⚖️🇺🇸🗽👍🏼👨🏻‍⚖️JUSTICE GORSUCH LEADS 6-3 SUPREMES’ MAJORITY IN HANDING MIGRANTS HUGE VICTORY OVER DHS & EOIR INTRANSIGENCE/INCOMPETENCE IN “STOP TIME RULE” CASE — Niz-Chavez v. Garland — “Round Table” Amicus Plays A Role In Success! — “A single notice—rather than 2 or 20 documents!”

Associate Justice Neil Gorsuch — Associate Justice Neil M. Gorsuch; photograph by Franz Jantzen, 2017.

Niz-Chavez v. Garland, U.S. Supreme Court, 04-20-21

https://www.supremecourt.gov/opinions/20pdf/19-863_6jgm.pdf

SYLLABUS BY COURT STAFF:

Syllabus

NIZ-CHAVEZ v. GARLAND, ATTORNEY GENERAL CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

No. 19–863. Argued November 9, 2020—Decided April 29, 2021

Nonpermanent resident aliens ordered removed from the United States under federal immigration law may be eligible for discretionary relief if, among other things, they can establish their continuous presence in the country for at least 10 years. 8 U. S. C. §1229b(b)(1). But the so- called stop-time rule included in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) provides that the pe- riod of continuous presence “shall be deemed to end . . . when the alien is served a notice to appear” in a removal proceeding under §1229a. §1229b(d)(1). The term “notice to appear” is defined as “written notice . . . specifying” certain information, such as the charges against the al- ien and the time and place at which the removal proceedings will be held. §1229(a)(1). A notice that omits any of this statutorily required information does not trigger the stop-time rule. See Pereira v. Ses- sions, 585 U. S. ___. Here, the government ordered the removal of pe- titioner Agusto Niz-Chavez and sent him a document containing the charges against him. Two months later, it sent a second document, providing Mr. Niz-Chavez with the time and place of his hearing. The government contends that because the two documents collectively specified all statutorily required information for “a notice to appear,” Mr. Niz-Chavez’s continuous presence in the country stopped when he was served with the second document.

Held: A notice to appear sufficient to trigger the IIRIRA’s stop-time rule is a single document containing all the information about an individ- ual’s removal hearing specified in §1229(a)(1). Pp. 4–12.

(a) Section 1229b(d)(1) states that the stop-time rule is triggered by serving “a notice,” and §1229(a)(1) explains that “written notice” is “re- ferred to as a ‘notice to appear.’ ” Congress’s decision to use the indef- inite article “a” suggests it envisioned “a” single notice provided at a

2

NIZ-CHAVEZ v. GARLAND Syllabus

discrete time rather than a series of notices that collectively provide the required information. While the indefinite article “a” can some- times be read to permit multiple installments (such as “a manuscript” delivered over months), that is not true for words like “notice” that can refer to either a countable object (“a notice”) or a noncountable abstrac- tion (“sufficient notice”). The inclusion of an indefinite article suggests Congress used “notice” in its countable sense. More broadly, Congress has used indefinite articles to describe other case-initiating plead- ings—such as an indictment, an information, or a civil complaint, see, e.g., Fed. Rules Crim. Proc. 7(a), (c)(1), (e); Fed. Rule Civ. Proc. 3—and none suggest those documents might be delivered by installment. Nor does the Dictionary Act aid the government, as that provision merely tells readers of the U. S. Code to assume “words importing the singular include and apply to several persons, parties, or things.” 1 U. S. C. §1. That provision means only that terms describing a single thing (“a no- tice”) can apply to more than one of that thing (“ten notices”). While it certainly allows the government to send multiple notices to appear to multiple people, it does not mean a notice to appear can consist of mul- tiple documents. Pp. 4–9.

(b) The IIRIRA’s structure and history support requiring the govern- ment to issue a single notice containing all the required information. Two related provisions, §§1229(e)(1) and 1229a(b)(7), both use a defi- nite article with a singular noun (“the notice”) when referring to the government’s charging document—a combination that again suggests a discrete document. Another provision, §1229(a)(2)(A), requires “a written notice” when the government wishes to change an alien’s hear- ing date. The government does not argue that this provision contem- plates providing “the new time or place of the proceedings” and the “consequences . . . of failing . . . to attend such proceedings” in separate documents. Yet the government fails to explain why “a notice to ap- pear” should operate differently. Finally, the predecessor to today’s “notice to appear” required the government to specify the place and time for the alien’s hearing “in the order to show cause or otherwise.” §1252(a)(2)(A). The phrase “or otherwise” has since disappeared, fur- ther suggesting that the required details must be included upfront to invoke the stop-time rule. Indeed, that is how the government itself initially read the statute. The year after Congress adopted IIRIRA, in the preamble to a proposed rule implementing these provisions, the government acknowledged that “the language of the amended Act in- dicat[es] that the time and place of the hearing must be on the Notice to Appear.” 62 Fed. Reg. 449 (1997). Pp. 9–13.

(c) The government claims that not knowing hearing officers’ avail- ability when it initiates removal proceedings makes it difficult to pro-duce compliant notices. It also claims that it makes little sense to re- quire time and place information in a notice to appear when that in- formation may be later changed. Besides, the government stresses, its own administrative regulations have always authorized its current practice. But on the government’s account, it would be free to send a person who is not from this country—someone who may be unfamiliar with English and the habits of American bureaucracies—a series of letters over the course of weeks, months, maybe years, each containing a new morsel of vital information. Congress could reasonably have wished to foreclose that possibility. And ultimately, pleas of adminis- trative inconvenience never “justify departing from the statute’s clear text.” Pereira, 585 U. S., at ___. The modest threshold Congress pro- vided to invoke the stop-time rule is clear from the text and must be complied with here. Pp. 13–16.

789 Fed. Appx. 523, reversed.

GORSUCH, J., delivered the opinion of the Court, in which THOMAS, BREYER, SOTOMAYOR, KAGAN, and BARRETT, JJ., joined. KAVANAUGH, J., filed a dissenting opinion, in which ROBERTS, C. J., and ALITO, J., joined.

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

This is the type of case where I had hoped that Justice Gorsuch would “stick to his interpretative guns” by stopping the Government from basically redesigning clear statutory requirements “willy nilly” to suit their own purposes and disadvantage respondents. And, he came through! Big time! I’ve been critical of Justice Gorsuch in the past and am likely to be so again in the future. But, in this case, he did the right thing, and I, for one, am grateful!

Most encouraging, Justice Gorsuch “got” the way that the DHS and EOIR, with the deck already unfairly stacked in their favor, manipulate clear legal requirements for their own nefarious purposes and to the disadvantage of those struggling for justice in an inherently unfair system. There is absolutely no doubt that receiving “piecemeal notice” — incomplete and often sent to incorrect addresses or “personally served” without the proper reading and explanations — works to further disadvantage respondents.

Indeed, illegal, ineffective notices — some setting hearings on “phantom dates” and “imaginary times” — lead directly to an over abundance of “in absentia” orders and consequent illegal removals. Some unrepresented individuals understand how to reopen their hearings for lack of notice — but many are clueless; the Government system strives to keep them that way to “jack up the numbers,” meet “quotas,” and improve stats. Worse yet, Congress sometimes uses the “bogus stats” generated by DOJ and DHS to write legislation, conduct oversight, and establish policy. This is an astoundingly broken, dysfunctional, and intentionally unfair system — a disgrace to our entire justice system and our national conscience each day it is allowed to continue to operate in its abusive ways!

The majority in this case was both very interesting, and at least mildly encouraging, for those of us who believe in due process and fundamental fairness for all persons, including migrants, under law. In addition to Trump appointees Justice Gorsuch and Justice Barrett, another GOP conservative appointee, Justice Thomas, joined Justices Breyer, Kagan, and Sotomayor in the majority!

And, although this case has (incorrectly) seemed “hyper technical” to some Supremes’ watchers unfamiliar with immigration, it will have huge impact — forcing reopening and “redos” in tens of thousands, perhaps hundreds of thousands, of cases in the already backlogged (1.3 million cases) Immigration Court. That will be the direct result of poor jurisprudence by the BIA, lousy court administration by EOIR, and horrible policy decisions by DHS.

Just another prime example of how “haste makes waste” enforcement gimmicks continue to cause unnecessary chaos in the system. Why not just appoint progressive experts as Immigration Judges and BIA Appellate Judges. Qualified jurists who will understand immigration law, due process, and “get in right” in the first instance? Certainly seems like a reasonable approach. What is Judge Garland waiting for?

This, in turn should add to the already loud cries (from virtually everywhere outside Judge Garland’s universe and the restrictionist right) for sensible, readily available backlog reductions and accelerated movement toward better judges and independence in the Immigration Courts, not to mention better management in the DHS enforcement programs.

Here’s my favorite quote from Justice Gorsuch’s majority opinion:

In the end, though, all this speculation is beside the point. The dissent tries to predict how the government will react to a ruling that requires it to follow the law and then pro- ceeds to assess the resulting “costs” and “benefits.” Post, at 17, 20–21. But that kind of raw consequentialist calcula- tion plays no role in our decision. Instead, when it comes to the policy arguments championed by the parties and the dissent alike, our points are simple: As usual, there are (at least) two sides to the policy questions before us; a rational Congress could reach the policy judgment the statutory text suggests it did; and no amount of policy-talk can overcome a plain statutory command. Our only job today is to give the law’s terms their ordinary meaning and, in that small way, ensure the federal government does not exceed its statutory license. Interpreting the phrase “a notice to ap-pear” to require a single notice—rather than 2 or 20 docu- ments—does just that.

*

At one level, today’s dispute may seem semantic, focused on a single word, a small one at that. But words are how the law constrains power. In this case, the law’s terms en- sure that, when the federal government seeks a procedural advantage against an individual, it will at least supply him with a single and reasonably comprehensive statement of the nature of the proceedings against him. If men must turn square corners when they deal with the government, it cannot be too much to expect the government to turn square corners when it deals with them.

The judgment of the Court of Appeals for the Sixth Cir- cuit is

Reversed.

Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

And, here’s some “immediate commentary” by Round Table spokesperson “Sir Jeffrey” Chase:

Victory! This was the case in which our Round Table amicus brief was specifically referenced in oral argument.

Congrats to all involves, and Due Process Forever!

PWS

04-29-21

⚖️🗽🧑🏽‍⚖️COURTS OF APPEALS CONTINUE TO THROW ROTTEN TOMATOES 🍅 @ BIA’S ANTI-ASYLUM BIAS — Basic Analytical, Legal Errors Continue From Weaponized, Non-Expert “Star Chamber” ☠️ Posing As ”Tribunal!” — Judge Garland Must Fix This Inexcusable, Unnecessary, Systemic Failure Now! — Justice For Persons Of Color & Migrants Can’t “Wait For Godot!”

Two most recent recent rebukes, courtesy of Dan Kowalski at Lexis-Nexis Immigration Community:

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/ca6-on-exceptional-circumstances-e-a-c-a-v-rosen

Immigration Law

Daniel M. Kowalski

12 Jan 2021

motion to reopen

exceptional circumstances

AAO asylum bia ca9 cimt COVID-19 DHS DOL eoir final rule H-1B H-2A H-2B I-9 ICE mehta Ninth Circuit ocaho State Department Supreme Court tps Trump unpublished USCIS visa bulletin

More

CA6 on Exceptional Circumstances:

E.A.C.A. v. Rosen

“[W]e conclude that the BIA abused its discretion by denying E.A.’s motion to reopen. E.A.’s mother’s recent childbirth is a serious medical event, which coupled with E.A.’s minor age, her difficulty obtaining transportation, and her difficulty navigating the immigration system without assistance, constitute “exceptional circumstances” necessitating rescission of the in absentia removal order. … The BIA’s decision was also contrary to law, and therefore an abuse of discretion. … First, the BIA improperly considered E.A.’s age separately, rather than considering age alongside other factors, when determining that she had not shown that exceptional circumstances justified her failure to appear. Second, the BIA erred when it dismissed without adequate explanation E.A.’s evidence that she is eligible for SIJS. Finally, the BIA improperly stated that E.A. was required to present prima facie evidence that she was eligible for immigration relief as part of her motion to reopen. … For the foregoing reasons, we GRANT the petition for review, VACATE the removal order, and REMAND for further proceedings consistent with this opinion.”

[Hats way off to Rachel Naggar! Here is a link to the audio of the oral argument.]

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca1-on-asylum-u-s-army-contractor-al-amiri-v-rosen

CA1 on Asylum, U.S. Army Contractor: Al Amiri v. Rosen

Al Amiri v. Rosen

“Salim Al Amiri, an Iraqi citizen, seeks relief from removal on the grounds of asylum, withholding of removal, and protection under the United Nations Convention Against Torture (“CAT”). He premises his requests for such relief on the harm that he fears that he would be subjected to in Iraq at the hands of members of Iraq’s military or civilian insurgents operating in that country. Al Amiri contends that he has reason to fear he would be subjected to that harm on account of his work as a paid contractor for the United States Army during the war in Iraq, as in that role he educated U.S. soldiers about Iraqi customs and practices as they prepared for their deployment. We vacate and remand the ruling of the Board of Immigration Appeals (“BIA”) denying his claims for asylum and withholding of removal, but we deny his petition insofar as it challenges the BIA’s ruling rejecting his CAT claim.”

[Hats off to J. Christopher Llinas!]

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

Congrats to all involved!
Think how much better this system would function with expert judges who treated asylum applicants fairly from the “git go,” granted protection wherever possible in accordance with the the Refugee Act of 1980 and the (more “woke”) Supremes’ precedent in Cardoza-Fonseca, provided clear, positive guidance on how valid claims could be documented and granted, and promoted and consistently applied best practices to achieve efficiency with maximum due process.
At first glance, although the issue is reopening rather than a continuance, E.A.C.A. undercuts McHenry’s nativist, insanely wasteful, and totally dishonest attempt to “raise the bar” for routine continuances for asylum applicants who need time to properly document and prepare their cases.
The “Deny – Deny Program” — deny due process, deny relief — that infects EOIR’s “Star Chambers” (impersonating “courts”) is a huge backlog builder that kills people and screws up Court of Appeals dockets in the process.
Reopening cases that should be reopened, getting to the merits, and getting the many properly grantable asylum cases represented, documented, and prioritized would be a huge step in reducing EOIR’s largely self-created and unnecessary “bogus backlog.”
Ultimately, many of the clearly grantable asylum cases being mishandled and wrongly denied at EOIR, at great waste of time and resources, not to mention unnecessary human trauma, could, with real expert judges at EOIR setting and consistently enforcing the precedents, be granted more efficiently and expeditiously at the Asylum Office and ultimately shifted to a more robust and properly run Refugee Program.
In the longer run, once EOIR is redesigned and rebuilt as a proper court with real, independent, expert judges, it might be appropriate to place the Asylum Offices under judicial supervision, given the grotesque abuses and corrupt, perhaps criminal, mismanagement of the Asylum Offices by USCIS toadies carrying out the regime’s racist, White Nationalist, unconstitutional agenda of hate and waste.
NOTE TO JUDGE GARLAND👨🏻‍⚖️: Please fix the EOIR mess, Your Honor, before it brings you and the entire US justice system crashing down with it! This is a national emergency, and a damaging national disgrace, NOT a “back burner” issue!

Here’s some additional E.A.C.A. analysis by my good friend and NDPA “warrior queen” 👸🏽Michelle Mendez @ CLINIC!

Subject: CLINIC MTR In Absentia Win at the CA6 on behalf of SIJS-Seeking UC (E. A. C. A. v. Jeffrey Rosen)

Greetings,

Sharing this win, E. A. C. A. v. Jeffrey Rosen, out of the CA6 by my amazing colleague Rachel Naggar who manages our BIA Pro Bono Project. This was an appeal of an IJ (Memphis) denial of an in absentia motion to reopen for a 13-year old unaccompanied child.

Interestingly, after oral argument, OIL filed a motion to remand the case (which Rachel opposed) and the CA6 denied that motion. Seems the CA6 really wanted to issue a decision on the merits and we are grateful for the decision. Here are some highlights from the decision:

SIJS

·       “Notably, the IJ’s decision does not mention E.A.’s claims that she was eligible for SIJS.”

·       FN 1: “As of the December 2020 Visa Bulletin, visas are available for special immigrants (category EB4) from El Salvador to adjust their status if their priority date is prior to February 2018. If DHS removes E.A. prior to approving her visa, she will be unable to apply for adjustment of status. See 8 U.S.C. § 1101(a)(27)(J).”

Totality of the Circumstances

·       “Based on the totality of the circumstances, including E.A. mother’s recent childbirth, E.A.’s young age, E.A.’s mother’s failed attempts to obtain counsel to help change the address of E.A.’s hearing, and E.A.’s inability to travel from New York to Memphis for the hearing, we hold that E.A. established exceptional circumstances.”

·       “Under the totality of the circumstances, E.A.’s young age is an important factor in determining whether exceptional circumstances exist.”

Exceptional Circumstances

·       “E.A.’s mother’s recent childbirth is a serious medical condition that supports reopening. The statute defining ‘exceptional circumstances’ that justify reopening an immigration proceeding lists the ‘serious illness of the alien, or serious illness or death of the spouse, child, or parent of the alien’ as an example. 8 U.S.C. § 1229a(e)(1). Childbirth is a serious medical event that necessitates a recovery period.”

·       “Instead of recognizing that childbirth is a serious medical condition, the BIA minimized the seriousness of childbirth and its impact on E.A.’s mother’s ability to bring E.A. to Memphis. […] Recovery from childbirth is exactly the type of circumstance that § 1229a(e)(1) was intended to cover.”

Prima Facie Eligibility

·       “Finally, the BIA erred by stating that E.A. was required to prove prima facie eligibility for immigration relief. The BIA’s decision improperly states that E.A. is required to show at this stage prima facie eligibility for relief. The statute governing motions to reopen removal orders entered in absentia provides that the petitioner must ‘demonstrate[] that the failure to appear was because of exceptional circumstances.’ 8 U.S.C. § 1229a(b)(5)(C). In general, we have stated that ‘[a] prima facie showing of eligibility for relief is required in motions to reopen.’ Alizoti, 477 F.3d at 451–52. In the case of a motion to rescind a removal order entered in absentia, however, the BIA has held that ‘an alien is not required to show prejudice in order to rescind an order of deportation” or removal. In re Grijalva-Barrera, 21 I. & N. Dec. 472, 473 n.2 (BIA 1996); see also In re Rivera-Claros, 21 I. & N. Dec. 599, 603 n.1 (BIA 1996). This is consistent with the statute governing motions to rescind removal orders entered in absentia, 8 U.S.C. § 1229a(b)(5)(C), which does not list a showing of prima facie eligibility for relief from removal as a requirement to rescind in absentia removal orders. Rivera-Claros, 21 I. & N. Dec. at 603 n.1; see also Galvez-Vergara v. Gonzales, 484 F.3d 798, 803 n.6 (5th Cir. 2007) (declining ‘to affirm the IJ’s decision on the grounds that [the petitioner] has not shown that he was prejudiced by his counsel’s performance’ because ‘In re Grijalva-Barrera, 21 I. & N. Dec. at 473 n.2, provides that an alien need not demonstrate prejudice for his counsel’s erroneous advice to constitute an ‘exceptional circumstance’ justifying rescission of an in absentia removal order’); Lo v. Ashcroft, 341 F.3d 934, 939 n.6 (9th Cir. 2003) (‘follow[ing] the BIA’s usual practice of not requiring a showing of prejudice’ to rescind an in absentia order of removal). We now join our sister circuits and hold that E.A. is not required to make a prima facie showing of eligibility for relief in order to obtain rescission under 8 U.S.C. § 1229a(b)(5) of the in absentia order of removal.”

Thanks to our entire Defending Vulnerable Populations team for supporting Rachel on the briefing, oral argument, and negotiations with OIL.

Gratefully,

Michelle N. Mendez | she/her/ella/elle

Director, Defending Vulnerable Populations Program

Catholic Legal Immigration Network, Inc. (CLINIC)

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

In addition to the “normal” overall White Nationalist, racist agenda that EOIR “management” has carried out under the defeated regime, there was a good deal of misogyny 🤮 involved in the BIA’s gross mishandling of the “pregnancy issue,” as described by the Sixth Circuit. This misogynistic trend can be traced back directly to the unconstitutional and unethical actions of mysogynist White Nationalist AG Jeff Sessions 🤮 🦹🏿‍♂️🤡in the “Matter of A-B- Abomination.” ☠️⚰️🏴‍☠️👎🏻

Biased, anti-migrant decision-making in support of bogus enforcement gimmicks and White Nationalist anti-democracy agendas builds backlogs and kills, maims, and tortures “real” people! Migrants are people and persons, not “threats” and “bogus statistics.”

The “dehumanization” and “de-personification” of migrants, with the connivance of the tone-deaf and spineless GOP Supremes’ majority, is a serious, continuing threat to American democracy! It must stop! Justices who won’t treat migrants physically present in the U.S. or at our borders as “persons” under our Constitution — which they clearly are — do not belong on the Supremes! ⚖️🗽🇺🇸

I can also draw the lines connecting George Floyd, institutionalized racial injustice, voter suppression, riots at the Capitol, and the “Dred Scottification” of asylum seekers and other migrants by EOIR!

HINT TO JUDGE GARLAND: Michelle Mendez would be an outstanding choice to lead the “clean up and rebuild” program at EOIR and the BIA once the “Clown Show” 🤡🦹🏿‍♂️ is removed!🪠🧹 Put experts with practical experience like Rachel Nagger and Christopher Linas onto the bench, on the BIA, the Immigration Courts, and the Article III Judiciary to get the American Justice system functioning again!

The “judicial selection system” for the Immigration Courts and the Article III Judiciary has failed American democracy — big time — over the past four years. Fixing it must be part of your legacy!

The folks who preserved due process and our Constitution in the face of tyranny are mostly “on the outside looking in.” You need to get them “inside Government” — on the bench and in other key policy positions — and empower them to start cleaning up the ungodly mess left by four years of regime kakistocracy🤮☠️🤡⚰️👎🏻. “Same old, same old” (sadly, a tradition of Dem Administrations) won’t get the job done, now any more than it has in the past! New faces for a new start!

And, it starts with better judges @ EOIR, which is entirely under YOUR control! An EOIR that actually fulfills its noble, one-time vision of “Through teamwork and innovation being the world’s best tribunals guaranteeing fairness and due process for all” will be a model for fixing our failing Federal Courts — all the way up to the leaderless and complicit Supremes who failed, particularly in immigration, human rights, voting rights, and racial justice, to effectively and courageously stand up to the Trump-Miller White Nationalist agenda of hate and tyranny!

We are where we are today as a nation, to a large extent, because of the Supremes’ majority’s gross mishandling of the “Muslim Ban” cases which set a sorry standard for complicity and total lack of accountability for unconstitutional actions, racism, dishonesty, cowardly official bullying, and abandonment of ethics by the Executive that has brought our nation to the precipice! Life tenure was actually supposed to protect us from judges who wouldn’t protect our individual rights. In this case, it hasn’t gotten the job done! Better judges for a better America!

🇺🇸⚖️🗽👍🏼Due Process Forever! The EOIR Clown Show🤡🦹🏿‍♂️ ☠️⚰️Never!

PWS

01-13-21

⚖️🗽🇺🇸LATEST IMMIGRATION CERT GRANT PRESENTS OPPORTUNITY FOR BIDEN & GARLAND TO CONFESS ERROR, ACHIEVE UNIFORMITY, & START APPLYING “PRACTICAL SCHOLARSHIP” TO ADJUST STATUS OF MANY DESERVING LONG-TIME TPS HOLDERS WHO NOW QUALIFY FOR PERMANENT STATUS! — Will The Biden Team & The Garland Group @ DOJ Finally Tap A Better Qualified, Ethical Solicitor General With An Understanding Of, & Firm Commitment To, A Progressive Use Of Immigration Laws To Further Human Rights, Achieve Equal Justice, & Stop Promoting Unnecessary, Wasteful, Avoidable “Circuit Spits?” — After Four Years Of Unmitigated Kakistocracy,🤮☠️ DOJ & DHS Both Need Immediate “De-Clownification” 🤡🦹🏿‍♂️ !

https://lawprofessors.typepad.com/immigration/2021/01/supreme-court-to-review-adjustment-of-statustps-case.html

Dean Kevin Johnson reports @ ImmigrationProf Blog:

Yesterday, the Supreme Court granted certiorari in Sanchez v. Wolf, which presents the question under the Immigration and Nationality Act whether a Temporary Protected Status (TPS) recipient may adjust his or her status to that of a lawful permanent resident. The Third Circuit held that TPS recipients were not entitled to adjust their status because TPS status was not an “admission,” under 8 U.S.C. § 1255. The Third Circuit decision in Sanchez conflicts with the rulings of the Sixth and Ninth Circuits.

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

Here’s the government’s position in a nutshell: Notwithstanding the “plain language” of section 244(f)(4) which makes holders of TPS status eligible to adjust status in the U.S. if they meet all of the requirements for legal immigration (usually an an approved visa petition based on family ties or job skills), we have employed legal gobbledygook to refuse to adjust them. Thereby, we mindlessly keep them in “suspended animation” in the U.S. although they are long-time productive members of our society who have resided here with permission and work authorization and now meet our criteria for permanent immigration.

Sound pretty stupid? That’s because it is! I actually had this issue argued before me at the Arlington Immigration Court. Not surprisingly, the ICE Assistant Chief Counsel was unable to come up with any rational reason for circumventing the statutory language to achieve a nonsensical result that actually unnecessarily inflated the case backlog and served no legitimate government purpose. Needless to say, I ruled in the respondent’s favor.

This isn’t “rocket science.” The new SG should join the petitioner’s counsel, JAIME W. APARISI (who regularly appeared before me in Arlington) and LISA S. BLATT (Williams & Connolly LLP) in agreeing that this issue was correctly resolved in the respondents’ favor by the Sixth & Ninth Circuits.

Then, ICE should ask the “new BIA” (real judges with immigration and human rights backgrounds appointed by AG Garland) to adopt this view nationwide.

Presto!

No more bogus, contrived “circuit split;”
TPSers with adjustment eligibility can be taken out of EOIR’s ridiculous 1.1 – 1.5 million case backlog and returned to USCIS for routine adjustment of status;
Productive, long-time members of our society can become green card holders, get on the path to citizenship, and reach their full productive potential for both their benefit and the benefit of our society;
A win, win, win, instead of wasting time attempting to achieve an illegal, undesirable, yet fundamentally stupid, irrational, and counterproductive result;
And, unlike the stupidity going on now, it actually doesn’t require expenditure of funds (actually will save and perhaps even generate money from adjustment filing fees), major regulatory changes, new legislation, or protracted litigation. It’s “low hanging fruit” that the Trump immigration kakistocracy has let rot on the tree! Rational administration of the immigration laws can actually be quite efficient.

Is it any wonder that the EOIR bogus “court,” whose “guiding principle” is “always construe the law against the individual and in favor of DHS” is building uncontrollable backlog hand over fist, even with double the number of “judges?” This is “fraud, waste, and abuse” in action! 💸🤮 Not something I’d want to “own” if I were Judge Garland (which, of course, I’m not, and never will be)!

That’s how “practical scholarship” @ EOIR, DOJ, and ICE; smarter, better, more ethical progressive leadership at the DOJ; and the private/NGO/academic bar can work together to solve legal problems and stop wasting the time of the Federal Courts and the Supremes. Perhaps, with the time saved, the Williams Connolly LLP team can even take some more pro bono asylum cases, make the system work better at the “retail level,” and save some deserving lives of vulnerable individuals who have been mistreated by Miller and his neo-Nazi gang of thugs and the malicious incompetents now “running” EOIR (into the ground) in the process.

Not rocket science! But, it will require Judge Garland to bring in some members of the NDPA who actually understand the interrelated issues of immigration, human rights, due process, civil rights, equal justice, and practical problem solving to replace the current “Clown Show” 🤡🦹🏿‍♂️ at EOIR and the DOJ. (Not to mention, a comprehensive “de-clownification” 🦹🏿‍♂️🤡 of DHS by Secretary-designate Mayorkas and his team). All of those skills have been conspicuously absent from the Executive branch during the last four years of kakistocracy.

⚖️🗽🇺🇸Due Process Forever! Let the De-Clownifying 🤡🦹🏿‍♂️ Of Government Begin!

PWS

01-09-21

👹AS CURTAIN FALLS ON KAKISTOCRACY, BIA CLOWN SHOW 🤡 ROLLS ON TOWARD OBLIVION! — Latest Travesty Ignores Clear Statutory Language, Elevates AAO Over Circuits, Shafts TPSers Who Qualify For Legal Permanent Immigration, Makes Hash Out Of Uniform Administration Of Laws!🏴‍☠️☠️🤮

EYORE — “Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”

Kangaroos — All In A Day’s Work — BIA Members Unwind After Ignoring Statute, Dissing Three Circuits, Screwing TPS Holders, Beating Up Unrepresented Respondent, & Aiding Their “Partners” At ICE In Demeaning Justice
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https://www.google.com/url?q=https://lnks.gd/l/eyJhbGciOiJIUzI1NiJ9.eyJidWxsZXRpbl9saW5rX2lkIjoxMDAsInVyaSI6ImJwMjpjbGljayIsImJ1bGxldGluX2lkIjoiMjAyMDExMjMuMzA5ODM1ODEiLCJ1cmwiOiJodHRwczovL2dvLnVzYS5nb3YveDdmMjgifQ.3HiEf4LU6Bwc5S-T8jqxR2hmHX9AQ585LsaksbtbRnk/s/842922301/br/90293063224-l&source=gmail-imap&ust=1606764672000000&usg=AOvVaw3Fk5zcttz_HLhd3nxbHyiO

Matter of PADILLA RODRIGUEZ, 28 I&N Dec. 164 (BIA 2020)

BIA HEADNOTE:

(1) Where the temporary protected status (“TPS”) of an alien who was previously present in the United States without being admitted or paroled is terminated, the alien remains inadmissible under section 212(a)(6)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(A)(i) (2018), and removal proceedings should not be terminated.

(2) An alien whose TPS continues to be valid is considered to be “admitted” for purposes of establishing eligibility for adjustment of status only within the jurisdictions of the United States Courts of Appeals for the Sixth, Eighth, and Ninth Circuits.

BIA PANEL: MALPHRUS, Deputy Chief Appellate Immigration Judge; HUNSUCKER, Appellate Immigration Judge; GEMOETS, Temporary Appellate Immigration Judge

OPINION BY: HUNSUCKER, Appellate Immigration Judge

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

For today’s BIA, it apparently doesn’t get any better than beating up on an unrepresented respondent who actually won before the Immigration Judge! Where was the “BIA Pro Bono Program” on this one?

It’s not rocket science: INA section 244(f)(4) says: “for purposes of adjustment of status under section 245 and change of status under section 248, the alien shall be considered as being in, and maintaining, lawful status as a nonimmigrant.”

So, clearly, an individual in TPS status who is eligible for permanent immigration can adjust statutus under INA section 245, right? Of course, unless you’re the BIA and stretching to find a way to deny. And, elevating the meanderings of the AAO over the considered opinions of three Circuit Courts of Appeals shows the level of intellectual honesty and scholarship on today’s BIA!

Now, lets look at the policy results produced by the BIA’s intentional misconstruction of the plain meaning of the statute.

First, it means that except in the 6th, 8th, and 9th Circuits, individuals in TPS status, basically long term residents who are going to be remaining, working, paying taxes, and raising families in the U.S., and who also are qualified to permanently immigrate (e.g., spouses of U.S. citizens) will be mindlessly barred from doing so.

But, wait, it gets even better! That’s only the case if they have the misfortune to live in a Circuit other than the 6th, 8th, or 9th. Of course, if they are able, they could move to one of those circuits to adjust.

Make sense? Only if you’re part of the “Clown Show of Denial.” Then, you ignore the statute, diss the Circuit Courts, and go out of your way to promote a non-uniform interpretation of the law that will screw contributing members of our society residing here legally and arbitrarily block them from achieving the permanent status to which they are entitled.

Now you can see what a difference replacing the “Clown Show” with real judges from the NDPA could make — both for the human lives and futures at stake and for sane, lawful, and fiscally efficient administration of our immigration laws!

REPEAT AFTER ME: Hey Hey, Ho Ho, Tell The Biden Team That The EOIR Clown 🤡 Show Has Got To Go!

EOIR clown Show Must Go T-Shirt — “EOIR Clown Show Must Go” T-Shirt Custom Design Concept

Due Process Forever! Clownocracy, never!

PWS

11-24-20

🛡⚔️⚖️ADVENTURES OF THE ROUND TABLE: Latest Amicus Brief To Supremes Weighs In On “Stop Time Rule” — Niz-Chávez v. Barr — Many Thanks to The Pro Bono Stars @ Gibson Dunn!

Niz-Chavez Amicus Brief TO FILE

No. 19-863 IN THE

_______________

AGUSTO NIZ-CHAVEZ,

v.

WILLIAM P. BARR, ATTORNEY GENERAL,

Respondent.

_______________

On Writ Of Certiorari

To The United States Court of Appeals For the Sixth Circuit _______________

BRIEF OF THIRTY-THREE FORMER IMMIGRATION JUDGES AND MEMBERS OF THE BOARD OF IMMIGRATION APPEALS

AS AMICI CURIAE

IN SUPPORT OF PETITIONER _______________

RICHARD W. MARK

Counsel of Record

AMER S. AHMED

TIMOTHY SUN

DORAN J. SATANOVE

GIBSON, DUNN & CRUTCHER LLP 200 Park Avenue

New York, NY 10166 (212) 351-4000 rmark@gibsondunn.com

Counsel for Amici Curiae

INTEREST OF AMICI CURIAE

1

1

Amici curiae are thirty-three former immigration judges and members of the Board of Immigration Ap- peals (“BIA” or “Board”).2

Amici curiae have dedicated their careers to the immigration court system and to upholding the immi gration laws of the United States. Each is intimately familiar with the functioning of immigration courts and is invested in improving the fairness and effi- ciency of the United States immigration scheme. Amici curiae’s extensive experience adjudicating im- migration cases provides a unique perspective on the procedures and practicalities of immigration proceed- ings.

SUMMARY OF ARGUMENT

The straightforward question this case presents is one of enormous practical significance: Must the ini- tial written notice served on noncitizens to commence their removal proceedings provide—in one docu- ment—the “time and place at which the proceedings will be held” (along with charges and other specified information) in order to satisfy the requirements of 8 U.S.C. § 1229(a), or does the statute allow the govern- ment to cobble together the required elements of a “notice to appear” from multiple documents, issued at different times, some containing misinformation, and

1 All parties have consented to the filing of this brief. Amici state that this brief was not authored in whole or in part by coun- sel for any party, and that no person or entity other than amici or their counsel made a monetary contribution intended to fund the preparation or submission of this brief.

2 The appendix provides a complete list of signatories.

2

none of which alone contains all of the statutorily re- quired information?

Reversing the Sixth Circuit and holding that § 1229(a)’s requirements must be included in a single document will greatly reduce the procedural and bu- reaucratic errors attendant in a two-step process that detrimentally impact thousands of noncitizens law- fully seeking to remain in this country.

I. For noncitizens applying for cancellation of re- moval, service of a valid “notice to appear” under § 1229(a) triggers the so-called “stop-time” rule, which terminates the period of continuous presence required for cancellation eligibility. See 8 U.S.C. §§ 1229b(d)(1), 1229b(a)(2), 1229b(b)(1)(A). Separately but relatedly, for noncitizens ordered removed in ab- sentia, whether that “severe” penalty, Pereira v. Ses- sions, 138 S. Ct. 2105, 2111 (2018), is proper depends on whether the notice served on the noncitizen satis- fied the requirements of §1229(a). 8 U.S.C. § 1229a(b)(5)(A). This Court’s decision will thus touch not only those like Petitioner who are seeking cancel- lation of removal, but also those who may not even have been provided sufficient notice to appear for their removal hearings—and potentially severely punished as a result.

II. The Sixth Circuit’s ruling approves a two-step notice process that involves: (i) the Department of Homeland Security (“DHS”) serving on a noncitizen a putative notice to appear lacking time-and-place in- formation (or, perhaps worse, that includes fake time- and-place information), and (ii) only after that notice to appear is filed and docketed with the immigration court, the immigration court separately sending a “no- tice of hearing” supplying the time-and-place infor- mation to the noncitizen.

3

Under this two-step process an initial notice lack- ing § 1229(a)’s time-and-place information languishes in a proverbial “No Man’s Land” until the notice is filed with an immigration court and entered into the court’s computer systems—a process that can take years. This delay increases the risk of procedural er- rors and lost filings, such as crucial Change of Address forms, which can result in noncitizens never receiving time-and-place information at all—potentially result- ing in wholly unjustified in absentia removal orders.

Sorting through those issues adds to immigration judges’ fact-finding burdens by requiring them to di- vert attention from the merits of a case to investigate collateral issues like whether time-and-place infor- mation was provided in a second document; whether that document was properly served; and whether a fil- ing like a Change of Address form was submitted but ultimately lost in “No Man’s Land.” When coupled with the pressure to complete cases—even if it means churning out in absentia removal orders without fully considering whether the noncitizen received adequate time-and-place notice—the result may be an increase in unwarranted removal orders.

These problems would be ameliorated if the gov- ernment simply provided the actual time-and-place information in a single document as required by § 1229(a).

III. Requiring DHS to work with the Executive Office of Immigration Review (“EOIR”) to obtain time- and-place information before serving a notice to ap- pear—and including such information in that docu- ment, as § 1229(a) and Pereira require—is practical and within the government’s capabilities.

4

A single-step notice process, consistent with this Court’s ruling in Pereira, furthers the due process ax- iom that a party charged to defend against a legal pro- ceeding must receive notice of the time and place of the proceeding and an opportunity to be heard.

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

Read the complete brief, with better formatting, at the link!

Of course we couldn’t have done this without the amazing talent and assistance of Amer S. Ahmed and the rest of the “Pro Bono All-Star Team” 🎖🏆 @ Gibson Dunn! Just another example of the essential contribution of pro bono lawyers to literally saving our legal system that has been featured on “Courtside” this week!

Due Process Forever!

PWS

08-14-20

MORE DEADLY ☠️ MISTAKES: 6th Cir. Finds BIA Ignored Relevant Evidence In Trying To Deny Asylum To Russian Whistleblower — Skripkov v. Barr

Dan Kowalski reports from LexisNexis Immigration Community:

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca6-on-asylum-russia-corruption-skripkov-v-barr#

CA6 on Asylum, Russia, Corruption: Skripkov v. Barr

Skripkov v. Barr

“Andrei Skripkov, a citizen of Russia, seeks review of a decision by the Board of Immigration Appeals (BIA) upholding an Immigration Judge’s (IJ’s) denial of his application for asylum and the withholding of removal. Skripkov asserted in his application that he was persecuted in his home country on account of his political opinion. He specifically contended that his anticorruption whistleblowing activities motivated Russian officials to persecute him. The IJ and the BIA, on the other hand, found that the officials were motivated solely by their pecuniary interest in furthering a corrupt scheme disrupted by Skripkov. In his petition for review, Skripkov argues that the BIA erred in disregarding evidence that he would be criminally prosecuted for his political opinion if he is returned to Russia. For the reasons set forth below, we GRANT Skripkov’s petition for review and REMAND the case to the BIA for further proceedings consistent with this opinion.”

[Hats off to Brenna D. Duncan!]

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

When the objective is to reject, not protect, mistakes are inevitable. This is just the tip of the iceberg. Most folks whose lives are being chewed up and spit out by the “designed to be unjust” Immigration Court system don’t have the good fortune to be represented by Brenna D. Duncan or someone of her caliber.

Indeed, under the ongoing illegal travesty that now passes for “justice” in America, most legal asylum seekers are turned away at the border without any hearing or meaningful process at all.

Interestingly, Brenna D. Duncan, a rising superstar at the international commercial law firm of Perkins Coie appears to have practiced primarily in the area of commercial litigation. Yet, she clearly understands immigration and human rights law better than the Immigration Judge and the BIA Appellate Immigration Judges involved in this case.

That’s why actual experience representing immigrants and asylum seekers is such a critical qualification for good Immigration Judges at both the trial and appellate levels as well as being something that should be a factor in appointing future Article III Judges at all levels right up to and particularly including the Supremes. Years of one-sided prosecutorial or law enforcement experience is often no substitute for the “real deal” of experience understanding immigrants and asylum seekers from their perspective.

The current Immigration Court system is intentionally and fatally skewed against asylum seekers, immigrants, due process, and fundamental fairness. Until that changes, equal justice under law will continue to be a cruel, unachieved illusion in our American justice system.

Due Process Forever!

PWS

07-22-20

“PEREIRA II” — SUPREMES TAKE ANOTHER “STOP TIME” IMMIGRATION CASE — Niz-Chavez v. Barr

https://www.scotusblog.com/2020/06/court-grants-immigration-case/

Amy Howe reports for SCOTUS Blog:

Court grants immigration case

This morning the Supreme Court issued orders from the justices’ private conference last week. The court added one new case to its merits docket for the term that begins in October. The justices once again did not act on two groups of high-profile petitions – one involving gun rights and the other involving qualified immunity – that they considered last week.

With the grant in Niz-Chavez v. Barr, the justices added another immigration case to their docket for next term. At issue in the case is the kind of notice that the government must provide to trigger the “stop-time rule,” which stops noncitizens from accruing the time in the United States that they need to become eligible for discretionary relief from deportation. Congress passed the “stop-time rule” to keep noncitizens from taking advantage of lengthy delays in deportation proceedings to continue to accrue time. Under the rule, a noncitizen’s time in the United States, for purposes of relief from deportation, ends when the government sends him a “notice to appear” containing specific information about a scheduled removal proceeding. The question that the justices agreed to decide today is whether all the necessary information must be provided in a single document in order to trigger the stop-time rule, as Agusto Niz-Chavez, who came to the United States from Guatemala in 2005, contends, or whether the government can trigger the rule by providing the information in multiple documents.

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

Our Round Table has filed amicus briefs on this issue in a number of similar cases, although not in this particular case, which originated in the 6th Circuit.

At issue here is the BIA’s precedent in Matter of Mendoza-Hernandez, 27 I. & N. Dec. 520 (BIA 2019). There, in a now-rare en banc decision, the BIA majority basically “flicked off” the Supremes’ decision in Pereira v. INS, 138 S. Ct. 2105 (2018) and allowed the DHS to remedy a defective statutory Notice to Appear (“NTA”) with a later-issued EOIR notice of hearing providing the missing information to “fill in the blanks” from the original defective notice.

In an even more unusual and potentially career-shortening move, six of the BIA’s then 15 Appellate Immigration Judges filed a strongly-worded dissent accusing their majority colleagues of ignoring both the words of the statute and the Court’s Pereira decision. Perhaps not surprisingly, three of the dissenting judges have since retired from the BIA and a fourth, the Vice Chair, was passed over for Acting Chair in a highly unusual personnel move by the DOJ, which controls the BIA. (One of the primary reasons for having a designated “Vice Chair” is to be the “Acting Chair” in the absence of the Chairman.) In their places, Barr has appointed some of the most notorious hard-line asylum denying Immigration Judges in the nation.

The Supremes have thus far tiptoed around the glaring unconstitutionality of a so-called “appellate tribunal” that is appointed, wholly controlled by, and answers to the chief prosecutor, the Attorney General. Not surprisingly, upon discovering the Constitution-nullifying power of a “captive court system,” that is not a court at all under any common understanding of the term, the Administration has leveraged it to the max as a tool for their White Nationalist anti-immigrant agenda. Indeed, all the recent BIA and Attorney General precedents have ruled in favor of the DHS position, even where statutory language, Article III court rulings, prior precedents, and common sense strongly supported the opposite results.

And, many Courts of Appeals have continued to fictionalize that the highly politicized and “weaponized” BIA is an “expert tribunal” entitled to “Chevron deference.” Any true immigration law expert would say that proposition is absurd. Yet, it conveniently furthers the causes of both “judicial task avoidance” and the White Nationalist agenda of the Administration.

Because the BIA now occupies itself not with fair and impartial, expert decision-making, but mostly with keeping the “deportation express” running and insuring that DHS prevails over the legal claims of migrants and asylum seekers to fair and humane treatment under the law, the Supremes are finding themselves in the middle of the “statutory and regulatory nitty gritty” of immigration law that was supposed to be the province of a competent and impartial BIA.

While that has occasionally, as in Pereira, worked to the advantage of individuals seeking justice, for the most part, the Supremes have been willing enforcers of the Administration’s abrogation of immigration laws without Congressional participation and “Dred Scottification” of “the other” in violation of our Constitution, and indeed, in violation of both international conventions and fundamental human decency.

Think of how much better and more efficiently the immigration system could run with a constitutionally-required independent Immigration Court utilizing fair and impartial judges selected on the basis of expertise and reputation for fairness and scholarship rather than commitment to DHS enforcement goals. Think of how much better off our society would be if the Supremes stood up for equal justice for all, rather than enabling a far-right would-be authoritarian scofflaw regime following a racially-biased agenda of dehumanization, degradation, and deportation.

Due Process Forever!

PWS

06-08-20

RIGGED “COURTS” – BIA’S ANTI-ASYLUM BIAS “OUTED” AGAIN, AS 6TH CIR. BLASTS BOGUS DENIAL OF ASYLUM TO GUATEMALAN DOMESTIC VIOLENCE SURVIVOR – Says Sessions’s “Reasoning” in A-B- “Abrogated” By Judge Sullivan’s Ruling in Grace v. Whitaker — Juan Antonio v. Barr

https://www.opn.ca6.uscourts.gov/opinions.pdf/20a0156p-06.pdf

Juan Antonio v. Barr, 6^th Cir., 05-19-20, published

PANEL: COLE, Chief Judge; BOGGS and GIBBONS, Circuit Judges

OPINION BY: Judge Gibbons

CONCURRING OPINION: Judge Boggs

KEY QUOTES:

Footnote 3:

3Matter of A-R-C-G was overruled by Matter of A-B, which held that the Board in Matter of A-R-C-G- did not conduct a rigorous enough analysis in its determination that the particular social group was cognizable. See Matter of A-B-, 27 I. & N. Dec. 316, 331 (A.G. 2018) (noting that because DHS conceded that particular social group was cognizable, “the Board performed only a cursory analysis of the three factors required to establish a particular social group”). Our sister circuits have determined that this change counsels remand. See Padilla- Maldonado v. Att’y Gen. U.S., 751 F. App’x 263, 268 (3d Cir. 2018) (“While the overruling of A-R-C-G- weakens [the applicant’s] case, it does not automatically defeat her claim that she is a member of a cognizable particular social group. As we remand to the BIA to remand to the IJ, the IJ should determine whether [the applicant’s] membership in the group . . . is cognizable . . ..”); Moncada v. Sessions, 751 F. App’x 116, 118 (2d Cir. 2018) (“This Court, like the BIA, applies the law as it exists at the time of decision. And, where, as here, intervening immigration decisions from the executive branch alter the applicable legal standards, we have previously exercised our discretion to remand the matter to the BIA to apply the new standards in the first instance. Recognizing the wisdom of this practice, we take the same tack here and remand this case ‘for the BIA to interpret and apply the standards set forth in [Matter of A-B-] in the first instance.’” (quoting Biao Yang v. Gonzales, 496 F.3d 268, 278 (2d Cir. 2007) (internal citations omitted)).

However, Matter of A-B- has since been abrogated. See Grace v. Whitaker, 344 F. Supp. 3d 96 (D.D.C. 2018). Grace found that the policies articulated in Matter of A-B- were arbitrary, capricious, and contrary to law. See id. at 126–27 (holding that there is no general rule against claims involving domestic violence as a basis for membership in a particular social group and that each claim must be evaluated on an individual basis under the statutory factors). The district court’s decision in Grace is currently on appeal to the D.C. Circuit. We acknowledge that we are not bound by Grace but find its reasoning persuasive. Because Matter of A-B- has been abrogated, Matter of A-R-C-G- likely retains precedential value. But, on remand, the agency should also evaluate what effect, if any, Matter of A-R-C-G- and Grace have had on the particular social group analysis. See Bi Xia Qu, 618 F.3d at 609 (“When the BIA does not fully consider an issue, . . . the Supreme Court has instructed that a reviewing court ‘is not generally empowered to conduct a de novo inquiry into the matter being reviewed.’ Rather, ‘the proper course, except in rare circumstances, is to remand to the [BIA] for additional investigation or explanation.’” (quoting Gonzales v. Thomas, 547 U.S. 183, 186 (2006))).

. . . .

When an asylum claim focuses on non-governmental conduct, the applicant must show that the alleged persecutor is either aligned with the government or that the government is unwilling or unable to control him. See Khalili, 557 F.3d at 436. An applicant meets this burden when she shows that she cannot “reasonably expect the assistance of the government” in controlling her perpetrator’s actions. Al-Ghorbani, 585 F.3d at 998. For example, in In re S-A, the Board found that an applicant was eligible for asylum when she suffered domestic abuse at the hands of her father. In re S-A-, 22 I. & N. Dec. 1328 (BIA 2000). Relying on evidence showing that “in Morocco, domestic violence is commonplace and legal remedies are generally unavailable to women,” and that “‘few women report abuse to authorities’ because the judicial procedure is skewed against them,” the Board held that “even if the respondent had turned to the government for help, Moroccan authorities would have been unable or unwilling to control her father’s conduct.” Id. at 1333, 1335 (quoting Committees on International Relations and Foreign Relations, 105th Cong., 2d Sess., Country Reports on Human Rights Practices for 1997 1538 (Joint Comm. Print 1998)).

Here, both the immigration judge and Board agreed that the beatings, rape, and threats Maria suffered were severe enough to constitute persecution, but that she failed to show that the Guatemalan government was unwilling or unable to control Juan. In support of its conclusion,

No. 18-3500 Juan Antonio v. Barr Page 16

the Board noted that the government issued a restraining order against Juan, the mayor fined Juan for beating their daughter, and that Maria and their children were able to remain in their home for the year before she left Guatemala. AR 5, BIA Decision. Maria argues on appeal that the Board’s decision was not supported by substantial evidence on the record as a whole. We agree with her.

Taken as a whole, the record compels the conclusion that Maria cannot “reasonably expect the assistance of the government” in controlling Juan. Al-Ghorbani, 585 F.3d at 998. First, the Board’s conclusion that the restraining order effectively controlled Juan is clearly contradicted by the evidence. Maria testified that Juan “did not obey [the restraining order] because there [was] no police” and “[h]e wasn’t afraid” of any consequences, AR 180, Immigration Ct. Tr., and that at some time that year, Juan came to Maria’s home and beat their oldest child with his belt. She further testified that she went to the police station to file a complaint, but the police never investigated the crime. Second, the Board’s conclusion that “the respondent and her children were able to live legally in the family house” for a year does not paint an accurate picture of that year. AR 5, BIA Decision. The year was not a “period of calm,” as the Board characterized it, but rather, a year which affirmed that the Guatemalan government had not effectively gained control over Juan. Id at 5 n.2. Throughout the course of the year, Maria received threats that Juan “was going to kill [her], and if not[,] that he would pay someone to do something.” AR 188, Immigration Ct. Tr. Juan’s girlfriend also “began threatening [Maria] about once a week, yelling at [her] . . . that she and Juan would kill [her] if [she] didn’t move out of the house.” AR 332, I-589 Appl. In May 2014, Juan’s sister told Maria that “Juan had bought a gun and that he planned to kill [Maria].” Id. at 333. The events of that year indicate that the government had not effectively gained control over Juan.

Moreover, that Juan received a fine of approximately $200 for beating up their oldest child (from a judge who no longer works in town, at a courthouse that has since been destroyed) may indicate some willingness of the Guatemalan government to control Juan but it does not indicate its ability to do so. The concurrence points to the restraining order and fine as evidence

No. 18-3500 Juan Antonio v. Barr Page 17

Guatemala is willing to enforce its laws but may not always be successful.4 While the concurrence would emphasize what Guatemala did, it is more important to look at the numerous instances when the government failed to act or even respond as well as the harm the government failed to prevent. The death threats Maria received continued even after Juan was fined. And Juan’s purchasing of a gun—which ultimately led Maria to flee—came after Juan was fined. Moreover, the police failed to respond to Maria’s calls for help on two occasions when Juan came to Maria’s house and threatened her and/or their children. In reviewing this evidence, the immigration court opined that it “would be left to wonder if Juan intended to kill the respondent, the mother of his four children, why would he not have done so.” AR 70, Immigration Ct. Order. But it cannot be that an applicant must wait until she is dead to show her government’s inability to control her perpetrator.

The supplemental evidence regarding Guatemala’s country conditions corroborates that Maria could not “reasonably expect the assistance of the government” in controlling Juan’s actions. Al-Ghorbani, 585 F.3d at 998; see In re S-A-, 22 I. & N. Dec. 1328 (BIA 2000). The evidence Maria submitted shows that “[t]he systemic marginalization of indigenous communities . . . continues with no meaningful efforts by the government to overcome it.” AR 285, State of the World’s Minorities and Indigenous Peoples 2015—Guatemala. It also indicates that “[i]mpunity for perpetrators remain[s] very high,” AR 255, Country Reports on Human Rights Practices for 2016, and that for Mayan indigenous women, there is “increased vulnerability and gender-based violence . . . exacerbated by a weak state apparatus that struggles to implement laws and programming to protect these groups.” AR 274, Guatemala Struggles to Protect Women Against Endemic Violence. Indigenous Mayan women are particularly unable to seek help from the government because they speak a different language from most of the country’s authorities. To be sure, the supplemental material does not indicate no willingness on behalf of the Guatemalan government—indeed, the country has taken some steps to codify laws prohibiting violence against women—but rather, the material reinforces the country’s lack of

4The concurrence’s reference to the enforcement of domestic abuse law violations in this country is both inapt and irrelevant.

No. 18-3500 Juan Antonio v. Barr Page 18 resources and infrastructure necessary to protect indigenous Mayan women from their perpetrators.

Further, the Board’s conclusion that Maria did not meet her burden of showing that the Guatemalan government was “helpless” relies on a standard that has since been deemed arbitrary and capricious. AR 5, BIA Decision. The United States District Court for the District of Columbia found that the “complete helplessness” standard is arbitrary, capricious, contrary to law, and “not a permissible construction of the persecution requirement.” Grace v. Whitaker, 344 F. Supp. 3d 96, 130 (D.D.C. 2018).

Thus, the Board’s conclusion that Maria did not demonstrate that the Guatemalan government was unwilling or unable to control Juan is not supported by “reasonable, substantial, and probative evidence on the record considered as a whole.” Zhao, 569 F.3d at 247 (quoting Koulibaly, 541 F.3d at 619). Maria’s testimony about her experiences, corroborated by supplemental evidence of the conditions for indigenous Mayan women in Guatemala, compels a contrary conclusion to that of the Board. See Mandebvu, 755 F.3d at 424. Based on the evidence in the record, Maria could not “reasonably expect the assistance of the government” in controlling Juan’s actions. Al-Ghorbani, 585 F.3d at 998. We therefore vacate the Board’s finding that Maria did not show that the government was unable or unwilling to protect her and remand so the agency can reconsider her application consistent with this opinion.

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

Thanks to my Round Table colleague Judge Jeffrey Chase for spotting this decision and sending it my way.

And congratulations to Margaret Wong, Esquire, of Cleveland, OH, who represented the respondent so ably before the 6^th Circuit. Margaret and the attorneys from her firm appeared before me numerous times during the many years that I was assigned to the Cleveland docket part-time from Arlington, with most of the hearings taking place by televideo.

Margaret W./ Wong
Senior PartnerMargaret W. Wong & Associates LLC

The BIA’s bogus “helpless standard” came directly from Matter of A-B- — Sessions’s unethical, legally incorrect, and misogynistic attempt to write female domestic violence victims from Central America out of refugee protections as part of his White Nationalist agenda. Judge Gibbons’s opinion found persuasive U.S. District Judge Sullivan’s (D. D.C.) conclusion in Grace v. Whitaker that Sessions’s A-B- atrocity was “arbitrary, capricious, and contrary to law.”

This further confirms the problems of a politicized and weaponized Immigration Court system controlled by anti-asylum politicos. How many more “Marias” are out there who are arbitrarily denied protection by the Immigration Courts and the BIA, but lack the ability to obtain competent counsel to assist them and/or are not fortunate enough to have a Court of Appeals panel that takes their case seriously, rather than just “deferring” to the BIA? For example, the Fifth Circuit has “tanked” on the A-B- issue. And, today, the Trump regime is being allowed to turn away asylum seekers at the border in violation of law and without any meaningful opportunity whatsoever to present a claim.

Disgraceful as the BIA’s performance was in this case, worse happens every day in the broken Immigration Court system and the abusive, scofflaw enforcement system administered by the Trump regime. And those charged with putting an end to such blatant violations of law and human rights – the Article III Judiciary – have largely shirked their duty to put an end to this unconstitutional, illegal, unethical, and inhumane “bad joke” of a “court system” and to stop the regime’s illegal abrogation of U.S. asylum laws.

Due Process Forever!

PWS

05-19-20

EOIR WRONG AGAIN: Split 6th Cir. Says BIA Screwed Up Corroboration, Nexus Requirements In Mexican PSG Withholding Case — GUZMAN-VAZQUEZ v. BARR!

Dan Kowalski report from LexisNexis Immigration Community:

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca6-on-corroboration-social-group-guzman-vazquez-v-barr

CA6 on Corroboration, Social Group: Guzman-Vazquez v. Barr

Guzman-Vazquez v. Barr

“Manuel Guzman, a native and citizen of Mexico, petitions for review of the decision of the Board of Immigration Appeals (“BIA”) affirming an immigration judge’s denial of his application for withholding of removal. Because the IJ and BIA erred in failing to give Guzman an opportunity to explain why he could not reasonably obtain certain corroborative evidence, because substantial evidence does not support the Immigration Judge (“IJ”) and BIA’s determinations regarding the unavailability of evidence to corroborate Guzman’s claim about abuse by his stepfather, and because the BIA incorrectly required Guzman to demonstrate that his membership in a particular social group was “at least one central reason” for his persecution, we GRANT the petition for review, VACATE the BIA’s order, and REMAND for proceedings consistent with this opinion.”

[Hats off to R. Andrew Free!]

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PANEL: MERRITT, MOORE, and MURPHY, Circuit Judges.

OPINION: Judge Moore

DISSENT: Judge Murphy

In looking for ways to deny protection, the BIA continues to “blow the basics.” That’s going to continue to happen as long as EOIR is allowed to operate as a branch of DHS Enforcement rather than a fair-minded, impartial court system with true expertise and which grants needed protection in meritorious cases, rather than searching for specious “reasons to deny.”

No wonder the EOIR backlog is mushrooming out of control when those responsible for doing justice waste countless time and resources “manufacturing denials,” rather than just promptly granting relief in many meritorious cases.

PWS

05-18-20

LAW YOU CAN USE: As 6th Cir. Veers Off Course To Deny Asylum To Refugee Who Suffered Grotesque Past Persecution, Hon. Jeffrey Chase Has A Better Idea For An Approach To “Unwilling Or Unable To Control” That Actually Advances The Intent Of Asylum Law!

https://www.jeffreyschase.com/blog/2019/4/21/a-better-approach-to-unable-or-unwilling-analysis

Apr 21 A Better Approach to “Unable or Unwilling” Analysis?

“K.H., a Guatemalan native and citizen, was kidnapped, beaten, and raped in Guatemala when she was seven years old.” That horrifying sentence begins a recent decision of the U.S. Court of Appeals for the Sixth Circuit denying asylum to that very same youth.

In that case, DHS actually stipulated that the applicant was persecuted on account of a statutorily protected ground. But the insurmountable hurdle for K.H. was her need to establish that the government of Guatemala was unable or unwilling to control the gang members who had persecuted her.

Asylum is supposed to afford protection to those who are fleeing something horrible in their native country. Somehow, our government has turned the process into an increasingly complex series of hoops for the victim to jump through in order to merit relief. Not long after Congress enacted legislation in 2005 making it more difficult for asylum seekers to be found believable, the Seventh Circuit Court of Appeals acknowledged that “asylum hearings are human events, and individuals make mistakes about immaterial points…Basing an adverse credibility finding on these kinds of mistakes appears to be more of a game of ‘gotcha’ than an effort to critically evaluate the applicant’s claims.” Sankoh v. Mukasey, 539 F.3d 456, 470 (7th Cir. 2008). More recent developments have extended the game of “gotcha” beyond credibility determinations and into substantive questions of law.

It is recognized that one can qualify for asylum where the persecutors are not part of the government, provided that the government is either unable or unwilling to control them. In a recent amicus brief, the Office of the United Nations High Commissioner for Refugees (UNHCR) correctly stated what seems obvious: that “the hallmark of state protection is the state’s ability to provide effective protection, which requires effective control of non-state actors.” As the whole point of asylum is to provide humanitarian protection to victims of persecution, of course the test must be the effectiveness of the protection. UNHCR continued that the fact that a government has enacted laws affording protection is not enough, as “even though a particular State may have prohibited a persecutory practice…the State may nevertheless continue to condone or tolerate the practice, or may not be able to stop the practice effectively.”

When I was an immigration judge, I heard testimony from country experts that governments were often inclined to pass laws or even create government agencies dedicated to the protection of, e.g. religious minorities solely for cosmetic reasons, to give the appearance to the international community that it was complying with international human rights obligations, when in reality, such laws and offices provided no real protection. But UNHCR recognizes that even where there is good intent, “there may be an incongruity between avowed commitments and reality on the ground. Effective protection depends on both de jure and de facto capability by the authorities.”

Yet U.S. law has somehow recently veered off course. In unpublished decisions, the BIA began applying what seems like a “good faith effort” test, concluding that the asylum applicants had not met their burden of establishing that the government was “unable or unwilling to protect” if there was evidence that the government showed some interest in the issue and took some action (whether entirely effective or not) to provide protection. Such approach wrongly ignored whether the government’s efforts actually resulted in protecting the asylum seeker. Next, former Attorney General Jeff Sessions weighed in on the topic in his decision in Matter of A-B-, in which he equated a government’s unwillingness to control the persecutors (which could potentially be due to a variety of factors, including fear, corruption, or cost) with the much narrower requirement that it “condone” the group’s actions. He further opined that an inability to control requires a showing of “complete helplessness” on the part of the government in question to provide protection. These changes have resulted in the denial of asylum to individuals who remain at risk of persecution in their country of origin.

In K.H., it should be noted that the evidence that convinced the BIA of the Guatemalan government’s ability to afford protection included a criminal court judge’s order that the victim be moved to another city, be scheduled for regular government check-ins as to her continued safety there (which the record failed to show actually occurred), and the judge’s further recommendation that the victim seek a visa to join her family in the U.S. A criminal court judge’s directive to move to another city and then leave for a safer country hardly seems like evidence of the Guatamalan government’s ability or willingness to provide adequate protection; quite the opposite. But that is how the BIA chose to interpret it, and somehow, the circuit court found reason to let it stand under its limited substantial evidence standard for review.

Challenges to these new interpretations are reaching the circuit courts. Addressing the issue for the first time, the Sixth Circuit in K.H. created a rather involved test. The court first set out two broad categories, consisting of (1) evidence of the government’s response to the asylum seeker’s persecution, and (2) general evidence of country conditions. WIthin broad category (1), the court created three subcategories for inquiry, namely: (1) whether the police investigated, prosecuted, and punished the persecutors after the fact; (2) the degree of protection offered to the asylum seeker, again after the fact of their being persecuted, and (3) any concession on the part of the government, citing a Third Circuit decision finding a government’s relocation of a victim to Mexico as an admission by that government of its own inability to provide adequate protection. (Somehow, the criminal judge’s order to relocate K.H. to another city and then seek a visa to the U.S. was not viewed as a similar concession by the BIA.)

Under broad category (2) (i.e. country conditions), the court established two subcategories for inquiry, consisting of (1) how certain crimes are prosecuted and punished, and (2) the efficacy of the government’s efforts.

Some shortcomings of this approach jump out. First, many asylum applicants have not suffered past persecution; their claims are based on a future fear of harm. As the Sixth Circuit approach is based entirely on how the government in question responded to past persecution, how would it apply to cases involving only a fear of future persecution?

Secondly, and more significantly, the Sixth Circuit’s entire approach is to measure how well a government acted to close a barn door after the horse had already escaped. The test is the equivalent of measuring the owner of a china shop’s ability to protect its wares from breakage by studying how quickly and efficiently it cleaned up the broken shards and restocked the shelves after the fact.

I would like to propose a much simpler, clearer test that would establish with 100 percent accuracy a government’s inability or unwillingness to provide effective protection from a non-state persecutor. The standard is: when a seven year old girl is kidnapped, raped, and beaten, the government was presumably unable to provide the necessary effective protection.

If this seems overly simplistic, I point to a doctrine commonly employed in tort law, known as res ipsa loquitur, which translates from the Latin as “the thing speaks for itself.” It is something all lawyers learn in their first year of law school. I will use the definition of the concept as found on the Cornell Law School website (which is nice, as I recently spoke there), which reads:

In tort law, a principle that allows plaintiffs to meet their burden of proof with what is, in effect, circumstantial evidence. The plaintiff can create a rebuttable presumption of negligence by the defendant by proving that the harm would not ordinarily have occurred without negligence, that the object that caused the harm was under the defendant’s control, and that there are no other plausible explanations.

The principle has been applied by courts since the 1860s.

So where the government has stipulated that the respondent suffered persecution on account of a protected ground, should we really then be placing the additional burden on the victim of having to satisfy the “unable or unwilling” test through the above line of inquiry set out by the Sixth Circuit? Or would it be more efficient, more, humane, and likely to reach a more accurate result that conforms to the international law standards explained by UNHCR, to create a rebuttable presumption of asylum eligibility by allowing the asylum applicant to establish that the persecution would not ordinarily have occurred if the government had been able and willing to provide the protection necessary to have prevented it from happening? The bar would be rather low, as seven year olds should not be kidnapped, raped, and beaten if the police whose duty it was to protect the victim were both able and willing to control the gang members who carried out the heinous acts. The standard would also require a showing that such harm occurred in territory under the government’s jurisdiction (as opposed to territory in which, for example, an armed group constituted a de facto government).

Upon such showing, the burden would shift to DHS to prove that the government had the effective ability and will to prevent the persecution from happening in the first place (as opposed to prosecuting those responsible afterwards) by satisfying whatever complex, multi-level inquiry the courts want to lay out for them. However, DHS would not meet its burden through showing evidence of the government’s response after the fact. Rather, it would be required to establish that the Guatemalan government provides sufficient protection to its citizens to prevent such harm from occurring in the first instance, and that what happened to the asylum applicant was a true aberration.

Shifting the burden to DHS would make sense. It is often expensive to procure a respected country expert to testify at a removal proceeding. As more asylum applicants are being detained in remote facilities with limited access to counsel, it may be beyond their means to retain such experts themselves. The UNHCR Handbook at para. 196 recognizes the problems asylum seekers often have in documenting their claims. It thus concludes that “while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. Indeed, in some cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application.”

Furthermore, ICE attorneys who should welcome the role of such experts in creating a better record and increasing the likelihood of a just result have taken to disparaging even highly respected country experts, sometimes subjecting them to rather hostile questioning that slows down proceedings and might discourage the participation of such experts in future proceedings. Therefore, letting ICE present its own experts might prove much more efficient for all.

Incidentally, UNHCR Guidelines published last year state that while the Guatemalan government has made efforts to combat gang violence and has demonstrated some success, “in certain parts of the country the Government has lost effective control to gangs and other organized criminal groups and is unable to provide protection…” The report continued that some temporary police operations have simply caused the gangs to move their operations to nearby areas. The report further cited the problem of impunity for violence against women and girls, as well as other groups, including “human rights defenders, legal and judicial professionals, indigenous populations, children and adolescents, individuals of diverse sexual orientations and/or gender identities, journalists and other media workers.” The same report at pp. 35-36 also references corruption within the Guatemalan government (including its police force) as a “widespread and structural problem.” DHS would have to present evidence sufficient to overcome such information in order to rebut the presumption triggered by the fact of the persecution itself.

Another benefit of the proposed approach would be its impact on a victim’s eligibility for a grant of humanitarian asylum, which may be granted based on the severity of the past persecution suffered even where no fear of future persecution remains. A child who was kidnapped, raped, and beaten by gang members at the age of seven, and who will certainly suffer psychological harm for the rest of her life as a result, should clearly not be returned against her will to the country in which she suffered such horrific persecution. Yet the Sixth Circuit upheld the BIA’s denial of such humanitarian protection, because in affirming the Board’s conclusion that K.H. had not met her burden of showing the Guatemalan government was unable and unwilling to protect her (based solely on its after-the-fact response), it also upheld the BIA’s finding that K.H. did not meet all of the requirements necessary for her to have established that she suffered past persecution. This in spite of the fact that DHS stipulated that she did suffer past persecution on account of a statutorily protected ground. As only an applicant who established past persecution is eligible for humanitarian asylum, this very convoluted approach successfully blocked such remedy.

However, if the standard were to assume that the harm suffered by the asylum applicant triggers the presumption that the Guatemalan government was unable or unwilling to prevent it, the evidence that government’s subsequent efforts to prosecute those responsible and protect the victim would not serve to rebut the presumption. Rather, it would be considered as possible evidence of changed conditions in the country of origin sufficient to show that after suffering past persecution, the asylum applicant would now have no further fear of returning there. This critical distinction would then allow K.H. to be granted humanitarian asylum even if the government prevailed in its arguments, as opposed to facing deportation that would return her to the scene of such extreme persecution.

Copyright 2019 Jeffrey S. Chase. All rights reserved.

JEFF CHASE

Mar 28 The Immigration Court: Issues and Solutions

More bad news for you irresponsible “judicial dudes.” “No reasonable adjudicator” could have reached the conclusion you did in this case!

Like Judge Chase, I’ve done enough of these cases, at both the trial and appellate level, to know a clear grant when I see one. Indeed, on this record, the idea that the Guatemalan government is willing or able to protect this young lady is preposterous. It doesn’t even pass the “straight face” test. So much for hiding behind your “standards of review” fiction. Think of K.H. as your daughter or granddaughter rather than
“a mere stranger” and then see how your “head in the sand” legal analysis works out.

The questionable conduct of the judges at all three levels in this case shows why our current Immigration Court system is so screwed up. Individuals who could efficiently be granted protection at the lowest levels in an honest, well-functioning, and professional system are instead made to ”run the judicial gauntlet” while various “black robes” work hard and occupy time looking for reasons to “stiff” their valid claims for protection. Indeed, in a well-functioning system, cases like this would be granted at the Asylum Office level and wouldn’t clog the courts in the first place.

An independent judiciary with courage and integrity is essential to the survival of our democracy. Sadly, this case is a prime example of a system in failure — at all levels.

PWS

04-25-19

HON. JEFFREY S. CHASE: 6th Cir. Correctly Rejected BIA’s Disingenuous Approach To Res Judicata In Jasso! — Time To End The “Chevron Farce” In Immigration Cases!

https://www.jeffreyschase.com/blog/2018/12/31/6th-cir-reverses-bia-on-res-judicata

JEFFREY S. CHASE OPINIONS/ANALYSIS ON IMMIGRATION LAW

Dec 31 6th Cir. Reverses BIA on Res Judicata

In the final days of 2017, the Board of Immigration Appeals issued a precedent decision in Matter of Jasso Arangure.1 The respondent in that case, a longtime permanent resident, had been convicted of first-degree home invasion under Michigan law. ICE had placed him into removal proceedings because it claimed the conviction constituted an aggravated felony as a “crime of violence” under section 101(a)(43)(F) of the Immigration and Nationality Act. Although the immigration judge agreed with ICE, Mr. Jasso won his appeal because the 6th Circuit Court of Appeals, in another case, found the concept that a crime that in itself was not violent (i.e. home invasion) could be considered a “crime of violence” because hypothetically, a violent confrontation could occur, was unconstitutionally vague. As a result, Mr. Jasso’s case was terminated because the government had not met its burden of proof.

Two days later, the government commenced another case against Mr. Jasso. It again charged him, on the basis of the exact same home invasion conviction, of being removable as an aggravated felon, but this time, instead of labeling it a crime of violence, ICE argued that it met the definition of an aggravated felony burglary offense under section 101(a)(43)(G) of the Act. Mr. Jasso moved to terminate, arguing that the new proceedings were barred by the doctrine of res judicata, which forbids relitigating the same issue between the same parties where the matter has already reached a final judgment on the merits. The immigration judge did not terminate, and ordered the respondent removed.

On appeal, the BIA affirmed. The BIA had to acknowledge that res judicata had been found to apply in the administrative law context, and that the Board itself had applied the similar doctrine of collateral estoppel in its own precedent decisions. Nevertheless, the BIA concluded that it would be too burdensome “to require the DHS to present all possible bases for removal in a single proceeding.” That statement is remarkably misleading. In this case, it would have required the ICE attorney at most two extra minutes to add the additional charge of “burglary” to the original “crime of violence” charge. If ICE somehow neglected to do this in the original charging document, an ICE attorney could have added the additional charge later, a common practice.

The BIA added that “whether a particular offense is an aggravated felony is a legal determination affected by complex laws that are in constant flux,” the implication being how can we punish the poor DHS for not anticipating an unexpected change in law. But the same BIA proved the disingenuousness of this approach less than six months later, following former Attorney General Jeff Sessions’ decision in Matter of A-B-. Four days later, when the BIA decided an appeal that had been argued and decided while Matter of A-R-C-G- was still a precedent decision that was commonly relied on to grant domestic violence cases, the BIA did not say “a grant of asylum is a legal determination affected by complex laws that are in constant flux,” and remand the matter to allow the applicant to reformulate her arguments under the four-day-old decision. To the contrary, the Board said “the Attorney General has foreclosed the respondent’s arguments,” and dismissed the appeal with no meaningful analysis.2

Fortunately, Mr. Jasso appealed to the Sixth Circuit, which issued its decision in the final days of 2018. Under a concept known as Chevron deference, circuit courts must defer to the BIA’s interpretation of a statute if and only if the statutory language being interpreted is ambiguous. In recent years, the trend has been for the circuit courts to find the language ambiguous and accord such deference. In this case, it would have been particularly easy for the court to do so, because the Immigration and Nationality Act is completely silent as to whether the concept of res judicata should apply in removal proceedings.

However, the Sixth Circuit did something extraordinary. It first noted that the Supreme Court has recently taken the circuit courts to task for being too quick to find a statute ambiguous,3 and therefore decided to exercise due diligence before reaching such determination in the present case. And even though there was no statutory language at all, the court took the extra step of turning to “canons,” which it defined as “general background principles that courts have developed over time to guide statutory interpretation.” The court noted one such canon in particular, which presumes “that general statutory language incorporates established common-law principles (like res judicata) unless ‘a statutory purpose to the contrary is evident.’” Pursuant to a lengthy, detailed analysis, the court concluded that the canon should properly be applied in removal proceedings, which renders the statute unambiguous, meaning that res judicata applies.

The Sixth Circuit next examined whether “a statutory purpose to the contrary is evident.” The Court noted that the statutory burden of proof that Congress put on DHS to prove removability by “clear and convincing evidence” “would be rendered ‘largely meaningless’ if DHS could repeatedly bring one proceeding after another until it got the result it wanted.”

The BIA had tried to support its decision below by reading into the Act a clear Congressional intent to remove noncitizens convicted of aggravated felonies and other crimes, determining that a concept such as res judicata shouldn’t apply where it would interfere with such a clear Congressional intent. The Board concluded that the purpose for res judicata, which it expressed as “the public interest in the finality of administrative judgments,” was no match for “Congress’ clear intent” to remove noncitizens convicted of crimes.

The Sixth Circuit had a wonderful reply, finding the Board’s approach “suggests courts can simply ignore the enacted text and instead replace it with an amorphous ‘purpose’ that happens to match with the outcome one party wants.” The court further pointed out the ridiculousness of the Board’s approach, as, since Congress always wants its statutes to be enforced, res judicata could always be viewed as an obstacle, and so such reading would have the effect of rendering the whole common-law presumption “meaningless.” The court wisely concluded that “statutes are motivated by many competing – and often contradictory – purposes” which “Congress addresses…by negotiating, crafting, and enacting statutory text. It is that text that controls, not a court’s after-the-fact reevaluation of the purposes behind it.”

Having ruled that res judicata could be applied, the court found that three of the four requirements for applying res judicata were met. The court concluded that both proceedings involved the same facts, as they were both based on the same Michigan conviction, and that the different basis for the aggravated felony charge lodged by DHS was not a new fact, but rather a different legal theory of a party. The court also found that there was no dispute that both proceedings involved the same parties, and that DHS could have lodged the burglary charge in the earlier proceedings. The only remaining question was whether the first proceeding concluded in a final judgment. As the court found it unclear from the record whether the termination of the initial proceedings was with or without prejudice, it remanded the record for the BIA to consider the question in the first instance.

Regardless of the outcome on remand, the decision is important, as the doctrine of res judicata will again be available (at least in the Sixth Circuit) to preclude ICE from subjecting noncitizens to multiple removal proceedings due to the Government’s lack of preparation. The decision might also signal the application of a tougher standard for determining whether Chevron deference is due to BIA precedent decisions. In a footnote, the Sixth Circuit pointed out that “many members of the Supreme Court” have questioned Chevron deference, including present Chief Justice Roberts and Justices Thomas, Gorsuch, and Kavanaugh. The Supreme Court recently granted certiorari in a case concerning the continued viability of the related concept of Auer deference, according deference to an agency’s interpretation of its own regulations.4 Let’s hope that the circuit courts will in the future be less inclined to rely on Chevron to afford the BIA a free pass, and instead be more likely to take the Board to task for its poorly-reasoned, result-driven decisionmaking.

Copyright 2018 Jeffrey S. Chase. All rights reserved.

Notes

27 I&N Dec. 178 (BIA 2017).

Matter of M-J- (unpublished decision, June 15, 2018).

See, e.g. Pereira v. Sessions, 138 S.Ct. 2105, 2121 (Kennedy, J., concurring).

4. Kisor v. Wilkie, 899 F.3d 1360 ( cert. granted (U.S. Dec. 10, 2018) (No. 18-15).

JEFF CHASE

Jeffrey and I agree that the Circuit Courts like the 6th are finally taking a long-overdue more critical approach to giving the BIA so-called “Chevron deference.” By now, the Article III Courts should be catching on that the BIA recently has been stretching statutory interpretation in any way possible to favor the DHS’s view in almost all published cases. This is even when the alternate interpretation offered by the respondent is closer to the statutory language, would be more practical, and/or would produce a more reasonable outcome. In most cases, the consequences at stake for the individual respondent are far, far greater than those at stake for the DHS.

And, the concept that clearly biased “know nothing” enforcement zealots like Sessions and Whitaker should be given any deference whatsoever in their political roles as Attorney General is beyond preposterous. The “Supremes-created” doctrine of “Chevron deference” (a/k/a “Judicial Task Avoidance”) was based largely on the assumption of both an objective deliberative administrative process and a high degree of technical expertise. Neither of these apply any more to the BIA, let alone to hacks like Sessions and Whitaker.

I believe that the time has come for the Supremes to overrule “Chevron” and resume doing their primary judicial function of interpreting the law. That, of course, would not prevent the Article III Courts from deferring on a case-by-case to particularly persuasive or well-reasoned agency decisions (so-called “Skidmore deference” which was the predecessor to Chevron) where appropriate. But, even if Chevron deference continues as a general proposition, there are compelling reasons for no longer applying it to administrative adjudications under the immigration laws.

PWS

01-03-19

NO DEFERENCE DUE! – 6th CIR. SLAMS TWO BIA PRECEDENTS – MATTER OF KEELEY, 27 I&N DEC. 27 I&N DEC. 146 (BIA 2017) & MATTER OF JASSO ARANGURE, 27 I&N DEC. 178 (BIA 2017) BITE THE DUST! — Time To Put An End To Inappropriate “Chevron Deference” For “Captive” BIA!

6th-Keeley18a0270p-06

Keeley v. Whitaker, 6th Cir., 12-17-18, Published

PANEL: GRIFFIN and DONALD, Circuit Judges; BERTELSMAN, District Judge*

*The Honorable William O. Bertelsman, Senior United States District Judge for the Eastern District of Kentucky, sitting by designation.

OPINION BY: JUDGE BERNICE BOUIE DONALD

KEYQUOTE:

This case requires us to use the tools of statutory interpretation to determine whether a conviction for rape in Ohio is an aggravated felony under the Immigration and Nationality Act (“INA”). The Fifth Circuit and the Board of Immigration Appeals (“BIA”) previously considered this question and answered it in the negative. In the case before us, though, the BIA reversed course in a published decision and found that such a conviction is an aggravated felony under the INA. On review of all the relevant materials, we disagree with the BIA. A conviction for rape in Ohio can be committed by digital penetration, whereas the aggravated felony of rape under the INA cannot. Therefore, the Ohio conviction does not categorically fit within the federal definition, and the petitioner’sconviction is not an aggravated felony. Accordingly, we REVERSE.

. . . .

In its opinion, the BIA ignored the most important guiding factor to statutory interpretation—the language of the statute—which shows that Congress did not consider rape and sexual abuse to be coextensive. When a court discerns the intent of Congress, “[o]ur analysis begins with the language of the statute.” Esquivel-Quintana, 137 S. Ct. at 1569 (emphasis added) (quoting Leocal v. Ashcroft, 543 U.S. 1, 8 (2004)). When defining what crimes constituted aggravated felonies in the INA, Congress included “rape” and “sexual abuse of a minor” separately. § 101(a)(43)(A). The only conclusion we can draw from this drafting is that Congress intended for the terms to describe different aggravated felonies.

The BIA’s approach is impermissible because it would strip meaning from the statute’s words. “Under accepted canons of statutory interpretation, we must interpret statutes as a whole,giving effect to each word and making every effort not to interpret a provision in a manner that renders other provisions of the same statute inconsistent, meaningless or superfluous.” Menuskin v. Williams, 145 F.3d 755, 768 (6th Cir. 1998) (quoting Lake Cumberland Trust, Inc. v. U.S. E.P.A., 954 F.2d 1218, 1222 (6th Cir. 1992)). To accept the BIA’s position that Congress intended for rape and sexual abuse to be synonymous would render meaningless Congress’ decision to utilize the two different terms—rape and sexual abuse—to describe two different aggravated felonies.6 Congress clearly intended to penalize a more expansive set of sex crimes

No. 17-4210 Keeley v. Whitaker Page 7

committed against minors than against adults; and to effectuate that intent, Congress used the term “rape” as to adults and “sexual abuse” as to minors. The BIA ignored the language of the statute.7 Its holding cannot stand.

The primary error the BIA committed was to place the states’ treatment of the crime above the language of the statute. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984) (holding that we must discern the intent of Congress when interpreting a federal statute).8 Even accepting as true that many of the states treated rape and sexual abuse as “interchangeable” in 1996, we cannot impute such an understanding to Congress. The language of the INA prohibits us from doing so.

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Gee, the Fifth Circuit actually told the BIA the correct answer! And, initially, the BIA got it right!

But then, perhaps in an effort to ingratiate themselves with “Gonzo Apocalypto” Sessions, their “new boss,” the BIA screwed it up by trying to expand the reach of the removal provision so that more folks could be removed in violation of law. Sounds like just the kind of scofflaw thing Ol’ Gonzo encouraged and dreamed about. Looks to me like “job security” is overruling “justice” at “Justice!”

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172209.P Jasso-6th Cir18a0272p-06

Jasso Arangure v. Whitaker, 6th Cir., 12-18-18, Published

PANEL: THAPAR, BUSH, and NALBANDIAN, Circuit Judges

OPINION BY: JUDGE THAPAR

KEY QUOTE:

Courts have always had an “emphatic[]” duty “to say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). But all too often, courts abdicate this duty by rushing to find statutes ambiguous, rather than performing a full interpretive analysis. When dealing with agencies, this abdication by ambiguity is even more tempting—and even more problematic. Because, under Chevron, ambiguity means courts get to outsource their “emphatic” duty by deferring to an agency’s interpretation. But even Chevron itself reminds courts that they must do their job before applying deference: they must first exhaust the “traditional tools” of statutory interpretation and “reject administrative constructions” that are contrary to the clear meaning of the statute. Chevron USA, Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 n.9 (1984). First and foremost, this means courts must analyze the statutory text. But when the text standing alone does not supply an answer, courts must consider canons of interpretation. Here, a canon makes the statute’s meaning clear. Thus, we reject the agency’s contrary interpretation.

. . . .

In this case, the Chevron analysis begins and ends with step one. The common-law presumption of res judicata makes the INA unambiguous. Res judicata doctrine applies in removal proceedings.

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“Preaching to the choir” here on “Chevron deference.” As my former students in RLP and ILP at Georgetown might remember, I referred to Chevron as “judicial task avoidance,” which is exactly what it is. It’s a gross violation of Marbury. Effectively, “TJ” dancing on the grave of John Marshall!

Chevron deference is particularly inappropriate in the case of the BIA, which these days functions as an enforcement appendage of the Attorney General (who, without authorization, has actually “re-assumed” many of the civil immigration enforcement functions of DHS). And, both Sessions and Whitaker have shown that if the BIA dares to render any semblance of a reasonable interpretation that might actually help a respondent in Removal Proceedings in any way it will be swiftly and mindlessly reversed.

Neither Sessions nor Whitaker had any chance of being confirmed as an Article III Judge. Indeed, Sessions was emphatically rejected for such a position by his own party because of his record of racially biased views (which he inflicted on the most vulnerable migrants during his toxic tenure as AG).

They have no business serving in a “quasi-judicial” capacity in any immigration proceeding. And, the Article III Courts have no business giving the BIA “deference” reserved for an impartial panel of subject matter experts. By no stretch of the imagination does that describe today’s “captive” BIA (which, incidentally, hasn’t had an “outside Government” appointment this century –even before Sessions, its jurisprudence had become very lopsidedly in favor of the DHS).

PWS

12-22-18

GOV WINS A “BIGGIE:” 6th Cir. Defers To BIA’s Interpretation Of “Pereira Notice” in Matter of Bermudez-Cota — Hernandez-Perez v. Whitaker!

Hernandez-Perez-6th-18a0269p-06

Hernandez-Perez v. Whitaker, 6th Cir., 12-18-18, Published

PANEL: GUY, WHITE, and STRANCH, Circuit Judges

OPINION BY: JUDGE JANE B. STRANCH

KEY QUOTE:

On the other hand, importing Pereira’s holding on the stop-time rule into the jurisdictional context would have unusually broad implications. According to the Government, “almost 100 percent” of NTAs issued during the three years preceding Pereira did not include the time and date of the proceeding. Id. at 2111.

Pereira’s emphatically “narrow” framing, id. at 2110, 2113, counsels in favor of distinguishing between the two contexts. Pereira confronted a specific question: “If the Government serves a noncitizen with a document that is labeled ‘notice to appear,’ but the document fails to specify either the time or place of the removal proceedings, does it trigger the stop-time rule?” Id. at 2110. Hernandez-Perez’s case does not present the same narrow question; no one disputes that he satisfies the ten-year requirement regardless of when the stop- time rule was triggered. We find persuasive the Board’s reasoning that, “[h]ad the Court intended to issue a holding as expansive as the one advanced . . ., presumably it would not have specifically referred to the question before it as being ‘narrow.’” Bermudez-Cota, 27 I. & N. Dec. at 443.

No. 18-3137 Hernandez-Perez v. Whitaker Page 10

Other components of Pereira counsel against applying its NTA rule in the context of jurisdiction. Like the BIA, we find it significant that, in Pereira, “the Court did not purport to invalidate the alien’s underlying removal proceedings or suggest that proceedings should be terminated.” Id.; see also Gonzalez v. Thaler, 565 U.S. 134, 141 (2012) (requiring courts to examine their own jurisdiction even if the parties “have disclaimed or have not presented” theissue). If Pereira’s holding applied to jurisdiction, there also would not have been jurisdiction in in Pereira itself. But the Court took up, decided, and remanded Pereira without even hinting at the possibility of a jurisdictional flaw.

We agree with the Board that Pereira is an imperfect fit in the jurisdictional context and it does not mandate a different conclusion than the one already reached by this court and all our sister circuits. See Herrera-Orozco, 603 F. App’x at 473–74 (collecting cases). We therefore conclude that jurisdiction vests with the immigration court where, as here, the mandatory information about the time of the hearing, see 8 U.S.C. § 1229(a), is provided in a Notice of Hearing issued after the NTA.

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

Points of interest;

The 6th Circuit is the first circuit to rule on Bermudez-Cota;
The court noted that approximately 100% of the cases commenced by ICE over the past three years did not contain the specific notice of date. time and place of hearing set forth in the statute;
Even assuming that Bermudez is upheld, the way in which cases have been processed by DHS and EOIR has made tens of thousands, perhaps hundreds of thousands of individuals eligible for “Cancellation of Removal;”
What does this say about the management competency of both agencies?
Contrary to the drift of the BIA and the 6th Circuit, initial proper notice of time, place, and date of hearing is critically important;
- Whereas “Notices to Appear” are sometimes served in person, the subsequent “Notice of Hearing” by EOIR never is — this significantly increases the chances for improper “in absentia” hearings based on faulty notice from EOIR;
- Most notices in Immigration Court are served manually by regular U.S. Mail, an incredibly error-fraught process given the state of disorder in the Immigration Courts (which has been mindlessly ramped up under Sessions’s gross mismanagement);
- Thus, failing to provide accurate initial notice actually greatly increases the chances of improper in absentia orders and actual removals if an individual is picked up and can’t figure out how to file a “Motion to Reopen and Rescind” the in absentia order;
- Would you be able to do that?” Would most Article III judges (particularly if operating in a different language, from ICE Detention, with no lawyer)?
Although “winning” on the “big issue,” the DHS actually lost this case; it was remanded because the BIA screwed up in denying the respondent’s Motion to Reopen;
As one of my former colleagues pointed out to me recently, if the BIA is wrong in Bermudez-Cota, it could potentially invalidate not only almost every removal order and pending removal proceeding, but most affirmative grants of relief by Immigration Judges;
- So, maybe this is a case where the practical consequences will shape the legal interpretation;
- But, then, there’s always the issue of retroactivity — could an invalidation of Bermudez be applied “prospectively only” to new and pending proceedings or in some other manner that did not disrupt “settled expectations;”
Historical Trivia: I wrote Matter of L-O-G-, 21 I. & N. Dec. 413, 413 (B.I.A. 1996) (en banc) which was extensively discussed by the 6th Circuit.

PWS

12-18-18

BIA SCREWS YET ANOTHER ASYLUM SEEKER, SAYS 6TH CIR. – Fails To Follow Own Precedent Limiting Discretionary Asylum Denials to “Egregious Adverse Circumstances” — Plus Additional Errors – Husam F. v. Sessions

Hussam,6th18a0154p-06

Hussam F. v. Sessions, 6th Cir., July 27, 2018, published

PANEL: GILMAN, ROGERS, and STRANCH, Circuit Judges.

OPINION: Per Curiam

CONCURRING & DISSENTING OPINION: JUDGE RODGERS

KEY QUOTE FROM MAJORITY:

PER CURIAM. Four years ago, Petitioner came to the United States on a K-1 fiancé visa, using a Syrian passport. Although he was a Syrian citizen, his family had fled Syria decades ago to escape persecution. Petitioner therefore had difficulty obtaining a passport from a Syrian consulate in the usual manner, and he instead relied on his father to get a passport for him through unknown contacts in Syria. As it would turn out, however, this was a mistake. The passport was not legitimate; it had been stolen from the Syrian government while blank, andPetitioner’s biographical information was later inscribed without official approval.

When U.S. immigration officials learned of this, they initiated removal proceedings. An immigration judge (“IJ”) concluded that Petitioner was removable, but granted withholding of removal and asylum based on the risk of religious persecution that Petitioner would face if removed to Syria. The IJ also granted him a waiver of removal under 8 U.S.C. § 1227(a)(1)(H),a statute that, if certain eligibility requirements are met, permits waiver of an alien’sinadmissibility due to fraud or misrepresentation. The Government appealed, however, and the Board of Immigration Appeals (“BIA” or “Board”) reversed in part. The Board affirmed the grant of withholding, but concluded that Petitioner was not entitled to asylum or to the § 1227(a)(1)(H) waiver. The Board reasoned that he was statutorily ineligible for asylum, and that he did not deserve that form of relief as a matter of the Board’s discretion because heintentionally failed to tell immigration officials about the non-traditional manner in which his passport had been obtained. The Board also concluded that, with respect to the waiver, Petitioner neither met the statutory eligibility requirements nor merited the waiver as a matter ofthe Board’s discretion.

Petitioner now seeks review of the BIA’s decision. As explained below, the Board’sdiscretionary denial of asylum amounted to an abuse of discretion because the Board unreasonably applied its own binding precedent. That precedent dictates that asylum may not be denied solely due to violations of proper immigration procedures, and also that the danger of persecution—which all agree exists in this case—should outweigh all but the most egregious countervailing factors. As for the waiver, by statute courts are generally deprived of jurisdiction to review discretionary determinations such as the denial of a waiver under § 1227(a)(1)(H). This jurisdictional limitation does not apply here, however, because the BIA engaged in de novo review of the IJ’s factual findings, in violation of its regulatory obligation to review those findings only for clear error.

KEY QUOTE FROM DISSENT:

ROGERS, Circuit Judge, concurring in part and dissenting in part. I join parts I, II.A,and II.B of the court’s opinion, but I respectfully dissent with respect to Parts II.C and II.D.

We have no business exercising jurisdiction to review the discretionary aspect of theBIA’s denial of the §1227(a)(1)(H) waiver, where Congress has clearly denied us such jurisdiction. See 8 U.S.C. § 1252(a)(2)(B)(ii). In particular, Congress has flatly denied usjurisdiction to review the BIA’s denial, in its discretion, of a waiver under § 1227(a)(1)(H), except for constitutional claims and questions of law. See id. § 1252(a)(2)(D). Calling theBIA’s fact-bound exercise of statutory discretion a legal issue makes the question-of-law exception swallow the rule and amounts to an unwarranted grab of decisional authority. The legal question in this case, according to Petitioner, is whether the Board complied with its regulatory obligation to review the IJ’s fact-finding for clear error. Only in the most technical sense can this be called a question of law. The same technical sense would make a legal issue of virtually any issue on judicial review of agency action, and thereby effectively nullify in its entirety the preclusion of judicial review that Congress enacted.

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

In my experience, it is rather unusual to see an unsigned majority “per curiam” decision in a published case of this length and complexity, particularly one in which there is a dissent.

I wrote Matter of Kasinga, 21 I&N Dec. 357, 367 (BIA 1996), one of the precedents that the BIA ignored. Although Kasinga is best-known for being the first precedent recognizing “female genital mutilation” (“FGM”) as persecution for asylum purposes, the discretionary point was also quite important. I actually cited it frequently during my years as an Immigration Judge.

Not only did the BIA make numerous legal errors in reversing the ImmigrationJudge’s asylum grant, but the outcome makes no sense from a policy standpoint. The BIA agreed that the respondent was entitled to “withholding of removal” based on a clear probability of persecution. In practical terms, that means he will remain in the U.s. indefinitely, probably for life. But, by denying him asylum, the BIA prevents him from ever qualifying to regularize his status and become a full member of our society. Makes no sense.

To return to one of my recurring themes, I invite everyone to look at the complexity of this case and the effort it took counsel to prepare, including presentation of expert testimony. Even after prevailing before the Immigration Judge, counsel had to defend the victory against a BIA that refused to follow its own precedent favorable to asylum seekers. So, counsel had to appeal to a third level, the Article III Court.

No unrepresented respondent would have any chance of receiving a fair hearing and prevailing on a case of this type. The idea that forcing respondents to proceed in asylum cases without counsel comports with Due Process is little short of preposterous. And a system where the appellate authority, the BIA, can’t be relied upon to give respondents the benefit of its own favorable asylum precedents is certainly badly broken.

We need an independent Article I Immigration Court now! That would be the beginning, but certainly not the end, of fixing a broken system and restoring Due Process and fundamental fairness to immigration adjudications.

PWS

07-28-18

FORMER GOVERNMENT IMMIGRATION EXECUTIVES (INCLUDING ME) FILE AMICUS BRIEF IN HAMAMA V. HOMAN IN 6TH CIRCUIT (“The Iraqi Christian Case”)

Here’s a copy of the brief prepared by Michael P. Doss, Esquire, of Sidley & Austin, Chicago IL:

Filed stamped copy of amicus brief

HERE’S THE INTRODUCTION SETTING FORTH “THE PLAYERS:”

IDENTITY AND INTEREST OF AMICI CURIAE

Amici have served in the U.S. Department of Justice and senior positions in the federal agencies charged with enforcement of U.S. immigration laws, and in those capacities have played substantial roles in the development, implementation, and adjudication of federal immigration policy and laws. Amici thus have an interest in this case, and in the just and efficient operation of the U.S. immigration enforcement system.

Mónica Ramírez Almadani served in the U.S. Department of Justice as Counsel to the Assistant Attorney General for the Civil Rights Division from 2009 to 2012, and as Deputy Chief of Staff and Senior Counsel to the Deputy Attorney General from 2011 to 2012, during which time she, among other things, advised on immigration

1 Amici submit this brief pursuant to Federal Rule of Appellate Procedure 29(a)(2). The parties have consented to the filing of this brief. Amici further state, pursuant to Federal Rule of Appellate Procedure 29(a)(4)(E), that no counsel for a party authored this brief in whole or in part, and no person other than the amicus curiae or their counsel made a monetary contribution intended to fund the preparation or submission of this brief.

1

Case: 17-2171 Document: 43 Filed: 02/12/2018 Page: 6

policy and litigation and worked closely with the Executive Office of Immigration Review.

Seth Grossman served as Chief of Staff to the General Counsel of the U.S. Department of Homeland Security (“DHS”) from 2010 to 2011, as Deputy General Counsel of DHS from 2011 to 2013, and as Counselor to the Secretary of Homeland Security in 2013.

Stephen Legomsky served as Chief Counsel of U.S. Citizenship and Immigration Services from 2011 to 2013, and as Senior Counselor to the Secretary of Homeland Security in 2015.

Leon Rodriguez served as Director of U.S. Citizenship and Immigration Services from 2013 to 2017.

John Sandweg served as the Acting Director of U.S. Immigration and Customs Enforcement (“ICE”) in 2013 and 2014, and as the Acting General Counsel of DHS from 2012 to 2013.

Paul Wickham Schmidt served as an Immigration Judge for the U.S. Immigration Court from May 2003 until his retirement from the bench in June 2016. Before his Immigration Judge appointment, Judge Schmidt served as a Board Member and Board Chairman for the Board

of Immigration Appeals, Executive Office for Immigration Review, from 2

Case: 17-2171 Document: 43 Filed: 02/12/2018 Page: 7

1995 until 2003. Judge Schmidt also served as acting General Counsel of the former Immigration and Naturalization Service (INS) from 1979 to 1981 and again from 1986 to 1987, and as the Deputy General Counsel of INS from 1978 to 1987.

As former leaders of the nation’s primary immigration agencies and the U.S. Department of Justice, and a former longtime Immigration Judge, amici are familiar with the operation of the United States immigration enforcement system. Amici support the district court’s preliminary injunction order and urge this Court to affirm that decision. Amici focus here on two issues before this Court: (i) first, whether the “motion to reopen” process currently available before our immigration courts provides Petitioners with an “adequate and effective” substitute for habeas relief; and (ii) second, whether the public interest is served by briefly staying enforcement of removal orders regarding these Iraqi nationals so that the immigration courts have a fair opportunity to review their claims.

3

Case: 17-2171 Document: 43 Filed: 02/12/2018 Page: 8

Based on our experience helping to lead the federal agencies charged with enforcement of U.S. immigration laws, we are compelled to conclude that the district court reached the correct conclusion on both these issues. In particular, without the “breathing room” provided by the district court’s temporary stay of removal, our overburdened immigration courts are unable to provide an adequate and effective remedy for Petitioners having valid claims for protection from removal due to the likelihood they face persecution or torture on return to Iraq. In addition, given the clearly established changed circumstances in Iraq, which show that the Petitioners would have an objective well- founded fear of persecution if forced to return, the district court’s order furthers the public interest by affording aliens threatened with persecution on removal to Iraq a meaningful opportunity to have these claims heard. The some-1,400 Iraqi nationals impacted by the district court’s order represent a drop in the bucket compared to those subject to removal each year by immigration authorities, and a temporary stay of their removal to allow immigration courts time to assess their claims will not undermine the United States’ immigration enforcement system.

\

AND, HERE’S AN OUTLINE OF THE ARGUMENT:

ARGUMENT ……………………………………………………………………………….. 5

I. The District Court Was Correct In Finding That, Under Current Circumstances, The Immigration Courts Do Not Provide Petitioners with Adequate and Effective Alternatives To Habeas Relief…………………….5

A. The Immigration Courts System ……………………….. 5

B. Our Immigration Courts Are Overburdened and Underfunded………………………………………………………. 6

C. Emergency Stay Motions before Our Immigration Courts Do Not Currently Offer Petitioners an Adequate and Effective Alternative Remedy …..10

II. Allowing Petitioners Time to Obtain Review of Their Motions To Reopen Is In the Public Interest and Will Not Unreasonably Interfere with Immigration Enforcement ……………………………………………………………..15

A. The United States has a Strong Interest In Protecting from Removal Those Petitioners Who Will Face Persecution or Torture in Iraq…………15

B. The District Court’s Order Will Not Interfere With the United States’ Immigration Enforcement Scheme………………………………………..18

CONCLUSION…………………………………………………………………………… 21

CERTIFICATE OF COMPLIANCE…………………………………………….23

CERTIFICATE OF SERVICE…………………………………………………….24

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

Many thanks to my “Fellow Amici” and to Michael Doss & his team at Sidley & Austin for a “Super Outstanding Job!” May Due Process prevail!!!!

PWS

02-14-18

Congrats to all involves, and Due Process Forever!

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