"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
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.
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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!
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
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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
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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! ⚾️
