"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt and Dr. Alicia Triche, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
NDPA “Four Star General” ⭐️⭐️⭐️⭐️ Charles Kuck reports:
My partner Danielle Claffey won yet ANOTHER Russian Asylum case the belly of the beast Atlanta Immigration Court.THIS is why lawyers are essential in asylum cases!
Danielle says:
Earlier this week, I had the great fortune of securing asylee status for a young Muslim girl from Russia, before an Atlanta immigration judge. Though she is young and was so quiet for the last year I was handling her case, in court, she was strong, confident, and provided vivid detail of what she went through for the entire 19 years of her life in Russia before fleeing for America. After the judge formally granted her asylee status, and the government waived appeal, the judge told her she was sorry for everything she went through in her home country. When the judge granted her case, and the interpreter translated the judge’s words, it was the first time I saw my client smile, followed by a big deep breath. She has carried a lot in her 21 years, but can now rest easy and pursue all of her dreams here in the U.S.
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Danielle M. Claffey, Esquire Partner Kuck Baxter LLC Atlanta, GA PHOTO: Kuck Baxter
Many congrats, Danielle, and thanks so much for sharing! With great representation, anything is possible, even in Atlanta!
THIS is actually the way Immigration Court could and should work on a regular basis from all involved! Teamwork for justice! Note that:
No appeal;
No petition for review;
No remand;
No “aimless docket reshuffling;”
No need to keep renewing work authorization;
Respondent feels welcomed and understood by U.S. justice system;
Respondent leaves courtroom on the way to a green card, eventual U.S. citizenship, and can fulfill full potential in society;
Models and rewards best practices and professional cooperation (by EOIR, ICE, and the private bar) in achieving “justice with efficiency;”
As Charles says, representation is essential; you bet; so, why hasn’t Garland worked WITH the pro bono bar, NGOs, and clinical educators to facilitate representation in every asylum case? (HINT: “Aimless Docket Reshuffling” and its derivative “Expedited Dockets” — both “Garland specialties” — are major, DOJ-created, impediments to effective representation and are particularly discouraging and problematic for pro bono representatives!
“The BIA erred in affirming the IJ. The entirety of the BIA’s analysis about the motion to reopen was that Davis “has not established that evidence of his mental health issues and of his past and feared harm if returned to Liberia are new, previously unavailable, or would likely change the result in his case.” This one sentence alludes to the elements of a motion to reopen, but does not explain how they apply to Davis’s case. Neither the IJ nor the BIA met the requirements of reasoned decision-making. … Without an adequate explanation, this Court cannot conduct a meaningful review of the BIA’s September 30, 2022 order. … This Court grants Davis’s petition for review in case no. 22-3262, denies the petition for review in case no. 23-1229, and remands for further proceedings consistent with this opinion.”
[Hats off to Colleen Mary Cowgill, Joseph N. Glynn, Elaine Janet Goldenberg, Keren Hart Zwick, Zachary Scott Buckheit, Golnaz Fakhimi, David R. Fine, Kira Michele Geary, Haarika R. Reddy, Cynthia Louise Rice and Kate Thorstad!]
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Congrats to the NDPA team from Immigration and Disability Law Scholars.
But, this is an example of how Merrick Garland’s DOJ is failing the basics of American justice! Note that:
Two levels of EOIR flunk “Judging 101” — badly;
Inappropriate “defense of the indefensible” (and easily correctable) by Garland’s DOJ (OIL) asserting semi-frivolous jurisdictional argument;
Wastes Court of Appeals time on something Garland could and should have corrected and prevented from reoccurring;
Failure to follow Circuit precedent by both EOIR and OIL;
Failure to apply established standards;
Likely use of mindless “any reason to deny boilerplate” at EOIR;
Generates needless motion to reconsider;
After four years, two IJ hearings, two administrative appeals, a motion to reopen, a motion to reconsider, a trip to the Court of Appeals, case remains unresolved;
Competent EOIR Judges could have reopened the case and ruled on the merits in less time and using fewer resources than trying to mindlessly avoid providing the respondent with a reasoned decision;
In a system with three million pending cases these types of easily avoidable, sophomoric mistakes from supposedly “expert” judges are repeated over and over again— not always caught and corrected — leading to denials of due process and fundamental fairness and promoting backlog-building “aimless docket reshuffling!”
What if the the wonderful team at “Immigraton and Disability Law Scholars” could devote 100% of their time to representing vulnerable individuals at merits hearings in Immigration Court rather than having to correct avoidable mistakes by EOIR and OIL?
After three years in charge of EOIR, why hasn’t Merrick Garland, a former Court of Appeals Judge nominated to the Supremes:
Cleaned house at EOIR;
Brought in new, expert, dynamic, due-process-focused leadership;
Institutionalized best practices (see example 1 above);
Attacked system-wide anti-immigrant culture, lack of quality control, and unprofessional decision-making that continues to plague this critical “retail level” of American justice (see example 2 above);
Fixed OIL so that it will stop undermining justice in America by raising specious arguments and defending indefensible EOIR mistakes in the Article III Courts?
Merrick Garland’s “Alfred E. Neumann Approach” at EOIR: Indolent, inappropriate, ineffective! PHOTO: Wikipedia Commons
It’s not rocket science; it doesn’t require legislation (although Garland certainly should have been publicly pushing for Article I); it just takes a laser-focused commitment to due process, fundamental fairness, best practices, and efficient delivery of justice from what continues to be America’s worst “court system!”
Why that leadership and action isn’t coming from Garland is a question that everyone who cares about the future of American🇺🇸⚖️ justice should be asking every day! Fix the fixable! Model the best! That’s “Good Governing 101!”
That summer, I met Ben and Whitney Waxman, husband-and-wife co-founders of American Roots, who had been making all-U.S.-sourced clothing like hoodies and quarter-zips in Westbrook, just outside of Portland, Maine, since 2015. When the country hit pause, the Waxmans worried that demand for their wares would dry up. Without revenue to pay the rent on their factory space and their workers’ salaries, they knew that they’d lose their company in a few months.
To avoid that fate, they could make things the country desperately needed: masks and face shields. So the Waxmans asked their workers if they would be willing to return if they did all they could to make the factory safe. It was a big ask — vaccines were still a year away and information about how the virus spread was limited. In spite of the risks, every single employee said yes, energized by the idea that they could make a real difference at a moment of crisis.
The Waxmans shut down their factory to retool it for safe mask production. By that summer, they nearly quintupled their staff from 30 to 140-plus workers who were cranking out tens of thousands of American Roots’ custom-designed face masks for emergency workers and employees across the country.
Ben and Whitney had founded their company with a mission: to prove that capitalism and labor can work together to create community, good jobs and great products. They chose apparel making because it was fairly easy to get into and all components could be sourced domestically. All they needed was a few sewing machines and an army of workers willing to show up day after day. For these reasons, apparel manufacturing was one of the first industries to get offshored when tariffs were dropped following the signing of NAFTA in 1992. As a Maine native, Ben believed he was bringing back that lost industry — the state had once been a textile powerhouse — and through his mother, who had founded a locally sourced blanket and cape business, he had connections to get them started.
. . . .
I spent time on the shop floor and in the homes of their dedicated workers, many of whom are new Americans, who, with their families, had fled untenable, dangerous situations in the Democratic Republic of Congo, Iraq, Angola and other countries, and had found themselves in Maine, eager to build new lives there.
While I was learning about the ups and downs of the textile and apparel industry, I was also introduced to labor history. Ben Waxman had spent a decade at the A.F.L.-C.I.O., the largest federation of unions in the country, representing 12.5 million workers, working closely with President Richard Trumka. During that time, he witnessed the impact of offshoring with his own eyes, standing shoulder to shoulder with factory men and women as their livelihoods were shipped abroad and their pensions dwindled.
Haunted by what Ben had seen, he and Whitney made sure their employees were unionized from the get-go, that their workers earned a living wage, and received health insurance, vacation time, and sick leave to care for themselves and their families. “Our company’s economic philosophy is ‘Profit over greed,’ ” he told me. “We have to make a profit, but it will never be at the expense of our workers, our values or our products.” In that way, the Waxmans were well positioned to attract and retain a work force in a tight labor market.
. . . .
But what do manufacturers really need to build a resilient domestic supply chain? Topping their wish list is universal health care, which would unburden small manufacturers of approximately $17,000 per worker with a family per year, allowing American companies to compete with foreign producers, especially the technologically advanced European factories which are attracting high-end brands looking to make quality products closer to home.
But we also need to talk about formulating a new industrial policy, just as Alexander Hamilton and George Washington did at the moment of the country’s founding. A manufacturing-first agenda, one not just focused on green energy production and chip manufacturing, would funnel government resources toward policies that manufacturers need to remain robust. That includes job-training programs, transportation infrastructure, research and development funding, sectorwide coordination and financing support in every industry. The policy would also take a hard look at tariffs and intellectual property laws to protect American innovation, and encompass broad, clear guidelines for collective bargaining and environmental standards.
Shifting this country back to making things requires cleareyed policy that would stimulate all kinds of production that would, in turn, lift up those abandoned by the new tech and service economy. But there are so many additional benefits. Manufacturing jobs pay better than average and require less education for entry than many other industries. Apprentices learn their craft by doing. Manufacturing also offers diverse opportunities for people who aren’t so inclined to sit in front of a computer eight hours a day. We’ll need programmers, machinists, inspectors, thinkers, inventors, tinkerers: people who enjoy building things and working closely with machines that move and learn.
. . . .
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Read Rachel’s full article at the link.
These are the things that “smart government” should be investing in for our future. Instead, politicos, including some so-called “fiscal conservatives,” are proposing outrageously expensive, cruel, counterproductive immigration enforcement gimmicks supposedly designed to discourage the very workers, innovators, entrepreneurs, and investors that American manufacturing needs, not to mention reducing the potential pool of eventual U.S. consumers.
Repealing or undermining “Obamacare” — as many in the GOP advocate — is pure idiocy! Exactly the WRONG direction for America!
Sound like disconnects? That’s because they are! Ones that responsible voters should no longer put up with!
The GOP’s racist rants about asylum seekers, and the failure of some Dem politicos to push back hard, is bad for America. They fly in the face of two truths: 1) American benefits from immigration, and 2) many of the immigrants we need are already here or at our borders. Instead of thinking of ways to screen and welcome them, we are wasting money and resources trying to deport them, deny or delay their legal work authorization, and discourage them from coming.
A recent report by Don Lee in the LA Times put it very succinctly:
And that resurgence of immigration has not only given the U.S. a modest gain in total population but also done something far more vital for the economy: It has fueled the nation’s workforce in the last year.
“In sum, the BIA erred in finding that Chicas-Machado was not a refugee under the INA due to a lack of nexus to a protected ground, religion. Chicas-Machado demonstrated past persecution on account of religion, and is therefore entitled to the presumption of a well-founded fear of future persecution. See Qiao Hua Li, 405 F.3d at 176-77. Recognizing the BIA’s error, we grant the petition for review and remand the case for further proceedings. Upon remand, the BIA must determine whether the Government can rebut the presumption of a well-founded fear of future persecution. 8 If the BIA concludes that Chicas-Machado is eligible for asylum on remand, it should reconsider her withholding of removal claim. See Sorto-Guzman, 42 F.4th at 450. We decline to reach all other issues raised on appeal as to her asylum and withholding of removal claims, and direct the BIA to reevaluate those claims following its reconsideration of Chicas-Machado’s asylum application. See Arita-Deras v. Wilkinson, 990 F.3d 350, 361 n.10 (4th Cir. 2021) (declining to reach the merits of withholding of removal appeal after finding error in the BIA’s asylum analysis).”
“This petition raises important questions about proper notice in removal proceedings. Federal immigration law mandates that the government provide a noncitizen with a written notice to appear that contains certain critical details about her removal hearing, including the “time and place” of the proceedings. In a pair of recent decisions, the Supreme Court has clarified that the notice to appear must be a single document containing all statutorily required information. See Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021); Pereira v. Sessions, 138 S. Ct. 2105 (2018). Petitioners Azucena Aracely Lazo-Gavidia and her minor son were ordered removed in absentia. The immigration judge denied their motion to reopen the removal proceedings and the Board of Immigration Appeals dismissed their appeal. Because Lazo-Gavidia and her son received defective notices to appear, we grant their petition, vacate the Board’s order dismissing their appeal, and remand for further proceedings.”
[Hats off to Glenn Fogle! Listen to the oral argument here.]
“Because an offender can be convicted under Nebraska’s shoplifting statute when he acts with an intent not encompassed by a generic theft offense, we hold that the statute sweeps more broadly than the generic federal offense. Accordingly, the BIA erred in finding that Thok was removable for having committed a theft offense—and, thus, an aggravated felony—based upon his Nebraska shoplifting convictions. … For the foregoing reasons, we grant the petition for review, vacate the BIA’s order, and remand the matter to the BIA for further proceedings consistent with this decision.”
“Mercy Naah, a native of Cameroon, was charged as removable from the United States. She applied for asylum, withholding of removal, and protection under the Convention Against Torture. Naah demonstrated that she is unable or unwilling to return to Cameroon because of past persecution on account of her political opinion. Accordingly, we grant her petition for review as to her asylum and withholding of removal claims and remand for proceedings consistent with this opinion.”
Hon. “Sir Jeffrey” Chase reports for the Round Table 🛡️⚔️:
5. Experts
Unpublished 1st Cir. Victory [Experts]
[T]o keep it brief, we were on the winning side in an unpublished 1st Cir. decision issued today in which the IJ and BIA wrongly gave little weight to an country expert’s opinion on the risk petitioner faced in a CAT case. Decision attached. The Round Table filed an amicus brief in this one. Another great win for SangYeob Kim, Gilles Bissonnette and the ACLU of New Hampshire!
More to follow. We continue to make a difference!
Best, Jeff
I have just learned that counsel is filing a motion to publish. There is good language regarding the evidentiary weight of one qualified as an expert who testifies credibly. The decision points out that an expert need not have personal knowledge of the facts underlying their opinion, as long as such opinion is based on sufficient facts or data;” that “An expert cannot be “undermined by his reliance on facts . . . that have not been disputed;” and that where an IJ makes factual findings not consistent with the expert’s opinion, it is important for the IJ to explain the reasons behind those findings.
Why do Dems routinely shoot themselves in the foot on immigration while driving a wedge between Dems in power and the immigration/social justice advocates who helped them get there?
In each of the 4th Circuit cases here, our Dem AG aligned himself with restrictionist positions advocated by dissenting Bush II and Trump appointees, while eschewing the far better-reasoned, more practical approaches advocated by expert advocates and adopted by the jurists in the majority who are committed to due process.
As the 4th Circuit majority in Chicas-Machado cogently points out, the BIA’s “excessively narrow reading” of nexus conflicts with both the statutory language and practical considerations regarding the motivation of persecutors (not to mention riding roughshod over existing, binding Circuit precedent). The BIA has a long and troubling history of ignoring “mixed motive” to deny asylum.
Yet, instead of improving under Dems, the BIA’s abuse of nexus to wrongfully disqualify qualified refugees from protection has continued to metastasize under Garland! It’s all part of the anti-immigrant, “any reason to deny” culture at EOIR, promoted by Sessions and Barr and not effectively addressed by Garland.
Happy to see another Round Table victory on use of experts. But, the 1st Circuit should have published this instructive decision. Hopefully, they now will!
As we know, the BIA’s systemic mishandling of experts is a chronic problem, particularly as the BIA intentionally overcomplicates the law, as a “deterrent,” so experts are almost a requirement for success. (Even though it is well-known that many asylum applicants have difficulty just getting competent pro bono lawyers to represent them, let alone the services of “pro bono experts.”). Every example helps expose the BIA’s professional misconduct, for which Garland and his DOJ leadership have shown an unusual and disturbing tolerance.
If you don’t bring an expert, they deny for failure to sustain your B/P! If you do bring an expert, they minimize, misconstrue, or ignore their testimony!
“Catch 22” — the applicant loses either way!
Experts are also important because it’s an area where the Article IIIs’ experience with experts in civil litigation far exceeds the BIA’s. Therefore, they are apt to recognize the BIA’s sharp divergence from the weight and respect ordinarily given to experts in civil litigation. Hence, we have had substantial success with the Circuits in challenging the BIA’s continuing, inappropriately dismissive, treatment of experts.
The BIA routinely uses sloppy, often internally inconsistent, “boilerplate” in their decisions. Yet, they somehow find time to “nitpick” expert testimony looking for every minor or insignificant “omission” or “discrepancy” to discredit the expert! What a disgrace!
Finally, on Naah v. Garland, a special “shout out” to long-time NDPA stalwart and role model Danielle Beach-Oswald on her victory in a Cameroonian political persecution case in the 5th Circuit. As the decision reflects, asylum victories on non-procedural issues are hard to come by in the 5th. Danielle was a “Legacy Arlington Immigration Court regular” during my time on the bench. This just further cements her status as “one of the best in the business!”
Congrats, Danielle, and thanks for all you do!
Think how much better this system would function with a BIA of real subject-matter experts focused on due process and fundamental fairness — rather than helping out their “partners” at DHS enforcement and protecting their careers in the process! And, what if we also had a Dem AG focused on due process for immigrants in “his” courts, rather than being asleep at the switch and complicit in some of the worst, anti immigrant, biased, backlog building “jurisprudence” rolled out by the Federal “justice” system!
What if once in office, Dems actually courageously stood up for the immigrants, advocates, and values they claim to represent during elections?
Lindsay Toczylowski Executive Director, Immigrant Defenders “ I always tell the new immigration attorneys at Immigrant Defenders Law Center to never forget just how stacked against our clients the odds are in immigration court.“
Lindsay Toczylowski
• 1st
Executive Director at Immigrant Defenders Law Center
13h • Edited •
13 hours ago
This is an idea that Yliana Johansen-Méndez and I have been talking about for a long time and I am so excited to see it come to fruition at Immigrant Defenders Law Center. We need more Spanish speaking attorneys ready to fight for our communities, and there simply are not enough to fill the need that exists currently. So, let’s change that.
That was the simple idea behind the ImmDef Spanish Immersion Project for Lawyers. Give people an opportunity to become the lawyers we need. Please share widely and encourage those interested to apply quickly – we anticipate this inaugural class will fill quickly! #jobposting#immigrationlaw#socialjustice#SpanishForLawyers
Here’s the link for more information about this innovative program:
Compare this creativity and action with the moribund bureaucracies and weak, unimaginative, timid leadership at DHS, EOIR, and DOJ. The wrong folks are running the immigration bureaucracy, and doing a really lousy job of it!
This Administration might “nominally claim” to recognize the importance of representation for asylum seekers and other immigrants and to encourage it; but, their actions tell a much different story.
The dysfunctional chaos at EOIR, culture of denial, “Aimless Docket Reshuffling” on steroids, poor personnel and staffing choices, failure to establish a constructive dialogue with NGOs and the pro bono bar, and the simply jaw-dropping, avoidable “extreme user unfriendliness of almost everything at EOIR” has been a huge “turn off” for those who might be considering taking on pro bono, or even low bono, cases. If anything, some practitioners have told me that they are cutting back on their Immigration Court work because it has become so stressful, all encompassing, and discouraging.
EOIR shouldNOT be operating in this insane manner in a Dem Administration! But, unhappy fact is that it is!
Here’s a chance to be on the front lines of the fight for democracy and social justice in America! Check out Immigrant Defenders Law Center!
Elizabeth Gibson Managing Attorney National Immigrant Justice Center Publisher of “The Gibson Report”
Weekly Briefing
This briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The contents of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.
Forbes: Evidently, USCBP is eliminating the passport entry stamp to streamline the entry process. So now, foreign nationals will only have access to the Form I-94 website as proof of their lawful immigration status.
CBS: The department confirmed the review when asked to respond to accounts from migrants who told “60 Minutes” that U.S. Customs and Border Protection (CBP) officials along the U.S.-Mexico border kept their documents, despite agency policy instructing agents to return migrants’ personal property unless they are fraudulent.
NIJC: More than 130 immigration, criminal justice, and civil rights organizations released a letter today urging the Biden administration to include immigrants in the pardon process.
Law360: More than 100 immigrant rights organizations are urging the Biden administration to fully reinstate visitation at immigration detention facilities, saying in a Thursday letter that visitation is crucial for detainees’ mental health and monitoring human rights violations.
SA Current: The ACLU is condemning the actions of U.S. Customs and Border Protection agents allegedly caught on video firing pepper balls at a group of Venezuelan migrants protesting along the banks of the Rio Grande River near El Paso.
Law360: The Second Circuit on Wednesday declined to review a decision denying an asylum application from a Honduran man and his son who claim they will be killed by gang members if they return home, finding the Board of Immigration Appeals properly reviewed the immigration judge’s decision.
Law360: The Second Circuit on Tuesday backed the U.S. Board of Immigration Appeal’s decision to apply a persecution motive standard used in asylum requests to an Ecuadorian’s withholding of removal request, saying it was reasonable for the agency to do so.
Law360: The Third Circuit on Tuesday knocked down a Guatemalan man’s asylum bid after concluding he failed to back up his fears of violence in the Central American nation based on gang recruitment efforts and his rejection of gangs due to his evangelical Christian faith.
Law360: The Eighth Circuit has upheld a Board of Immigration Appeals ruling that denied a family asylum based on alleged gang threats for lack of evidence that the government of El Salvador could not or would not protect them.
Law360: A Mexican citizen who said police and criminal gangs would torture him for being bisexual and suffering from mental illness if he is deported a third time
Law360: The Ninth Circuit on Thursday backed an order requiring U.S. Citizenship and Immigration Services to adjudicate Special Immigrant Juvenile petitions within 180 days, rejecting the government’s argument that a lower court relied on “stale evidence” and disregarded hardship considerations.
Law360: Republican state attorneys general accused the Biden administration of violating an injunction requiring it to repel migrants from the border under pandemic-era restrictions, saying a sharp drop in Haitian expulsions indicated the administration was selectively lifting the so-called Title 42 border block.
AILA: On 10/31/22, DHS began limited implementation of the DACA final rule. USCIS will continue to accept and process applications for deferred action, work authorization, and advance parole for current DACA recipients. Due to litigation, USCIS will accept but cannot process initial DACA requests.
AILA: EOIR 30-day notice and request for comments on proposed revisions to Form EOIR-42A and Form EOIR-42B. Comments are due 12/5/22. (87 FR 66326, 11/3/22)
AILA: EOIR 30-day notice-and-comment period for proposed revisions to Form EOIR-31A, which allows an organization to seek accreditation or renewal of accreditation of a non-attorney representative to appear before EOIR and/or DHS. Comments are due by 12/5/22.
You now can change your email settings or search the archives using the Google Group. If you are receiving this briefing from a third party, you can visit the Google Group and request to be added. If you receive an error, make sure you click request access.
Elizabeth Gibson (Pronouns: she/her/ella)
Managing Attorney for Capacity Building and Mentorship
National Immigrant Justice Center
A HEARTLAND ALLIANCE Program
224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org
Supposedly, the main political issues right now are the economy and inflation. But, the economy and inflation are largely determined by the Fed, markets, global conditions, weather, and a certain amount of pure luck — all things beyond the direct control of the political branches of the USG.
As mentioned by Chuck Todd on last Sunday’s NBC “Meet the Press,” many experts say that the most effective tool that the Administration and Congress have to improve the economy without triggering a recession is to increase legal immigration — sooner rather than later. But, neither party is interested. The GOP sees an anti-immigrant stance as a key to political success. And, the Dems are “actively disinterested” in the issue. So, the opportunity passes.
But, the reality is that, in the long run, no amount of shipping containers, walls, prisons, family separations, deportations, exclusions to death or despair, hate rhetoric, or restrictive legal roadblocks will halt the future flow of human migration, and not incidentally, the internal relocation in America as certain areas become “unlivable.”
According to a government report published in today’s Washington Post:
The U.S. can expect more forced migration and displacement
Already, the authors of Monday’s report said, major storms such as Hurricane Maria, as well as extended droughts that strained lives and livelihoods, have led people to leave their homes in search of more-stable places.
In the hotter world that lies ahead, they write, additional climate impacts — along with other factors such as the housing market, job trends and pandemics — are expected to increasingly influence migration patterns.
“More severe wildfires in California, sea level rise in Florida, and more frequent flooding in Texas are expected to displace millions of people, while climate-driven economic changes abroad continue to increase the rate of emigration to the United States,” the report finds.
Such shifts are inherently complicated and fraught.
Several Indigenous tribes in coastal regions, facing fast-rising seas, have already sought government help to relocate, but have struggled to do so without significant hurdles.
“Forced migrations and displacements disrupt social networks, decrease housing security, and exacerbate grief, anxiety and mental health outcomes,” the authors write.
Neither political party appears serious about addressing these migration realities — already underway. The ideas that we can wall ourselves off, invest in “sending countries,” detain, and deport our way out of migration are not “solutions.”
Failure to act boldly and expansively on legal immigration will create a huge class of exploitable, disenfranchised, extralegal residents and plenty of work for border agents, internal police, righty judges, and jailers. It will also be a huge boon to smugglers and cartels who basically will “own” the American migration franchise. But, in the long run, building a large “underground humanity” won’t be enough to offset the “downside” of lacking a robust, realistic, orderly, legal immigration process.
Eventually, those nation-states that figure out how to harness, welcome, and distribute the power of human migration will rule the future. Right now, America’s leaders, of both parties, seem wedded to a “sure to fail” approach of either opposing or ignoring the realities and unlimited potential of human migration. Too bad — for all of us!
NQRFPT = “Not Quite Ready For Prime Time” — Unfortunately, it’s a more than apt descriptor for the Biden Administration’s overall inept and tone-deaf approach to due process and immigrants’ rights in the beyond dysfunctional and unjust “Immigration Courts” under EOIR @ Garalnd’s DOJ.
Mike LaSusa Legal and Natioanl Security Reporter Law369 PHOTO: Twitter
Influx Of Solo Kids Poses Challenge For Immigration Courts
By Mike LaSusa
Law360 (March 31, 2022, 2:44 PM EDT) — Unaccompanied minors arriving in increasing numbers at the southern U.S. border are likely to face a tough time finding legal representation and navigating an overwhelmed immigration court system that has no special procedures for handling their cases.
The number of unaccompanied children encountered by U.S. Customs and Border Protection has risen sharply over the past year, to an average of more than 10,000 per month, according to CBP data. Those kids’ cases often end up in immigration court, where they are subject to the exact same treatment as adults, no matter their age.
“Nobody really thought of this when the laws were enacted,” said retired Immigration Judge Paul Wickham Schmidt, now an adjunct professor at Georgetown Law. “Everything dealing with kids is kind of an add-on,” he said, referring to special dockets for minors and other initiatives that aren’t expressly laid out in the law but have been tried in various courts over the years.
About a third of the immigration court cases started since October involve people under 18, and of those people, 40% are 4 or under, according to recent statistics from the U.S. Department of Justice’s Executive Office for Immigration Review, which operates the courts.
It’s unclear how many of those cases involve unaccompanied children and how many involve kids with adult relatives, and it’s hard to make historical comparisons because of changes in how the EOIR has tracked data on kids’ cases over the years.
But kids’ cases are indeed making up an increasing share of immigration court dockets, according to Jennifer Podkul, vice president of policy and advocacy for Kids in Need of Defense, or KIND, one of the main providers of legal services for migrant kids in the U.S.
“The cases are taking a lot longer because the backlog has increased so much,” Podkul said. Amid the crush of cases, attorneys can be hard to find.
. . . .
The immigration courts should consider “getting some real juvenile judges who actually understand asylum law and have real special training, not just a few hours of canned training, to deal with kids,” said Schmidt, the former immigration judge.
. . . .
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Those with Law360 access can read Mike’s complete article at the link.
For what seems to be the millionth time with Garland, it’s not “rocket science.”🚀 He should have brought in Jen Podkul, her “boss,” Wendy Young of KIND, or a similar qualified leader from outside Government, to kick tail, roll some heads, clean out the deadwood, and set up a “Juvenile Division” of the Immigration Court staffed with well-qualified “real” judges, experts in asylum law, SIJ status, U & T visas, PD, and due process for vulnerable populations.
Such judicial talent is out there. But, that’s the problem with Garland! The judicial and leadership talent remain largely “out there” while lesser qualified individuals continue to botch cases and screw up the justice system on a regular basis! Actions have consequences; so do inactions and failure to act decisively and courageously.
And, of course, Garland should have replaced the BIA with real judges — progressive practical scholars who wouldn’t tolerate some of the garbage inflicted on kids by the current out of control, undisciplined, “enforcement biased,” anti-immigrant EOIR system.
Instead, Garland employs Miller “restrictionist enforcement guru” Tracy Short as his “Chief Immigration Judge” and another “Miller holdover” David Wetmore as BIA Chair. No immigration expert in America would deem either of these guys capable or qualified to insure due process for kids (or, for that matter anyone else) in Immgration Court.
Yet, more than a year into the Biden Administration, there they are! It’s almost as if Stephen Miller just moved over to DOJ to join his buddy Gene Hamilton in abusing immigrants in Immigration Court. (Technically, Hamilton is gone, but it would be hard to tell from the way Garland and his equally tone-deaf lieutenants have messed up EOIR. Currently, he and Miller are officers of “America First Legal” a neo-fascist group engaged in “aiming to reinstate Trump-era policies that bar unaccompanied migrant children from entering the United States,” according to Wikipedia.)
Meanwhile, the folks with the expertise to solve problems and get the Immigration Courts back on track, like Jen & Wendy, are giving interviews and trying to fix Garland’s ungodly mess from the outside! What’s wrong with this picture? What’s wrong with this Administration?
We’re about to find out! Big time, as Garland’s broken, due-process denying “court” system continues it’s “death spiral,” ☠️ taking lots of kids and other human lives down with it!
“In sum, we conclude that the BIA abused its discretion in two respects: it departed from established policy when it failed either to apply the Sanchez Sosa factors or to remand to allow the IJ do so, and it failed to provide a rational explanation for its decision, including its treatment of this court’s binding precedent in Caballero-Martinez. … We grant the petition for review, vacate the BIA’s May 2020 order, and remand for proceedings consistent with this opinion.”
[Hats off to David L. Wilson and amici Immigrant Law Center of Minnesota, ASISTA Immigration Assistance Project and National Network To End Domestic Violence!]
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Folks, all of this nonsense, delay, needless litigation, and remarkable legal/judicial incompetence was for the “purpose” of denying a well-deserved continuance to a U visa applicant — what should have been about a 5-minute positive adjudication, at max. No wonder the Federal Courts are clogged, the EOIR backlog grows, and the system has lost all respect and credibility!
I wish that Lucas Guttentag, Lisa Monaco, Vanita Gupta, and Merrick Garland would explain to all of us what is the purpose of an “expert tribunal” that lacks expertise, fundamental legal skills, judicial independence, moral courage, and common sense, as well as the backbone to have stood up to folks like Sessions and Barr (see, e.g., the Census Bureau career civil servants for stark contrast).
EOIR needs, among other things, changes at the top, real courageous progressive leadership, and a new, well-qualified, progressive, practical, expert BIA that puts due process and fair adjudication above all else. The practical experts are out there! Lucas knows exactly who should be leaders, role models, and appellate judges at the BIA! He knows that EOIR is the one critically important Federal Judiciary that can be transformed in the short run into a progressive, due-process-focused, “model judiciary!” Every day wasted in making the necessary changes in personnel and procedures is a life-changing, life-preserving opportunity wasted!
So, what’s the delay? Why is this nonsense, injustice, and waste of resources continuing nearly seven months into the Biden Administration? What’s with the continuing, due-process-denying, corner-cutting, sophomoric “denial quotas” for EOIR “judges” that produce wasteful, unjust “garbage adjudications” like this litigation exemplifies?
Lucas Guttentag Senior Counselor to the Deputy Attorney General
It shouldn’t be this hard to get long, long overdue, well-documented, common sense, readily achievable changes at EOIR! It shouldn’t be this hard for asylum seekers and other migrants, as well as their long-suffering representatives, to get the due process and fair and impartial adjudication that is their absolute right under the Due Process Clause of the Fifth Amendment to our Constitution!
CELEBRATING WOMEN’S HISTORY MONTH WITH THE BOYS FROM THE EIGHTH CIRCUIT!
Woman Being “Tried By Ordeal” 17th Century Woodcut Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160Woman Being “Tried By Ordeal” 17th Century Woodcut Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160
PANEL: SMITH, Chief Judge, ARNOLD and STRAS, Circuit Judges.
OPINION BY: Judge Arnold
Because you have to “see it to believe it” that these three guys actually graduated from law school and got promoted to the Federal Judiciary, the opinion is set forth in full here:
United States Court of Appeals For the Eighth Circuit ___________________________
No. 20-2248 ___________________________
Yeemy Guatemala-Pineda
lllllllllllllllllllllPetitioner
v.
Merrick B. Garland, Attorney General of the United States1
lllllllllllllllllllllRespondent ____________
Petition for Review of an Order of the Board of Immigration Appeals ____________
Submitted: February 17, 2021 Filed: March 26, 2021 ____________
Before SMITH, Chief Judge, ARNOLD and STRAS, Circuit Judges. ____________
ARNOLD, Circuit Judge.
After Yeemy Guatemala-Pineda entered the United States unlawfully, she applied for asylum so she wouldn’t have to return to her home country of El Salvador.
1Merrick B. Garland is serving as Attorney General of the United States, and is substituted as respondent pursuant to Federal Rule of Appellate Procedure 43(c).
She feared that if she returned there gangs would persecute her because of her religious activities. After a winding course of immigration proceedings that began more than ten years ago, the Board of Immigration Appeals ultimately denied her request for asylum. We deny the petition for review since we think substantial evidence supports the BIA’s decision.
Guatemala-Pineda, whom we will call Pineda as her real name is Yeemy Michael Pineda, attempted to enter the United States in 2010 at age 22 but was apprehended by immigration authorities and charged with being inadmissible as an alien without proper documentation. See U.S.C. § 1182(a)(7)(A)(i)(I). She conceded that the charge was true but applied for asylum, which protects, among others, refugees present in the United States who are unable or unwilling to return to their home country because they have a well-founded fear that others will persecute them on account of their religion. See 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(A). Pineda testified before an immigration judge that she was a practicing Christian who had participated in a church project of door-to-door evangelization that specifically targeted gang members. She related that a handful of gang members had at one time “cornered” and “grabbed” her during a church function and tried to recruit her to their gang, explicitly telling her that they did not want to see her working with the church. Though they also threatened to “take [her] by force” and find her wherever she went, they did not otherwise physically harm her.
After that incident Pineda stopped attending church, opting instead to participate in religious services at other people’s homes. During one of these home services, Pineda testified, gang members appeared outside and demanded that the group stop singing. She believed they were the same gang members who had threatened her before; they specifically called her by name and said they were “coming for” her. Two weeks later, at another home gathering, gang members again appeared outside, announced they were armed, and demanded that she come outside
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or “they were going to get” her. The people inside threw themselves on the ground and waited about two hours until the gang members departed.
At that point, Pineda testified, she obtained a job selling clothes in San Salvador, which was about ninety minutes from her home. She explained that gang members did not bother or threaten her while at work, though one time she had to crouch down when she heard gunshots directed toward another person.
The immigration judge concluded that, even though Pineda had not demonstrated past persecution, she did have a well-founded fear of future persecution, and so granted her application for asylum. When the government appealed to the BIA, the BIA remanded the case to the immigration judge to consider, among other things, whether Pineda could reasonably relocate within El Salvador to avoid future persecution. On remand, Pineda testified that, if forced to return to El Salvador, she would return to her mother’s house because she had no other place to go. She noted that her entire family lives in the same city and that she could not relocate to another city as a single Christian woman. She also elaborated on her time working in San Salvador, explaining that she commuted alone and worked three to five days a week for a few months before leaving for the United States. Pineda also testified that, though she did not experience difficulties from gang members in San Salvador or while commuting, thieves did steal her paycheck three or four times and her cell phone twice, often while she was riding on a bus.
Pineda also presented testimony from an expert on Central American gangs. He testified that El Salvador is “the most violent country in the world for women” and that four things put Pineda “at not only high but very predictable risk” of harm should she return to El Salvador: her religious practices and activities, her past refusal to comply with gang demands, her flight from El Salvador to escape gang threats, and the ability of gangs to learn of her return. Further, he opined, Pineda would be at high risk anywhere in El Salvador because she is a young, single woman with no
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protective family network, making “internal relocation a very, very difficult proposition.”
The immigration judge again granted Pineda’s request for asylum, concluding that she had carried her burden to show that internal relocation was unreasonable, as “[s]he is a young single woman returning to a country the size of Massachusetts where abuse and violence against women is one of the principal human rights problems.” The judge acknowledged that Pineda had worked in San Salvador for three months without interference from gangs but pointed out that during that time she had been robbed of her paycheck or cell phone at least five times and “did not proselytize in the streets.” In sum, there were simply no other parts of the country “that are any better than the area that gave rise to [Pineda’s] original claim.” On appeal, however, the BIA pointed out that Pineda was able to avoid gang persecution while working in San Salvador. It also noted that, even though Pineda was the victim of crimes during her commute, it was unclear whether she could have avoided these and similar crimes by moving to San Salvador instead of commuting from her hometown. The BIA therefore remanded for the immigration judge “to reconsider the overall reasonableness of any relocation by the respondent throughout El Salvador.”
On remand, Pineda’s case was assigned to a different immigration judge. The new judge concluded, after receiving additional arguments from the parties and what he termed “extensive country condition evidence,” that Pineda had failed to shoulder her burden to show that she could not relocate elsewhere in El Salvador since she was able to avoid gang persecution while working in San Salvador. The BIA upheld that determination.
In her petition for review from that holding, Pineda challenges the determination that she failed to show she could not safely relocate to another part of El Salvador. We review both the BIA’s decision and the immigration judge’s decision to the extent the BIA adopted the findings or reasoning of the immigration judge. See
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Degbe v. Sessions, 899 F.3d 651, 655 (8th Cir. 2018). We will uphold the decision so long as substantial evidence supports it. See Cinto-Velasquez v. Lynch, 817 F.3d 602, 607 (8th Cir. 2016). When applying that “extremely deferential” standard, we will not reverse “unless, after having reviewed the record as a whole, we determine that it would not be possible for a reasonable fact-finder to adopt the BIA’s position.” See Eusebio v. Ashcroft, 361 F.3d 1088, 1091 (8th Cir. 2004).
Since Pineda does not contend that she has shown past persecution, she must show she has a well-founded fear of future persecution to prevail. See 8 U.S.C. § 1101(a)(42)(A); see also 8 C.F.R. § 1208.13(b). But “[a]n applicant does not have a well-founded fear of persecution if the applicant could avoid persecution by relocating to another part of the applicant’s country of nationality.” 8 C.F.R. § 1208.13(b)(2)(ii). Because Pineda has not demonstrated past persecution, and the gangs she fears are not government or government sponsored, she bears the burden to show that relocation would not be reasonable. See id. § 1208.13(b)(3)(i). In these circumstances relocation is presumed to be reasonable. See id. § 1208.13(b)(3)(iii).
We hold that substantial evidence supports the BIA’s determination that Pineda could relocate to another part of El Salvador if forced to return. We believe that a reasonable factfinder could give substantial weight to the lack of gang harassment Pineda suffered while working in San Salvador for a number of months. Even if gangs generally have significant reach throughout the country and are able to locate people like her quickly, as Pineda maintains, the fact that they did nothing to her for months as she worked in San Salvador is hard to overlook. And even though the first immigration judge to preside over Pineda’s proceedings found that internal relocation would not be reasonable, that does not necessarily mean that substantial evidence did not support the second immigration judge’s decision. It might just go to show that the reasonableness of relocation in this case is one on which reasonable people could disagree.
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To bolster her case, Pineda emphasizes that she suffered other serious harm in San Salvador when she had paychecks and cell phones stolen from her. Pineda is right that, to prevail, she need not show that she suffered other serious harm on account of a protected ground, such as religion. See Hagi-Salad v. Ashcroft, 359 F.3d 1044, 1048 n.5 (8th Cir. 2004). But that other harm must rise to “the severity of persecution” for her to carry the day. Id. “Persecution is an extreme concept,” involving things like death or the threat of death, torture, or injury to one’s person or freedom. See De Castro-Gutierrez v. Holder, 713 F.3d 375, 380 (8th Cir. 2013). Pineda did not describe anything that occurred to her during her commutes to and from San Salvador or her employment there that approaches this high standard.
We therefore conclude that substantial evidence supports the BIA’s determination, considering that Pineda worked for months in San Salvador without trouble from gangs. Though we recognize that Pineda’s expert opined that she was at risk, we think the BIA did not unreasonably focus on there being no evidence that she was persecuted during the months she worked in San Salvador. We have upheld a decision on this kind of question based on less, as, for instance, where an asylum seeker had stayed in another part of a country without being harmed for five weeks. See Molina-Cabrera v. Sessions, 905 F.3d 1103, 1106 (8th Cir. 2018).
Though we sympathize with Pineda’s subjective fear of returning alone to a different part of El Salvador, we cannot say that the BIA’s relocation determination is unsupported by substantial evidence. Because we uphold this portion of the BIA’s decision, we do not consider whether substantial evidence supported the BIA’s conclusion that the government of El Salvador was unwilling or unable to control the gangs that Pineda feared.
Petition denied.
______________________________
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No, it’s not, as Judge Arnold disingenuously claims “something on which reasonable people could disagree.” No reasonable adjudicator qualified in asylum law and due process could reach this ridiculously wrong result!
Naturally, not understanding asylum law (why would that be a requirement for an Article III Judge, just because it’s probably the #1 and certainly most hotly contested topic in Federal Civil Litigation these days), Judge Arnold and his “boys club” out on the Great Plains fail to give this credible respondent “the benefit of the doubt” to which she is entitled under UNHCR guidance.
Indeed, as I used to tell my former BIA colleagues, usually to little avail before launching another dissent, “if reasonable people could differ, the result should be clear — the respondent wins because she gets ‘the benefit of the doubt.’” Sadly, even at a time when the BIA functioned at a much much higher level than it does today, it was the Immigration Judge and immigration enforcement who often in practice got the “benefit of the doubt” from many of my former colleagues, not the asylum applicant.
As my friend Dan Kowalski over at LexisNexis Legal Community summed up: “Proves the point that ‘the only true refugee is a dead refugee.’” Unlike the various BIA Judges and Circuit Judges involved in this deadly travesty, Dan actually understands asylum law, due process, and human values.
One might fairly ask the question of why “practical scholars” like Dan are on the “outside” and lesser talents are on the Federal Bench at all levels? The answer has much to do with why there is an “institutionalized racism crisis” in today’s American justice system. “Trial By Ordeal,” really isn’t that great a “look” for 21st Century American Justice! (Any more than is institutionalized racism and “The New Jim Crow”).
Dan Kowalski Online Editor of the LexisNexis Immigration Law Community (ILC)
Conveniently, this “gang of three” CJs showed little real understanding of 8 C.F.R. 208.13 as it existed at the time of the BIA’s second decision, which states:
adjudicators should consider, but are not limited to considering, whether the applicant would face other serious harm in the place of suggested relocation; any ongoing civil strife within the country; administrative, economic, or judicial infrastructure; geographical limitations; and social and cultural constraints, such as age, gender, health, and social and familial ties. Those factors may, or may not, be relevant, depending on all the circumstances of the case, and are not necessarily determinative of whether it would be reasonable for the applicant to relocate.
Just on the information regurgitated in their opinion, Ms. Guatemala-Pineda showed by expert witness testimony and by her own credible testimony and experiences that there is no “reasonably available relocation alternative” in El Salvador. There clearly is “ongoing civil strife” in El Salvador. And, anyone with even minimal knowledge of the country would know that (to put it charitably) the “administrative, economic, and judicial infrastructures” are somewhere in the zone between dysfunctional to non-existent. She also credibly pointed out why it would not be reasonable under the circumstances to require her to leave her mother’s home and move to San Salvador.
Forcing someone to commute to a job 90 minutes away, for 3-5 days per week work, in what is perhaps the most dangerous city in the country, during which she already suffered “three or four paycheck robberies and a cell phone robbery” in about three months — that’s a total of five robberies” in a relatively short span — is by no means a “reasonable internal relocation alternative” based on all relevant factors!
Additionally, that she felt unable to proselytize in accordance with her religious beliefs in San Salvador also indicates that relocation there is unreasonable. Freedom to carry out reasonable religious commitments without fear of harm is a fundamental human right.
Very interesting to compare how GOP Circuit Judges treated very clear interference with Ms. Guatemala-Pineda’s ability to fulfill her religious beliefs in this case with how many GOP judges in the U.S. swoon over every minor interference with right wing religious beliefs — even those grounded in obvious bigotry — in the U.S. Here, by contrast, the GOP Circuit Judges fobbed off the interference with Ms. Guatemala-Pineda’s evangelical activities — at one point she felt unable to worship publicly at her church — as of no particular concern.
Not to mention that Ms. Guatemala-Pineda’s expert confirmed that:
El Salvador is “the most violent country in the world for women” and that four things put Pineda “at not only high but very predictable risk” of harm should she return to El Salvador: her religious practices and activities, her past refusal to comply with gang demands, her flight from El Salvador to escape gang threats, and the ability of gangs to learn of her return. Further, he opined, Pineda would be at high risk anywhere in El Salvador because she is a young, single woman with no protective family network, making “internal relocation a very, very difficult proposition.”
In plain terms, it’s only a matter of time before Ms. Guatemala-Pineda is persecuted, seriously harmed, or killed if returned to El Salvador. But, her life, as a woman of color, is obviously of little concern to the “gang of three.”
Let’s look at it another her way. Suppose we were tell Judges Smith, Arnold, and Staus that they had to relocate in a way that meant every third or fourth paycheck would be stolen and that they would be robbed of their cellphone every three months, with no recourse to a functioning police system. (Note that these dudes would be much better able to absorb such losses of income and expensive property than Ms. Guatemala-Pineda.) Or, that we were going to relocate their cushy ivory tower jobs to a place where they would be required to commute 90 minutes by public transportation every day. Or, that they might occasionally have to get down behind the bench to avoid rampant gunfire. Or, that they no longer could worship at their church of choice or openly engage in religious activities in their communities, but must limit themselves to “in-home worship” — not just during the pandemic, but permanently. Or, they had to live in a place where “GOP-Judiciacide” was at the highest level in the world and the police offered little or no protection, indeed were often involved themselves in abuse and killings of judges or turned a blind eye to the perpetrators.
Think our “tone-deaf group of guys in robes” would take a different view of “reasonable” if they put themselves in Ms. Guatemala-Pineda’s place and it were happening to them? You betcha!
A few other things to note about this gross miscarriage of justice:
Two panel members were appointed by Bush II, one by Trump;
Ms. Guatemala-Pineda originally won her case before the Immigration Judge, who after hearing all the evidence and carefully considering relocation found that Ms. Pineda has shown that there was no “reasonably available relocation alternative” in El Salvador;
The BIA baselessly remanded the case on ICE’s appeal to a new IJ to get the “preferred result” — a denial of relief and potential death sentence for a woman of color (See, e.g., Jeff “Gonzo Apocalypto” Sessions & Matter of A-B-);
In a functioning system staffed by asylum experts, this case could easily have been granted at the Asylum Office rather than kicking around the dysfunctional EOIR system for a decade — two merits hearings before the IJ — two appeals to the BIA — and Circuit Court review — all to REACH A CLEARLY INCORRECT AND UNJUST RESULT THAT NO TRUE ASYLUM EXPERT I KNOW WOULD AGREE WITH!
And, we wonder why EOIR has more than doubled the number of IJs yet still almost tripled their uncontrolled backlog to a mind-boggling 1.3 million cases! Ten years to turn an easy asylum grant into a denial (yet other cases are rushed through to denial on an assembly line without any real deli]beration or analysis) might give us a hint of why the system is totally dysfunctional and completely unfair (not to mention patently unconstitutional)!
Since EOIR is known for its incompetent record keeping, I’m willing to bet that there are thousands, perhaps hundreds of thousands, of additional “lost in space” files, warehoused somewhere that are simply “off docket” and unaccounted for.
Cases like this aren’t “academic exercises” — the judicial attitude that “screams off the pages” of this gross miscarriage of justice. They have real life, potentially deadly consequences for real humans beings, the most vulnerable of human beings, like Ms. Guatemala-Pineda. She has the same right to live as do the Circuit Judges, the BIA Judges, and the second Immigration Judge who got her case wrong!
After a decade, this monstrosity is the best our “justice system” can offer? Gimme a break! I think I could choose any three students over at the CALS Asylum Clinic at Georgetown Law who would run circles around the cavalier analysis of these three supposedly “senior jurists” in this case! Cases like this basically are indictments of our Article III system, not to mention the ongoing mockery of justice at EOIR.
The anti-asylum, anti-immigrant bias, incompetent adjudication, and systemic mis-management at EOIR are of monumental proportions! The gross inconsistencies, lack of overall immigration, human rights, sensitivity to racial justice, and “practical due process” expertise at the appellate level of the U.S. Courts and particularly at the Supremes is very disturbing and threatens the very existence and legitimacy of our legal system.
Judge Garland has the power to start fixing this, today! He must vacate all the bogus Trump-era anti-immigrant precedents; toss the entire BIA, and replace them with real judges who possess the required subject matter expertise and overriding commitment to due process and fundamental fairness; establish merit-selection criteria for Immigration Judges honoring experience representing asylum applicants in court, immigration knowledge, human rights expertise, commitment to due process for individuals under law, sensitivity to racial justice, and demonstrated practical problem solving experience.
Then, apply those criteria to new Immigration Judge selections as well as to retention decisions for all current Immigration Judges. And, for Pete’s sake, “can” the incompetent bureaucracy and get some real professionals in there who can run an independent court system — starting with a functioning nationwide e-filing system and some competent judicial training as well as assisting IJs in managing their own dockets rather than constantly interfering and trying to “micromanage” from Falls Church and the 5th Floor of the DOJ (a process known as “Aimless Docket Reshuffling,” honed by the Trump kakistocracy @ DOJ).
When you’re done, Judge Garland, you’ll have: 1) many fewer bad decisions heading off the the Courts of Appeals; 2) a functioning Immigration Judiciary of experts who can help keep order and provide helpful expert guidance to the rest of the now out of control system; and 3) a great source of “battle trained and proven” well-qualified, progressive judicial talent who can change the trajectory of the now often moribund (yeah, even some of the younger Trump appointees are basically “brain dead,” so the term fits) and dilatory Article III Judiciary and who are also available to fill other high-level policy positions with competence, common sense, and humanity.
You’d also go down in history as a judge who got out of the ivory tower and actually solved pressing problems, implemented our Constitution, and built a better, fairer court system that made a difference in human lives and the future of our nation. Perhaps, even something like “thorough teamwork and innovation, built the world’s best courts guaranteeing fairness and due process for all.” That’s quite a legacy for future generations.
I can only hope Judge Garland finally pays attention to what’s happening across the river in Falls Church and takes immediate action to end the deadly and debilitating clown show 🤡🦹🏿♂️ @ EOIR. Otherwise, I fear he will find himself buried in immigration litigation and his tenure mired in the muck of responsibility for grotesque racial injustice and “running” the worst, most incompetent, unfair, and blatantly unconstitutional “court” system in America!
🇺🇸⚖️🗽🧑🏽⚖️Due Process Forever! Hey Hey, Ho Ho, The Deadly EOIR Clown Show ☠️🤡 Has Got to Go!
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept
Hey, maybe next year, we could all celebrate Women’s History Month with some decisions incorporating serious scholarship by progressive women judges that actually recognize, honor, and institutionalize relief from the unfair struggles faced by refugee women and people of color.
“Petitioner Wilber Agustin Acevedo Granados (“Acevedo”), a native of El Salvador, petitions for review of the decision by the Board of Immigration Appeals (“BIA”) affirming an order of removal and the denial by the Immigration Judge (“IJ”) of Acevedo’s application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). Acevedo’s petition is based on his fear that, if returned to El Salvador, he would face persecution or torture on account of his membership in a particular social group, defined based on his intellectual disability. The BIA rejected Acevedo’s claims on the ground that the proposed group definition was not cognizable. The BIA held that Acevedo’s proposed social group was not sufficiently particular, finding that the terms “intellectual disability” and “erratic behavior” rendered the proposed group “amorphous, overbroad, diffuse,[and]subjective.” The BIA further determined that the group was not a “meaningful social unit, distinct from the larger population of mentally ill individuals” in El Salvador. We conclude that the agency misunderstood Acevedo’s proposed social group, and thus grant the petition for review with respect to the claims for asylum and withholding of removal. The BIA and IJ treated the term “intellectual disability” as if it were applied by a layperson. Instead, that term as used in Acevedo’s application referred to an explicit medical diagnosis with several specific characteristics. Recognized that way, the clinical term “intellectual disability” may satisfy the “particularity” and “social distinction” requirements necessary to qualify for asylum and withholding of removal. However, because the IJ did not recognize the proposed social group before her, we remand to the agency for fact-finding on an open record to determine if the group is cognizable.”
[Hats off to Prof. Evangeline Abriel and her Certified Law Students Keuren A. Parra Moreno (argued) and Jared Renteria (argued)!]
2) 8th Cir. — BIA Goofs On “Aggravated Felony” Analysis
“In May 2017, an Immigration Judge (IJ) determined that Lopez-Chavez is ineligible for cancellation of removal because his 2006 federal conviction for illegal reentry in violation of 8 U.S.C. § 1326 qualifies as an aggravated felony. The Board of Immigration Appeals (BIA) affirmed the IJ’s ruling and dismissed Lopez-Chavez’s administrative appeal the following year. The question now before the court is whether Lopez-Chavez’s 2006 conviction qualifies as an aggravated felony under the INA, thus making Lopez-Chavez statutorily ineligible for cancellation of removal. We hold that it does not. … Because Lopez-Chavez’s 2003 Missouri marijuana conviction is not a categorical match for the corresponding federal offense in 8 U.S.C. § 1101(a)(43)(B), the 2006 conviction for illegal reentry under § 1326 does not qualify as an aggravated felony under § 1101(a)(43)(O). Accordingly, Lopez-Chavez is not statutorily ineligible for cancellation of removal. See 8 U.S.C. § 1229b. We grant the petition for review, vacate the BIA’s order, and remand for proceedings consistent with this opinion.”
“[T]o decide whether his 2018 conviction renders him removable, we need to determine whether we can parse MMB-Fubinaca from those other drugs; we decide that by determining whether Penalty Group 2-A is divisible. The government says it’s divisible, Alejos-Perez says not. … Because the government has not shown that the modified categorical approach is called for, we apply the categorical approach. … Because Penalty Group 2-A is not a categorical match, we must identify the appropriate result. … Once it’s clear that Penalty Group 2-A is not a categorical match to its federal counterpart, AlejosPerez “must also show a realistic probability . . . that the State would apply its statute to conduct that falls outside the generic definition of the crime” under federal law. We are unable to resolve that issue, because the BIA didn’t address it, and we can “only affirm the BIA on the basis of its stated rationale for ordering an alien removed from the United States.” … We thus remand for consideration of whether Alejos-Perez has shown a realistic probability that Texas would prosecute conduct that falls outside the relevant federal statute.”
Significantly, the 5th Circuit’s rejection of the BIA’s analysis was written by very conservative Circuit Judge Jerry Smith, a Reagan appointee. Judge Smith wrote the majority opinion upholding the legally questionable injunction against President Obama’s “DAPA Program” — something many scholars believe to have been a entirely legitimate exercise of prosecutorial discretion. (The case later was lamely affirmed w/o opinion by an evenly divided Supremes.)
Even conservative Federal Judges not known for sympathy to immigrants and their legal rights appear to have grown weary of the BIA’s consistently sloppy attempts to rule against foreign nationals, regardless of the merits. This is the second rejection by the normally reliably pro-Government 5th Circuit in the last several weeks!
Ironically, one (former) Federal Judge who appears not bothered by the BIA’s defective jurisprudence is the current Attorney General, Judge Garland. He’d better get himself a “tomato resistant”🍅 raincoat to wear at work. This is just the beginning. His reputation and credibility will diminish every day that he fails to replace the BIA with competent jurists who will give migrants the fair and impartial treatment that our Constitution demands, but the DOJ’s “captive court” constantly fails to deliver!
And, leaving aside the legal ineptitude, there can be no excuse for the stunning level of dysfunction and incompetence in how one of the nation’s largest so-called “court” systems is administered by EOIR under DOJ. No tribunal in America issues more potential “death sentences” with less due process! Not exactly what Mies Van Der Rohe had in mind when he famously said “the less is more.”
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
Poor “Belly-Up Eyore.” He was forlornly, and apparently vainly, hoping to be “put out to pasture” after Judge Garland took over the helm at DOJ. Such high expectations!
But, he is already exhausted again by all the continuing “calls to duty on Courtside” after just 22 days of Judge Garland’s “where’s Falls Church” approach to the ongoing EOIR disaster/travesty! Judge, here’s the key; just think like it wereyour children or grandchildren, actual human beings, being orbited into the abyss without much attention to the law, our Constitution, common sense, or human decency! Maybe starting each day with a briefing on each Article III case that was wrongly decided in your name by the BIA and a live reading of each outrageous media story about disorder in your Immigration Courts would help raise your consciousness? Maybe you should speak with a few of the “customers” of your “courts” that put public service last. Men, women, children, and their lawyers are being abused out there every day by EOIR and you are legally and morally responsible.
You can’t lead the fight for racial justice in America while running a bogus court system that denies and mocks it on a daily basis!
Hon. Merrick B. Garland Attorney General of The United States & Eyore’s Boss, Official White House Photo Public Realm
With respect to the new evidence that Cuesta Rojas presented to the BIA regarding corroboration, the BIA stated in summary fashion in its opinion that “the newly submitted evidence does not address or resolve the credibility concerns raised by the Immigration Judge,” and then added that it declined to “remand [the] proceedings to the Immigration Court for further consideration” of that evidence.
At oral argument before us, the government represented that, in the event we were to vacate and remand the agency’s
continue[] to be a common government method for controlling independent public expression and political activity.”
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decision even without addressing these findings regarding corroboration as such, the evidence concerning corroboration just described that the BIA appeared not to consider in depth would be treated as part of the record for the IJ to review. And we understand, in consequence, that the documents in question — which purport to corroborate two attacks that resulted in injuries to Cuesta Rojas, his political activity in Cuba, and the concern it drew from Cuban authorities — will be given such weight as it may warrant.
In light of that representation, and the fact that our ruling as to the discrepancies finding suffices to require us to vacate and remand, see Mukamusoni, 390 F.3d at 122 (explaining that it is error to treat an asylum applicant’s testimony as if it were “weaker than it actually was” and to then “demand[] a higher level of corroboration” on that mistaken basis than otherwise would be required); see also Mboowa, 795 F.3d at 229 (explaining that “[i]n the ordinary course we do not . . . attempt to read the tea leaves” in the event that a central aspect of the agency’s credibility assessment is flawed); Castañeda-Castillo v. Gonzales, 488 F.3d 17, 25-26 (1st Cir. 2007) (en banc) (similar),7 we need
Cf. also 8 C.F.R. § 1208.13(a) (“The testimony of the applicant, if credible, may be sufficient to sustain the burden of proof without corroboration.”); 8 U.S.C. § 1158(b)(1)(B)(ii) (similar).
7
– 29 –
not resolve the aspects of Cuesta Rojas’s petition for review that concern the IJ and the BIA’s corroboration findings. Rather, consistent with the government’s representation about what the record will consist of on remand, we remand those matters to be decided by the agency in a manner consistent with this opinion, and on the understanding that the new evidence that Cuesta Rojas supplied that the BIA appeared not to evaluate in depth will be given the weight that is warranted.
IV.
We grant the petition for review, vacate the decisions of the IJ and BIA denying Cuesta Rojas’s application for asylum, withholding of removal, and CAT protection, and remand for further proceedings consistent with this opinion.
2) 8th Cir. — BIA Bobbles “No Brainer” In Absentia Reopening By Ignoring Evidence!
This court concludes that the BIA abused its discretion by applying a heightened evidentiary standard and disregarding record evidence in concluding Petitioners failed to overcome the presumption of delivery of the NOH. In determining whether a noncitizen has overcome the presumption of delivery by regular mail, the agency considers (1) the noncitizen’s affidavit; (2) affidavits from family members or others with personal knowledge of whether notice was received; (3) the noncitizen’s due diligence, after learning of the in absentia order, in seeking to redress the situation; (4) prior applications for relief, demonstrating the noncitizen had an incentive to appear, and any prima facie evidence in the record or the respondent’s motion of statutory eligibility for relief; (5) previous attendance at immigration hearings, if applicable; and (6) any other evidence indicating possible nonreceipt of notice. See Diaz, 824 F.3d at 760 (citing Matter of M-R-A-, 24 I. & N. Dec. 665, 674 (BIA 2008)); see also Ghounem v. Ashcroft, 378 F.3d 740, 744-45 (8th Cir. 2004) (while a strong presumption of effective delivery is appropriate where service is made by certified mail, a weaker presumption and lesser evidentiary requirements are appropriate where service is by regular mail). Petitioners provided two affidavits, sought to redress the situation by moving to reopen proceedings shortly after the order of removal was entered, applied for relief and protection for removal, had no occasion to appear for any prior immigration hearings, and regularly
-3-
attended immigration appointments both before and after the removal order was entered. Considering this evidence, this court concludes that remand is necessary so that the agency may consider all relevant evidence Petitioners proffered—both favorable and unfavorable—under the weaker evidentiary standard applied in cases where notice has been delivered by regular mail.
The petition for review is granted, the decision of the BIA is vacated, and the case is remanded for further proceedings.
_________________
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Ah, haste makes waste. Been saying it for years! It also harms and potentially kills☠️⚰️🪦 vulnerable individuals seeking fairness and undermines the credibility of our entire justice system. Other than that, what’s the problem?
It’s really nice that the 1st and 8th Circuits cared enough and took the time to do a proper judicial analyses of these cases, to make up for the BIA’s shortcomings. But, frankly, that’s not the way the system should work!
Obviously, constant remands and “churning” of cases wrongly decided at several levels of EOIR is one of many self-created problems fueling the astounding 1.3 million case backlog. And, to state the obvious, that unnecessary backlog and the lack of effective expert judicial guidance on applying asylum law fairly and efficiently is actively hampering the Biden Administration’s efforts to re-establish the rule of law at the border after four years of unmitigated disaster and dismemberment of our asylum legal system by the defeated regime. It’s just a variation on “Aimless Docket Reshuffling” which was on steroids at EOIR under the Trump regime.
And, most respondents, particularly unrepresented ones, can’t count on this type of careful, searching analysis from Article III Circuit Courts. Unhappily, many Circuit decisions simply “paper over”EOIR’s errors by hiding behind the deferential “standard of review” as an excuse to rubber stamp the BIA without a thorough examination of the merits. For starters, this whole system of supposedly fair and impartial expert judges actually controlled by Executive Branch politicos doing the bidding of DHS Enforcement is clearly unconstitutional under Fifth Amendment due process as currently constituted and “operated” (using that term lightly) under EOIR.
As I predicted, it hasn’t taken long for Judge Garland’s name to become associated with some really bad jurisprudence and boneheaded defenses stemming from the broken DOJ. And, this is just the beginning!
Sure, most of us are going to “cut him a break” on these travesties that actually originated during the Trump regime. But, “the pipeline” and volume is such that if Judge Garland doesn’t “pull the plug” on EOIR and OIL soon, he will “own” this ongoing disparagement of American justice — lock, stock, and barrel! The chance to make a “favorable first impression” evaporates rapidly, in government as well as the private sector.
And, patience runs thin when you are being beat up and your clients treated unfairly by a “star chamber” ☠️ under the control of someone who should know better.👨🏻⚖️ Much better!
EOIR must be put out of its misery, as well as the misery and irreparable harm it causes humanity. 🏴☠️ Sooner, rather than later! Come on, Judge G — step up to the plate before it’s too late! ⚾️
Anybody remember the last time we interpreted the law or facts in favor of a human? https://www.flickr.com/photos/rasputin243/ Creative Commons License
“The question in this case is whether the categorical approach requires a petitioner seeking cancellation of removal to demonstrate both that the state offense he was convicted of is broader than the federal offense and that there is a realistic probability that the state actually prosecutes people for the conduct that makes the state offense broader than the federal offense. We conclude that it does not. … Because the BIA’s decision relied on a misinterpretation of the realistic probability inquiry, we grant the petition for review, vacate, and remand for further proceedings consistent with this opinion.”
Lastly, the government argues that we should defer to the decision by the Board of Immigration Appeals (“BIA”) in Matter of Zamora-Molina, 25 I. & N. Dec. 606, 611 (B.I.A. 2011), in which the BIA adopted the same interpretation as the Department of State. Even assuming, without deciding, that Chevron deference applies when one agency (the Department of State) seeks to rely on the interpretation of another agency (the Department of Justice), we agree with the district court and with the Ninth Circuit that Chevron deference does not apply here because “the intent of Congress is clear.” Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842 (1984); see also id. at 842–43 (“If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.”); Tovar, 882 F.3d at 900 (declining to apply Chevron deference to Zamora-Molina because “traditional tools of statutory construction” and “the irrationality of the result sought by the government” combine to “demonstrate beyond any question that Congress had a clear intent on the question at issue”). As discussed above, the text, structure, and
33
legislative history of the CSPA conclusively show the “unambiguously expressed intent of Congress” to protect beneficiaries like Diaz. Chevron, 467 U.S. at 843.7
3) Ignoring Previous Circuit Ruling On Related Case — 10th Cir.
After we determined that conditions in China had materially worsened for Christians, Mr. Ni moved again for reopening. Despite our opinion in his wife’s case, the Board of Immigration Appeals concluded
2
again that Mr. Ni had failed to show a material change in country conditions.
This conclusion is unsupportable. Mr. Ni’s evidence of worsening
conditions in China largely mirrored his wife’s evidence, which had led us
to grant her petition for review. Mr. Ni’s evidence was even stronger than
his wife’s because China had recently adopted a regulatory crackdown on
practicing Christians. We thus grant Mr. Ni’s petition for review.
“To support his case for reopening, Mr. Lucaj submitted an affidavit complaining in particular about two events that occurred after his removal proceeding in 2006: The Socialist party took power in 2013, and then in 2019 the Socialists’ corruption and connections with organized crime deterred the opposition party from even participating in the 2019 elections. Mr. Lucaj provided, among other things, the State Department’s 2018 Human Rights Report on Albania, the Freedom House “Freedom in the World 2018” Report on Albania, and articles from 2018 and 2019 about corruption in Albania and the Socialist Party’s success in recent elections. We do not know whether those submissions show materially worsening conditions for Democratic Party members in Albania, however, because the BIA refused to compare those reports to available evidence of conditions from 2006, claiming that Mr. Lucaj had not “explained how the proffered . . . country condition documentation show[s] qualitatively different conditions from 2006.” Plainly, though, he did so by pointing out the two cited, post-2006 events as evidence of changed conditions. The BIA’s failure to assess whether those changes were sufficient was arbitrary and capricious. … Therefore, we reverse the decision by the BIA and remand Mr. Lucaj’s case so that the BIA can review available evidence to examine whether conditions for members of the Democratic Party in Albania have deteriorated since 2006 and, if so, whether Mr. Lucaj has established a prima facie case for relief.”
America and humanity deserve better from a supposed “expert tribunal” which actually functions more like a “denial factory” without much, if any, “quality control.” No wonder these guys are running an out of control, ever-expanding 1.3 million case backlog!
Denying continuances, not closing cases that belong at USCIS, rushed briefing, IJ’s “certifying” BIA remands to the Director (who should have no judicial role), dismissing applications for failure to fill in irrelevant blanks, raising fees, and a host of other nonsensical proposals that EOIR has had shot down by the Article III Courts recently won’t reduce the backlogs. They actually will make it worse, as have all the other “gimmicks” tried by EOIR to eradicate due process and dehumanize migrants over the past four years!
Who ever heard of lower court judges providing “quality control” for appellate judges, working through a bureaucrat who (at the time the proposal was supposedly “finalized”) had never presided over a case in Immigration Court? And, let’s remember, these are haphazardly selected trial judges, a decidedly non-diverse, non-representative group, whose own qualifications, expertise, judicial temperament, and training have been widely criticized by experts in the field.Few of today’s Immigration Judges and BIA Judges would be “household names” among immigration, human rights, and constitutional law experts and scholars!
The current mess is largely the result of Aimless Docket Reshuffling imposed on the Immigration Courts by unqualified politicos at the DOJ and their equally unqualified toadies at EOIR HQ. Also, DHS has more often than not ignored the realities of good docket management and the prudent exercise of prosecutorial discretion. It is not the fault of the vulnerable migrants and their lawyers victimized by this absurdly politicized, biased, and mal-administered system!
Restoration of justice at EOIR will require radical due process oriented changes starting with new, professional leadership from “practical scholars” in immigration and human rights as well as replacing BIA Judges with better qualified jurists selected from the ranks of those “practical scholars.” Quality control, expertise, competence, common sense, and human understanding are all lacking at today’s EOIR!
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
No. 19–438. Argued October 14, 2020—Decided March 4, 2021
Immigration officials initiated removal proceedings against Clemente Avelino Pereida for entering and remaining in the country unlawfully, a charge Mr. Pereida did not contest. Mr. Pereida sought instead to establish his eligibility for cancellation of removal, a discretionary form of relief under the Immigration and Nationality Act (INA). 8 U. S. C. §§1229a(c)(4), 1229b(b)(1). Eligibility requires certain nonper- manent residents to prove, among other things, that they have not been convicted of specified criminal offenses. §1229b(b)(1)(C). While his proceedings were pending, Mr. Pereida was convicted of a crime under Nebraska state law. See Neb. Rev. Stat. §28–608 (2008). Ana- lyzing whether Mr. Pereida’s conviction constituted a “crime involving moral turpitude” that would bar his eligibility for cancellation of re- moval, §§1182(a)(2)(A)(i)(I), 1227(a)(2)(A)(i), the immigration judge found that the Nebraska statute stated several separate crimes, some of which involved moral turpitude and one—carrying on a business without a required license—which did not. Because Nebraska had charged Mr. Pereida with using a fraudulent social security card to obtain employment, the immigration judge concluded that Mr. Pereida’s conviction was likely not for the crime of operating an unli- censed business, and thus the conviction likely constituted a crime in- volving moral turpitude. The Board of Immigration Appeals and the Eighth Circuit concluded that the record did not establish which crime Mr. Pereida stood convicted of violating. But because Mr. Pereida bore the burden of proving his eligibility for cancellation of removal, the ambiguity in the record meant he had not carried that burden and he was thus ineligible for discretionary relief.
Held: Under the INA, certain nonpermanent residents seeking to cancel
2
PEREIDA v. WILKINSON Syllabus
a lawful removal order bear the burden of showing they have not been convicted of a disqualifying offense. An alien has not carried that bur- den when the record shows he has been convicted under a statute list- ing multiple offenses, some of which are disqualifying, and the record is ambiguous as to which crime formed the basis of his conviction. Pp. 5–17.
(a) The INA squarely places the burden of proof on the alien to prove eligibility for relief from removal. §1229a(c)(4)(A). Mr. Pereida accepts his burden to prove three of four statutory eligibility requirements but claims a different rule should apply to the final requirement at issue here—whether he was convicted of a disqualifying offense. Mr. Pereida identifies nothing in the statutory text that singles out that lone requirement for special treatment. The plain reading of the text is confirmed by the context of three nearby provisions. First, the INA specifies particular forms of evidence that “shall constitute proof of a criminal conviction” in “any proceeding under this chapter,” regardless of whether the proceedings involve efforts by the government to re- move an alien or efforts by the alien to establish eligibility for relief. §1229a(c)(3)(B). Next, Congress knows how to impose the burden on the government to show that an alien has committed a crime of moral turpitude, see §§1229a(c)(3), 1227(a)(2)(A)(i), and yet it chose to flip the burden when it comes to applications for relief from removal. Fi- nally, the INA often requires an alien seeking admission to show “clearly and beyond doubt” that he is “entitled to be admitted and is not inadmissible,” §1229a(c)(2), which in turn requires the alien to demonstrate that he has not committed a crime involving moral turpi- tude, §1182(a)(2)(A)(i)(I). Mr. Pereida offers no account why a rational Congress would have placed this burden on an alien who is seeking admission, but lift it from an alien who has entered the country ille- gally and faces a lawful removal order. Pp. 5–7.
(b) Even so, Mr. Pereida contends that he can carry the burden of showing his crime did not involve moral turpitude using the so-called “categorical approach.” Applying the categorical approach, a court considers not the facts of an individual’s conduct, but rather whether the offense of conviction necessarily or categorically triggers a conse- quence under federal law. Under Mr. Pereida’s view, because a person could hypothetically violate the Nebraska statute without committing fraud—i.e., by carrying on a business without a license—the statute does not qualify as a crime of moral turpitude. But application of the categorical approach implicates two inquiries—one factual (what was Mr. Pereida’s crime of conviction?), the other hypothetical (could some- one commit that crime of conviction without fraud?). And the Ne- braska statute is divisible, setting forth multiple crimes, some of which the parties agree are crimes of moral turpitude. In cases involving
Cite as: 592 U. S. ____ (2021) 3 Syllabus
divisible statutes, the Court has told judges to determine which of the offenses an individual committed by employing a “modified” categori- cal approach, “review[ing] the record materials to discover which of the enumerated alternatives played a part in the defendant’s prior convic- tion.” Mathis v. United States, 579 U. S. ___, ___. This determination, like many issues surrounding the who, what, when, and where of a prior conviction, involves questions of historical fact. The party who bears the burden of proving these facts bears the risks associated with failing to do so. This point is confirmed by the INA’s terms and the logic undergirding them. A different conclusion would disregard many precedents. See, e.g., Taylor v. United States, 495 U. S. 575, 600. Just as evidentiary gaps work against the government in criminal cases where it bears the burden, see, e.g., Johnson v. United States, 559 U. S. 133, they work against the alien seeking relief from a lawful removal order. Congress can, and has, allocated the burden differently. Pp. 7– 15.
(c) It is not this Court’s place to choose among competing policy arguments. Congress was entitled to conclude that uncertainty about an alien’s prior conviction should not redound to his benefit. And Mr. Pereida fails to acknowledge some of the tools Congress seemingly did afford aliens faced with record-keeping challenges. See, e.g., §1229a(c)(3)(B). Pp. 15–17.
916 F. 3d 1128, affirmed.
GORSUCH, J., delivered the opinion of the Court, in which ROBERTS, C.J.,andTHOMAS,ALITO,andKAVANAUGH,JJ.,joined. BREYER,J.,filed a dissenting opinion, in which SOTOMAYOR and KAGAN, JJ., joined. BARRETT, J., took no part in the consideration or decision of the case.
KEY QUOTE FROM DISSENT:
Finally, it makes particularly little sense to disregard this core feature of the categorical approach here. See id., at 203–204. As already noted, cancellation of removal is discretionary. Thus, when a conviction is not disqualifying under the categorical approach, the Government may still deny the noncitizen relief. If it turns out that an individual with a record like the one here in fact violated the statute in a reprehensible manner, that can be accounted for during the discretionary phase of the proceedings, when the categorical approach does not apply.
***
In my view, the Court should follow Congress’ statute. Congress has long provided that immigration courts apply- ing the INA provision here, like sentencing courts applying ACCA, must follow the categorical approach. See Mellouli, 575 U. S., at 805–806. Our cases make clear how that approach applies in a case like this one. We should follow our earlier decisions, particularly Taylor, Shepard, and John- son. And, were we to do so, ineluctably they would lead us to determine that the statutory offense of which Mr. Pereida was “convicted” is not “necessarily” a “crime involving moral turpitude.”
Because the Court comes to a different conclusion, with respect, I dissent.
**********************
“When in doubt, throw ‘em out,” seems to be the majority’s refrain. As pointed out by Justice Breyer, a decision that allowed Mr. Pereida, who has lived in the U.S. for a quarter of a century, to apply for cancellation of removal because of the uncertainty as to whether his 2010 conviction for “attempted criminal impersonation” under Nebraska law involved “moral turpitude,” would not have guaranteed him relief. It merely would have allowed the Immigration Judge to weigh the substantial equities that Mr. Pereida and his family had developed against his decade-old criminal conviction.
The Immigration Judge could then have decided, on the basis of a fully developed record, in the exercise of discretion whether or not Mr. Pereida merited a “second chance” in the U.S. And, of course, if the application were granted, ICE would still have the ability to appeal to the BIA, which exercises “de novo” review on questions of discretion.
There is lots that needs to be changed about our current immigration system. It’s too bad that Congress appears too deadlocked to get the job done.
PWS
03-04-21
UPDATE:
”Sir Jeffrey” Chase just reminded me that our Round Table 🛡⚔️filed an amicus brief in support of the respondent’s position in this case. Sadly, we didn’t carry the day, here! ☹️
But, we’ll be heard from again on the “categorical approach.” I guarantee it!
“Willian Rubio Barahona petitions for review of a decision by the Board of Immigration Appeals (“BIA”) upholding the denial of his request for asylum and withholding of removal, based on a finding that serious reasons exist to believe Barahona committed a serious nonpolitical crime outside the United States. We hold that the “serious reasons for believing” standard requires a finding of probable cause before an alien can be subject to the mandatory bar set forth in 8 U.S.C. § 1158(b)(2)(A)(iii), 8 U.S.C. § 1231(b)(3)(B)(iii), and 8 C.F.R. § 1208.16(d)(2). Because no such finding was made below, we reverse and remand for further proceedings.”
“Plaintiff-Appellant New York Legal Assistance Group (“NYLAG”) seeks access to non-precedential “unpublished opinions” issued by Defendant-Appellee the Board of Immigration Appeals (“BIA”) in immigration cases. NYLAG wants to consult the opinions, which are not routinely made available to the public, to aid in its representation of low-income clients in removal and asylum proceedings. NYLAG asserts that the BIA’s failure to make the opinions publicly available violates the agency’s affirmative obligation under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552(a)(2), to “make available for public inspection in an electronic format final opinions . . . [and] orders, made in the adjudication of cases.” In this action under FOIA’s remedial provision, 5 U.S.C. § 552(a)(4)(B), which authorizes district courts “to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant,” NYLAG seeks an order requiring the BIA to make available to the public all unpublished opinions issued since November 1, 1996, as well as future unpublished opinions. The United States District Court for the Southern District of New York (Paul A. Crotty, J.) dismissed the case, concluding that FOIA’s remedial provision does not authorize district courts to order agencies to make records publicly available. We conclude that FOIA’s remedial provision authorizes the relief NYLAG seeks. FOIA’s text, read in light of its history and purpose, empowers district courts to order agencies to comply with their affirmative disclosure obligations under 5 U.S.C. § 552(a)(2), including the obligation to make certain documents publicly available. We therefore VACATE the judgment of the district court and REMAND for further proceedings consistent with this opinion.”
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Why would the BIA even want to withhold unpublished decisions or bar someone from asylum based on less than probable cause? Why would anyone want to further impede the already difficult task of representing the most vulnerable in Immigration Court? What if the resources wasted on litigation to diminish due process were “repurposed” to working with NYLAG and other pro bono all-stars to achieve universal representation? Much of what EOIR does these days makes little or no sense unless looked at from a White Nationalist nativist perspective.
When will it end? The Biden Administration proclaimed a “new day” on immigration and human rights issues. But, you sure can’t tell from the junk continuing to come out of the BIA and being defended in court by OIL. No matter how welcome the change in tone from the President is, it requires concerted action and getting better judges, administrators, and litigators in place to actually change policies, produce fairer results, and save lives!
Congrats to Allison Heimes and the good folks at Fair Trials Americas.
Also, congrats to my former Georgetown Law superstar, Arlington Intern, & NY JLC, Elizabeth Gibson (“The Gibson Report”) and her colleagues at the NY Legal Assistance Group!
Elizabeth Gibson Attorney, NY Legal Assistance Group Publisher of “The Gibson Report”
🇺🇸🗽⚖️Due Process Forever! We need “a little less talk and a lot more action!”
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”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 https://www.flickr.com/photos/rasputin243/ Creative Commons License
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.
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 themisfortune 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 Custom Design Concept
“[In Ortiz I, this] Court determined that a conviction under Minn. Stat. Ann. § 609.50, subdiv. 2(2) [obstruction of legal process, arrest, or firefighting] is not categorically a crime of violence—and, thus, not an aggravated felony—because the minimum amount of force required to sustain a conviction under that statute is less than the level of force required to constitute a crime of violence under Johnson v. United States, 559 U.S. 133, 140 (2010). Ortiz v. Lynch, 796 F.3d 932, 935-36 (8th Cir. 2015). Accordingly, we granted Ortiz’s petition for review, vacated the order of removal, and remanded to the BIA to decide whether Ortiz’s prior conviction nonetheless subjected him to removal under 8 U.S.C. § 1227(a)(2)(A)(i) as a crime involving moral turpitude.
… Pursuant to the parties’ joint motion, the BIA remanded the case to the IJ to decide the issue. Ortiz again moved to terminate removal proceedings, arguing that a conviction for obstruction of legal process under Minn. Stat. Ann. § 609.50, subdiv. 2(2) is not a crime involving moral turpitude. The IJ denied the motion, finding that Ortiz’s prior conviction was categorically a crime involving moral turpitude because (1) the statute requires intentional conduct, and (2) using or threatening force or violence to obstruct legal process entails conduct that is inherently base, vile, or depraved and contrary to accepted rules of morality. Accordingly, the IJ sustained the charge of removability under 8 U.S.C. § 1227(a)(2)(A)(i) and ordered Ortiz’s removal from the United States to Mexico on that basis. The BIA affirmed the IJ’s decision, adding that the minimum conduct punishable by the statute falls within the definition of “moral turpitude” because it involves some aggravating level of force or violence in the context of interference with important and legitimate government functions. Ortiz again filed a timely petition for review.
… [W]e conclude that the BIA erred in finding that a conviction under Minn. Stat. Ann. § 609.50, subdiv. 2(2) is categorically a crime involving moral turpitude. For the foregoing reasons, we hold a conviction under Minn. Stat. Ann. § 609.50, subdiv. 2(2) is not categorically a crime involving moral turpitude under 8 U.S.C. § 1227(a)(2)(A)(i). We, therefore, grant Ortiz’s petition for review and vacate the order of removal.”
[Attorney David L. Wilson writes: “This statement is particularly helpful and could go unnoticed. The court wrote, “Further, because subdivision 2(2) is a penalty provision, rather than a “statutory element[] that criminalize[s] otherwise innocent conduct,” the presumption in favor of a scienter requirement does not apply. United States v. X-Citement Video, Inc., 513 U.S. 64, 72 (1994).” The government has been trying to invoke this argument for some time, and the Eighth just shut it down. A round of applause to Anne Carlson for the first round of the fight, and Brittany Bakken for bearing with me for the second round.”]
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Bottom line: For more than five years over two Administrations on a number of charges, EOIR has been attempting to wrongfully deport this individual. This falls below the “minimum level of competence” that should be expected of an “expert tribunal” that is nothing other than a deportation factory with a fancy title. And, let’s remember that the 8th Circuit, out in the middle of “America’s Heartland,” is hardly the 9th Circuit, the 7th Circuit, or even the 4th Circuit, all of which have been much more openly critical of the BIA’s lousy performance.
The cost of “deportation at any cost” is too high for America! Whatever happened to due process, fundamental fairness, and impartial judging? Gone by the wayside! No wonder this unfair and dysfunctional system is running a largely self-inflicted backlog of more than 1.4 million known cases and “who knows how many” that are lost or otherwise “off-docket” in the EOIR morass of biased judging and gross mismanagement.
When will it end? How many will be wrongfully deported or die because one of American’s largest “court” systems (that isn’t’ a “court” at all) is allowed to continue to operate far below minimum levels of constitutionality and competence?
