, counsel for Perez was unable to provide any explanation. He likewise provided none before the entire court sitting en banc. No one, at any time, has articulated any sort of emergency.3

If there was an actual emergency, one would expect Perez’s brother to have filed the motion for an emergency order at the time the complaint was filed, or even sooner. But he did not do so. Instead, he waited until June 2015, just weeks before Perez turned eighteen, to file the motion.4 By doing so, Perez was able to obtain the ex parte, emergency order without any meaningful examination of the allegations since the parents had no way to know the motion was even filed. And since Perez was about to turn eighteen on July 6, Perez and his brother knew the July 22, 2015 hearing the state court ordered would never happen. Perez’s scheme makes a mockery of the immigration laws passed by Congress. What’s more, by sanctioning this scheme, we are sending the clear message: Gaming the federal laws is fine with us. Keep doing it.

In insisting the record does not support my characterization of Perez’s conduct, the majority invokes John Adams’ famous reminder that “facts are stubborn things.” Indeed

3 The language cited by the majority at pages 6-7 of its opinion refer to circumstances that allegedly existed when Perez lived in Guatemala. Even if true, they offer no basis for an emergency, ex parte order hearing a year and a half after Perez left Guatemala and came to the United States.

4 Perez flip-flopped on this issue at the en banc oral argument. He first suggested that he promptly filed the motion and the delay was due to the slow pace of the North Carolina court. When pressed, however, he conceded that he had not filed the motion until six months later, in June.

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they are. The fact here is that the purported emergency on which Perez’s motion was based involves events that occurred years ago and thousands of miles away. J.A. 116-117. The fact here is that Perez’s brother waited until just before Perez turned eighteen to seek emergency relief. J.A. 88, 127. The fact here is that Perez’s brother sought emergency custody of Perez without providing any notice to their parents in Guatemala. J.A. 88-89, 129-130. The fact here is that the order on which Perez’s SIJ petition was based only preserved the status quo until a hearing with due process rights could be held. J.A. 130. All these facts are plainly in the record, and my good colleagues in the majority do not suggest otherwise. They simply come to a different, and in my view implausible, conclusion about them.5

5 In considering whether Perez’s conduct is part of a scheme to game our immigration laws, I note the remarkable similarities between the facts here and those of Reyes v. Cissna, 737 F. App’x 140 (4th Cir. 2018). There, Reyes lived with her grandparents from the time she was eleven until she was sixteen. Id. at 142. At age sixteen, she entered the United States unlawfully, was apprehended and, pending a removal hearing, was moved to North Carolina where her father lived. Id. Almost two years later, and four days before Reyes’ eighteenth birthday, Reyes’ father, represented by the same lawyers as Perez, filed an action in North Carolina state court to terminate the parental rights of Reyes’ mother. Id. Reyes’ father also filed a motion seeking emergency custody of Reyes because Reyes had been abandoned by her mother. Reyes’ father claimed he should be awarded custody of Reyes on an emergency basis even though the alleged abandonment took place seven years earlier when Reyes was eleven and even though Reyes lived with her grandparents from that time until she came to the United States illegally. The North Carolina state court granted the emergency relief and set a hearing just five days later to determine custody. Id. at 143. Like our case, however, Reyes turned eighteen just before the hearing, depriving the North Carolina state court of jurisdiction to make a custody determination. Despite that, Reyes used the emergency order, obtained without any due process provided to her mother, to petition for federal SIJ benefits. Id. at 143. Sound familiar?

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Second, our decision effectively transfers much of the responsibility of determining eligibility for SIJ benefits from the Agency—which is where Congress placed it—to state juvenile courts. In doing this, we pave the way for immigrants to seek orders from state juvenile courts in order to gain an immigration advantage. I agree that, as a general rule, neither federal agencies nor federal courts should wade into the waters of state domestic relations law. But the Agency did not make any state domestic relations law determinations. And giving appropriate respect to state courts in the area of domestic relations does not mean that the Agency must abdicate its role, rubber stamp a barebones set of “findings” or ignore the circumstances of an SIJ submission. Certainly nothing in the INA suggests that result.

Third, beyond the damage to our immigration laws, this scheme and our approval of it marginalizes the importance of parents having custody over their children. Our decision approves a scheme that terminated the custodial rights of Perez’s parents without a scintilla of due process. Here, although North Carolina law requires notice and a hearing for a custody determination, Perez made an end run around that requirement with his dubious claim of emergency. And although an emergency order normally only holds the status quo in place until a hearing of which all parties receive notice and are given an opportunity to be heard, Perez’s strategic timing of the emergency motion in relation to his eighteenth birthday assured that hearing would not take place. Then, the INA and its accompanying regulations, which assume that the state court order would have been carried out with due process protections, do not require the parents to be notified of the SIJ petition.

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Perez’s scheme, like a thief in the night, terminates his parents’ custodial rights without the parents even knowing.

Last, these results would be bad enough if they affected American citizens. But here, courts in the United States are being used to eviscerate the rights of citizens of Guatemala whose parental rights should be governed by the laws of that country. Imagine the outrage we would rightly feel if another country’s courts terminated the custodial rights of American citizen parents over an American child. International comity means nothing if these schemes are endorsed.

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I had significant experience with SIJS during my 13 years on the bench in Arlington. I also worked some on enactment of the original SIJS law that was part of IMMACT 90 during my days in private practice.

Leaving aside the facts of this particular case, whatever they might be, I found SIJS to be a “life saver” for many deserving young people who might well have been severely harmed or abused, perhaps killed or forced to “join gangs or die,” if returned to their home countries. 

Some of them were individuals who should have been granted asylum, but were improperly excluded from that relief by intentional misinterpretations of asylum law directed against refugees from Central America which predated this Administration; such injustices obviously have been aggravated by the the Trump/Miller shameless White Nationalist agenda now being directed at asylum seekers of color, all too often with the wooden approval of life-tenured appellate judges who should know better.

Human lives are at stake here!  

PWS

02-11-20