AMERICA’S SHAME: 🤡 “CLOWN COURTS” PLUNGE TO NEW DEPTHS UNDER TRUMP & DOJ: Unpaid Judges, Court Clerks Who Can’t Afford The Rent, Illegal Rulings & Idiotic Policies By Biased & Ignorant DOJ Politicos, Unachievable Expectations, Unnecessary Postponements Caused By Trump & DOJ, & On Top Of It All A Few Unqualified Judges Who Discriminate, Cut Corners, & Intentionally Deny Due Process, All Combine To “Tank” Already Low Morale To Incomprehensible Lows!

https://www.cbsnews.com/news/government-shutdown-claims-immigration-judge-paychecks-as-court-morale-hits-a-historic-low/

Kate Smith reports for CBS News:

The nation’s roughly 400 immigration judges are getting hit hard by the government shutdown:

  • They’re about to miss their second paycheck.
  • About three-quarters have been furloughed and unable to work, which means their case backlog is growing.
  • The result: Morale is at a “historic low,” said Ashley Tabaddor, the president of the National Association of Immigration Judges and a Los Angeles-based immigration herself, in an interview with CBS News.

The immigration court docket is split into two categories: Hearings for immigrants who have been detained represent about 5 to 10 percent of the docket. These cases have been uninterrupted during the shutdown and have been overseen by approximately 100 judges who aren’t getting paid.

“I’ve been using the words ‘unprecedented’ and ‘surreal,’ and yet it keeps becoming more unprecedented and more surreal,” said Tabaddor. “It’s so unfortunate that we’ve reached this level of dysfunction.”

Adding to the low morale is a the massive backlog of cases, which has risen by nearly 50 percent since President Trump took office. As of November 30 the backlog stood at just over 800,000 cases, but if the shutdown continues through February it could break one million.

Worse still for the judges is a new quota system announced in October by the Department of Justice. It said that all judges would be required to complete 700 immigration cases in the following year; if they fall behind, their job security could be on the line.

“It’s so disconnected from reality,” said Tabaddor. “Those cases just can’t be completed in the timeframe that the administration is demanding. Frankly, it’s laughable.”

Given that many judges haven’t been able to work for more than a month, will the quota be waived? DOJ hasn’t given any guidance, said Tabaddor.

“It’s not like if you miss a day of work, they work just goes away,” Tabaddor said. “Everyone knows that they minute the shutdown is over, what awaits them is 10 times worse than what they left behind.”

“Judges jobs are on the line if they don’t meet these arbitrary number,” Tabaddor said. “People are very concerned.”

A call and email to the Department of Justice were not returned, but the agency’s website said that press inquiries may not be returned because of the government shutdown.

Currently, most non-detained judges have four to five thousand hearings scheduled through 2021 and in some cases 2022, Tabaddor said, noting that “every single day on their calendar is booked.” Immigrants who had hearings originally scheduled during the shutdown will most likely be forced to wait years before they’re able to get in front of a judge.

Forcing judges to rush through their quotas could have a devastating impact on immigration hearings, said Kate Voigt, the associate director of government relations at the American Immigration Lawyers Association. When forced to choose between their own job security and a through understanding of an individual’s case, many judges have gone with the former, pushing through cases without giving immigrants their due process, Voigt said.

The Department of Justice has “increased pressures on judges to churn out cases at lightning speeds, at the expense of due process and case-by-case determinations,” Voigt said in an email to CBS News.

In Charlotte, North Carolina some judges have refused to hear testimony from female asylum seekers from Central America, citing an now-overturned policy statement from former Attorney General Jeff Sessions that removed domestic and gang violence from admissible asylum criteria, said Jeremy McKinney, an immigration attorney who serves clients in North Carolina and South Carolina, in an interview with CBS News. In one asylum hearing McKinney had last year prior to the government shutdown, Judge Barry Pettino refused to let his client testify, instead denying her asylum case outright because it dealt with gender-based violence, according to McKinney.

“My client didn’t think she was going to win her case, but she certainly didn’t think we were going to be in and out in 45 minutes,” McKinney said. “If the asylum seeker never gets to take the stand under oath, never gets to tell their story, that’s a fundamental due process problem right there.”

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In the words of the distinguished Judge Tabaddor, “surreal!” Why is it “OK” to have a court operating in the “Twilight Zone” making life or death decisions? How would you like YOUR life or YOUR loved one’s life to be determined by this dysfunctional mess?

Simply shameful! Also completely unnecessary. Trump and the DOJ are totally unqualified to run any court, let alone one with life or death authority. Congress is paralyzed. If the Article IIIs don’t step in, take this over, and require the restoration of at least rudimentary Due Process, there might not be any removals in the future!

How will they “reopen” this mess even when the “Trump shutdown” ends? Why won’t most of the overworked, underpaid, under appreciated, stressed out Court Clerks who keep this (unautomated, paper heavy) “Rube Goldberg Contraption” afloat, and who live paycheck to paycheck, have found new jobs where they are fairly paid and appreciated? Why won’t all the retirement-eligible judges head for the exits where life is better, the paychecks keep coming, and you can actively fight the Trump idiocy?

PWS

01-23-19

 

PWS

01-23-19

FALSE EQUIVALENCY: No, “Trump’s Shutdown” Is Not A “Failure Of Both Parties” Or “Washington’s Fault” – It’s 100% On Trump & The GOP & Proves Beyond A Reasonable Doubt That They Are Incapable Of Governing In A Responsible & Reasonably Competent Manner!

FALSE EQUIVALENCY:  No, “Trump’s Shutdown” Is Not A “Failure Of Both Parties” Or “Washington’s Fault” – It’s 100% On Trump & The GOP & Proves Beyond A Reasonable Doubt That They Are Incapable Of Governing In A Responsible & Reasonably Competent Manner!

 

By Paul Wickham Schmidt

United States Immigration Judge (Retired)

I’m tired of hearing all the “fake news” about “shared responsibility” for the “Trump shutdown:” The totally insane and unnecessary shutdown that he promised to inflict and that Mitch McConnell and the GOP enablers delivered against the American people.

The shutdown is 100% a GOP responsibility, just as Trump originally threatened. The wall is at best an ineffective and overpriced method of addressing border security, particularly standing alone. And, it has absolutely nothing to do with current border security because it would take years, if not decades, to build. There is no way that it justifies shutting down the Government.

Trump’s latest offer clearly was made in bad faith. While he and Pence disingenuously presented a distortedly simple version to the public, the actual 1,000-page screed was filled with White Nationalist attacks on asylum, kids, and migrants drafted by neo-Nazi Stephen Miller as a “sharp stick in the eye” to Dems, Hispanics, refugees, and all Americans who believe in our Constitution and humane values. In other words, typical Trump/Miller/McConnell nonsense. Trump is actually offering “Dreamers” less than the Supremes have effectively guaranteed them. So, how is that a reasonable proposal or a good faith “starting point” for negotiations?

The GOP can and should join Dems in reopening Government now, no strings attached and with a much-needed pay raise for Feds, by a “veto-proof” margin. Forget Trump, his anti-American rants and schemes, and his diminishing White Nationalist “fan club.”

Then, the “Non-Bakuninist Branch” of the GOP needs to join the Dems in governing America, which Trump has proved beyond a reasonable doubt he has neither the ability nor the desire to do. Immigration should be part of that discussion; but, not the White Nationalist agenda on immigration that Trump and Miller keep pushing.

We need a realistic discussion that would strengthen protections for asylum seekers, use more smart technology, improved intelligence, Immigration Inspectors, Anti-Smuggling Officers, undercover agents, Asylum Officers, and Immigration Judges to deal with the border situation, and significantly expand legal immigration. The latter is a long overdue common-sense move to serve our country’s future needs (most reliable studies show that we need more, not less immigration), diminish the size and allure of the “extra-legal” system that arises when the law is out of whack with market realities (as ours is now), and allow DHS enforcement to focus on the “real bad guys” rather than artificially combining “bad guys” with folks coming to help us out (and help themselves and their families in the process).

Reform of the U.S. Immigration Courts which Trump and Sessions have utterly and cynically destroyed should also be on the agenda. There is only one answer: get those courts out of the politicized and incompetent U.S. Department of Justice and into an independent judicial structure where apolitical judges and professional court administrators can start fixing the absolutely disgraceful and dysfunctional mess that Sessions and his predecessors have made out of what could have been an effective and efficient provider of Due Process. Too late now! Just stop the hemorrhaging and start building something of which America can actually be proud rather than the current national embarrassment, which serves neither the individuals whose rights it was intended to protect nor legitimate DHS enforcement objectives. That’s the very definition of failure.

The Post and other mainstream media keep pushing a “false equivalency” in blaming “both sides” for the shutdown. That’s not true; the shutdown was engineered solely by Trump and the GOP BEFORE the Dems even took over the House, just as Trump had publicly and petulantly threatened.

While the Dems should look for ways to be part of the solution, the problem is Trump, the GOP, and those enablers who continue to support a fundamentally anti-American agenda that attacks our own governing institutions and the dedicated public servants who keep them running for all of us.

Every day must be a great day for Vladimir Putin with Trump and the GOP destroying America! It’s time for Dems and whatever responsible GOP legislators might remain to take the reins and save America from Trump and his Putin-serving policies before it’s too late! “Time’s a wasting” while Trump and the GOP are fiddling with our country’s security and future well-being. Unacceptable!

PWS

01-23-19

COLBERT I. KING @ WASHPOST: NATION IN REGRESSION: Trump & His White Nationalist Flunkies Are An Insult To All That Rev. Martin Luther King & His Supporters, Of All Races & Religions Stood For! — From the promise of guaranteed rights to a return to the insecurity of injustice. A pluralistic America is being cynically drawn along racial lines by a president who is as far from the civility of his predecessors Truman, Eisenhower, Kennedy, Johnson, Ford, Carter, Reagan, the Bushes, Clinton and Obama as the charter of the Confederacy was from the Constitution.” — But, The New Due Process Army Continues MLK’s Legacy!

https://www.washingtonpost.com/opinions/martin-luther-king-jr-would-be-outraged/2019/01/18/e4a7b4c6-1a75-11e9-8813-cb9dec761e73_story.html

Colby King writes:

. . . .

The greatest contrast between the time King led the struggle for America’s legal and social transformation and now is a White House occupied by Donald Trump.

There is a long list of ways in which backtracking on civil and human rights has occurred since the election of a president who lost the popular vote by nearly 3 million votes. It ranges from discriminatory travel bans against Muslims to turning a federal blind eye to intentionally racially discriminatory state voter-suppression schemes, to opposing protections for transgender people, to inhumanely separating children from families seeking to enter the country.

Sadly, that’s not all that stands out.

Once the federal locus of the nation’s quest for racial reconciliation, today’s White House is a source of racial divisiveness and a beacon to the prejudice-warped fringes of American society. It’s no surprise that the FBI found hate crimes in America rose 17 percent in 2017, the third consecutive year that such crimes increased. In King’s day, racially loaded, hateful rhetoric could be heard across the length and breadth of the Deep South. Now, mean, disgusting and inflammatory words come out of the mouth of the president of the United States.

From the promise of guaranteed rights to a return to the insecurity of injustice. A pluralistic America is being cynically drawn along racial lines by a president who is as far from the civility of his predecessors Truman, Eisenhower, Kennedy, Johnson, Ford, Carter, Reagan, the Bushes, Clinton and Obama as the charter of the Confederacy was from the Constitution.

King, and the movement he led, would be outraged. The rest of us should be, too.

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Read the full op-ed at the above link.

Very powerful! King speaks truth, reason, and humanity — in the spirit of Dr. King. Contrast that with the vile slurs, bogus race-baiting narratives, and non-policies spewing from the mouth of our racist (and incompetent) Liar/Grifter-in-Chief!

Two of my favorite MLK quotes (from the Letter from the Birmingham Jail — with acknowledgment to the Legal Aid and Justice Center from their poster hanging in my “office”)):

Injustice anywhere is a threat to justice everywhere.

Whatever affects one directly, affects all indirectly.

Thanks to those many courageous and dedicated individuals tirelessly serving America in the New Due Process Army by resisting Trump’s illegal and anti-American policies! You, indeed, are the 21st Century continuation of Dr. King’s legacy to our country and the world! Dr. King would be proud of you! Due Process Forever!

PWS

01-21-19

DACA SURVIVES (AGAIN) TO FIGHT ANOTHER DAY!

https://www.nbcnews.com/politics/supreme-court/supreme-court-unlikely-hear-trump-daca-appeal-n960321

Pete Williams reports for NBC News:

WASHINGTON — The U.S. Supreme Court took no action on Friday on the future of the Deferred Action for Childhood Arrivals program. It now appears likely that the court will not take up the issue during its current term, which would require the government to keep the program going for at least ten more months.

The Trump administration urged the justices to hear appeals of lower court rulings that prevent the government from shutting DACA down, but Friday was the last day for adding cases to the current term’s docket, barring unusual circumstances. Any cases accepted in subsequent weeks won’t be heard until the next term, which begins October 1, and it would take a few months more for the court to issue a decision.

DACA allows children of illegal immigrants to remain here if they were under 16 when their parents brought them to the US, provided they arrived by 2007. The Obama-era initiative has allowed 700,000 young people, commonly referred to as “Dreamers,” to avoid deportation. The nickname comes from the DREAM Act, which would have offered many of the same protections as DACA but was never approved by Congress.

The Trump administration moved to end the program in late 2017, but federal courts in San Francisco, New York, and Washington, D.C., blocked that attempt. Following a brief hiatus, the government began accepting renewal applications from DACA participants, which must be filed every two years.

The Ninth Circuit Court of Appeals in San Francisco ruled that, far from being illegal, deferred action has been a feature of the immigration system for decades. “In a world where the government can remove only a small percentage of the undocumented non-citizens present in this country in any year, deferred action programs like DACA enable DHS to devote much-needed resources to enforcement priorities such as threats to national security, rather than blameless and economically productive young people with clean criminal records.”

The Justice Department asked the Supreme Court to overturn up those lower court judgments. The Department of Homeland Security and the attorney general concluded that it is unlawful, said Solicitor General Noel Francisco, finding that it “sanctions the ongoing violation of federal law by more than half a million people.”

He said that by agreeing to hear the appeals, the court could “provide much-needed clarity to the government and DACA recipients alike.” Francisco also said that as long as the question is pending in the courts, Congress has less incentive to come up with a permanent solution.

But supporters of the DACA program said nothing in the lower court rulings would prevent the government from undertaking deportation proceedings against any individual DACA recipient if the need arose. They also noted that President Trump himself has taken conflicting positions on the program, saying at one point, “I love the ‘Dreamers.'”

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

Apparently, the Supremes had the good sense not to fall for the DOJ’s frivolous argument that this is an “emergency.” How a member of the Solicitor General’s Office made that argument with a straight face is beyond me.  Clearly the “SG” is sacrificing its integrity and its reputation by representing the arrogantly and ignorantly scofflaw positions of Trump and his incompetent toadies. And, Trump’s arrogant assumption that the Supremes will bail him out of his totally incompetent handling of the “Dreamers” might be on the ropes.

Doesn’t necessarily mean the Supremes won’t eventually hear the case. But, they shouldn’t.

PWS

01-19-19

ADMINISTRATION’S WHITE NATIONALIST SCOFFLAW AGENDA THWARTED AGAIN – Federal Judge Exposes Lies & Cynicism In Trump Officials’ Attempt To Suppress Hispanic Response To Census!

David Leonhardt in the NY Times:

White nationalism lost in federal court yesterday.

Judge Jesse Furman blocked the Trump administration’s attempt to add a question to the 2020 census asking about citizenship status. Furman “found that Commerce Secretary Wilbur Ross violated federal law by misleading the public — and his own department — about the reasons for adding the question,” Dara Lind of Vox writes.

Ross claimed, laughably, that the citizenship question would help the Trump administration enforce voting rights. In truth, it was designed to intimidate Latinos — both legal and illegal — into not responding to the census. The resulting undercount would then reduce the political representation of immigrant-heavy regions and cause them to receive less federal funding.

The citizenship question, Paul Waldman writes in The Washington Post, is part of “a broader effort on the part of Republicans to put a thumb on the electoral scale in every way they possibly can, whether it’s extreme gerrymandering, voter suppression efforts targeted at minorities, or the use of the census to make Republican victories just that much more likely.”

Yesterday’s ruling isn’t the final word. The Trump administration will likely appeal, and the appeal will likely reach the Supreme Court, where Republican-appointed justices hold a five-to-four majority.

But there is some reason to hope the justices will avoid an obviously partisan decision. Neil Gorsuch and Brett Kavanaugh, the two newest conservative justices, have previously taken a dim view of federal officials who exceed limits on their power, The Daily Beast’s Jay Michaelson explains. “While it’s always possible that the Court’s conservatives will vote ideology over principle … their particular judicial philosophies do not bode well for the Trump administration’s brazen defiance of administrative law,” Michaelson writes.

A side note: Given the combination of his census exploits, his lies about those exploits and his shady stock trades, Ross may now deserve consideration if my colleague Gail Collins revisits her analysis of the worst Trump Cabinet member. His case is helped by the fact that some of his even more corrupt colleagues have recently departed the administration.

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

Seems to me that the Government attorneys representing liars like Ross and his dishonest positions in court are violating ethical rules. Why would a case like this be on the way to the Supremes, rather than Ross being on his way to jail for conspiring to violate civl rights? And, as Leonhardt points out, some of his departed Cabinet colleagues were even more corrupt and dishonest.

PWS

01-16-19

NO, WE’RE NOT “OVERWHELMED” WITH ASYLUM SEEKERS – BUT TRUMP’S SHUTDOWN IS ADDING TO THE IMMIGRATION COURT BACKLOG, CREATING MORE “AIMLESS DOCKET RESHUFFLING” THAT HELPED CREATE THE BACKLOG IN THE FIRST PLACE, AND SCREWING ASYLUM SEEKERS WITH PENDING CASES! — We Won’t Be Able To Solve Immigration Until The Immigration Court is Removed From The Executive Branch & Becomes An Independent Court!

The latest TRAC IMMIGRATION report confirms what most of us familiar with the dysfunctional U.S. Immigration Courts already knew: Trump has already needlessly added 42,000 cases to the backlog and will have added at least 100,000 of the shutdown lasts through the end of January.

 

==========================================
Transactional Records Access Clearinghouse
==========================================
FOR IMMEDIATE RELEASE

Since the beginning of the federal government shutdown, most Immigration Court hearings have been cancelled. As of January 11, the estimated number of cancellations reached 42,726. Each week the shutdown continues, cancelled hearings will likely grow by another 20,000. As many as 100,000 individuals awaiting their day in court may be impacted if the shutdown continues through the end of January.

Each week the shutdown continues the practical effect is to add thousands of cases back onto the active case backlog which had already topped eight-hundred thousand (809,041) as of the end of last November. Individuals impacted by these cancellations may have already being waiting two, three, or even four years for their day in court, and now may have to wait years more before their hearing can be rescheduled once the shutdown ends.

Immigration Courts in California have experienced the most hearing cancellations – an estimated 9,424 as of January 11. These and many more details are based on analyses of court records by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University.

For state-by-state impacts, see the full report at:

http://trac.syr.edu/immigration/reports/543

In addition, many of TRAC’s free query tools – which track the court’s overall backlog, new DHS filings, court dispositions and much more – have now been updated through November 2018. For an index to the full list of TRAC’s immigration tools go to:

http://trac.syr.edu/imm/tools/

If you want to be sure to receive notifications whenever updated data become available, sign up at:

http://tracfed.syr.edu/cgi-bin/tracuser.pl?pub=1&list=imm

or follow us on Twitter @tracreports or like us on Facebook:

http://facebook.com/tracreports

TRAC is self-supporting and depends on foundation grants, individual contributions and subscription fees for the funding needed to obtain, analyze and publish the data we collect on the activities of the U.S. federal government. To help support TRAC’s ongoing efforts, go to:

http://trac.syr.edu/cgi-bin/sponsor/sponsor.pl

David Burnham and Susan B. Long, co-directors
Transactional Records Access Clearinghouse
Syracuse University
Suite 360, Newhouse II
Syracuse, NY 13244-2100
315-443-3563

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

But, that’s not all folks!

Amy Taxin reports for NBC LA:

https://apple.news/AB_FhnUCjSkylre8-ue8cZQ 

The partial government shutdown over President Donald Trump’s demand for a border wall is playing havoc with the nation’s already backlogged immigration courts, forcing the postponement of hearings for thousands of immigrants.

For some of those asking for asylum in the U.S., the impasse could mean years more of waiting — and prolonged separation from loved ones overseas — until they get a new court date.

But for those immigrants with little chance of winning their bids to stay in this country legally, the shutdown could help them stave off deportation that much longer — adding to the very delays the Trump administration has railed against.

“It is just dripping with irony,” said Sarah Pierce, policy analyst at the nonpartisan Migration Policy Institute. “This administration has put a lot of emphasis on speeding up court cases, and the shutdown obviously is just going to cause massive delays.”

The shutdown has furloughed hundreds of thousands of government employees and halted services that aren’t deemed essential, including, in many instances, the immigration courts overseen by the Justice Department.

Hearings involved detained immigrants are still going forward. But untold thousands of other proceedings have been postponed. No one knows for how long; it depends on when employees return to work and hearings can be reset.

Immigration experts said cases could be delayed months or years since the courts have more than 800,000 pending cases, according to the Transactional Records Access Clearinghouse at Syracuse University, and many courtrooms are tightly booked.

Immigration Judge Dana Marks, former president of the National Association of Immigration Judges, said she has at least 60 hearings a day in her San Francisco courtroom and no space on her docket for at least the next three years.

“The cases that are not being heard now — there is no readily available place to reschedule them until at least 2022 or beyond,” Marks said of her courtroom.

Immigration judges hear a wide range of complex cases from immigrants from across the world, some who have recently arrived in the United States, others who have lived in the country for years and the government is seeking to deport.

Immigration judges have long sought more staffing to handle the ballooning caseload, which has roughly doubled in five years following a surge in Central American children and families arriving at the southern border. The Trump administration has tried to speed up the courts by assigning immigration judges quotas and stopping them from shelving cases.

Some of the toughest cases immigration judges hear are claims for asylum, or protection from persecution. And long wait times can be especially difficult for asylum seekers, since they can’t bring spouses or children to join them in the United States unless their asylum requests are approved.

Reynold Finnegan, an immigration attorney in Los Angeles, said one of his Afghan clients hasn’t seen his wife or children in nearly nine years. After being kidnapped and tortured by the Taliban, the man left his homeland, traveled across the world and made his way to the U.S.-Mexico border to seek asylum, Finnegan said.

He waited more than six years for his final hearing before an immigration judge, but it was canceled last week because of the shutdown, and he doesn’t know how much longer it will take.

“He is devastated,” Finnegan said. “He was really planning on seeing his wife later in the year when he got approved, and his children.”

Since the shutdown began in December, immigrants have had to prepare for their scheduled court hearings and in many cases travel to court, knowing the proceedings might be postponed. In Northern states, that can mean hourslong car trips through ice and snow and taking days off from work.

The delays are painful for many immigrants, especially those who have strong asylum claims or green card applications and want to get their lives on solid footing in the United States.

Those with the weakest asylum claims actually benefit from the delays, because they are able to remain in the U.S. in the meantime and hold out hope of qualifying for legal status by some other means down the road.

In the 2017 fiscal year, immigration courts decided more than 52,000 asylum cases. About 1 in 5 were approved, according to statistics from the courts.

Courts have been crippled by a government shutdown. More than 37,000 immigration hearings were delayed by one in 2013.

And it isn’t just immigration courts that are affected. Since Justice Department attorneys are allowed to work in limited circumstances only, some high-profile civil cases have been put on hold, including a lawsuit in Oregon by the widow of Robert “LaVoy” Finicum, a man shot by police in 2016 after the takeover of a wildlife refuge.

Government attorneys have also sought to put on hold environmental cases, including challenges to logging projects and wild horse roundups in Montana and a lawsuit over the disposal in Oklahoma of toxic coal ash from power plants.

Most major criminal cases are expected to stay on track because of federal requirements for a speedy trial.

One aspect of immigration unaffected by the shutdown is the review of applications for green cards and citizenship. That’s because those tasks, which are handled by an agency in the Homeland Security Department, are paid for by application filing fees.

One asylum seeker, who spoke on condition of anonymity for fear of persecution in her home country, said the wait has been unbearable since her 2014 court date was twice delayed. It is now set for February.

“The past four years have been horrible enough, but this uncertainty, and my life being handled with such, I don’t know, no one cares, basically,” she said. “The process takes forever — just to get the date in front of the judge.”

Associated Press writers Dave Kolpack, Amy Forliti and Matthew Brown contributed to this report.

 

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But, wait!  That’s not all folks. There’s more!

Brittany Shoot @ Fortune writes that Immigration Court waiting times could double as a result of Trump’s shutdown!

https://apple.news/AEy1h1oc7RSux5Cdw1fo4PQ

The United States immigration courts are overburdened. Roughly 800,000 cases are portioned out between around 400 immigration judges, according to PBS NewsHour.And with the federal government shutdowncontinuing into its third week, applicants who have already waited years for their court date may now be shuttled to the back of the line, their hearings rescheduled as late as the 2022. This directly effects people’s everyday lives, as immigration status impacts basics such as the ability to get a work permit.

Focus on immigration enforcement under the Department of Homeland Security may be up, but the immigration courts, which fall under the Department of Justice, have not been given much attention despite the record-high demand for hearings that has been growing over the past decade. Judge Dana Leigh Marks, president emeritus of the National Association of Immigration Judges, told NewsHour the effects of the shutdown are having a “devastating impact.” San Francisco-based Judge Marks says that her own caseload of nearly 4,000 dockets includes cases that are already several years old. With no scheduling slots available, she says those cases may be reset to another date several years in the future.

Non-detained immigrants make up about 90% of judges’ caseloads, and those cases can end up involving anything from asylum decisions to deportations. The other 10% of cases, those for immigrants who are detained by immigration officials, are the only ones that can be processed during the shutdown. And that’s why the vast majority of those waiting for a hearing will simply be moved to the back of the line again.

The effects of the record-long government shutdownare also touching the lives of everyone from private-sector contractorsto Transportation Security Administration (TSA) agents and travelers. And if the shutdown continues for another two weeks, its cost to the economy will surpass $5.7 billion, the amount it would cost to build President Trump’s border wall.

Visit FORTUNE.com

 

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Yeah, it’s going to continue to get worse until the shutdown ends and the Immigration Courts are removed from the DOJ.

Also, don’t let Trump, the DOJ, or any of their apologists in Congress or elsewhere “con” you into blaming the largely contrived “flood of asylum applicants” for this. We must stop “blaming the victims” for the lousy policies and gross incompetence of this Administration!

The Immigration Court has been in trouble and should have been fixed years ago. But, Trump, Sessions, Nielsen, and Miller intentionally have made things much, much worse—with no hope of improvement in sight.

Returning Due Process and fairness as the primary focus of these courts as well as placing them under professional court administration working for the Immigration Judges, not bureaucrats in Washington or Falls Church, wouldn’t solve the current immigration issues overnight. But, it certainly would be a head start and a beginning of a solution. That’s one heck of an improvement over the “downward spiral” promoted by this Administration. And, it wouldn’t cost $5.7 billion to fix, either!

PWS

01-15-19

 

 

EOIR & USCIS ISSUE COURT-REQUIRED NEW GUIDANCE ELIMINATING LARGE PORTIONS OF SESSIONS’S BOGUS GUIDANCE IN DOMESTIC VIOLENCE/GANG RELATED CASES — Advocates Should Be Pushing This At All Levels In All Forums!

Dear Colleagues,

Following up on U.S. District Court Judge Emmet Sullivan’s powerful decision in Grace v. Whitaker, which found major elements of Matter of A-B- and the related USCIS Policy Memorandum to be inconsistent with the law, we are pleased to share the instructions which the Court ordered USCIS and EOIR to provide asylum officers and immigration judges conducting credible fear interviews and reviews of negative credible fear findings.  This guidance takes immediate effect and should be relied upon and cited to by advocates.

The Court declared that the following policies contained in Matter of A-B- and the related USCIS Policy Memorandum are arbitrary, capricious, and in violation of immigration law as applied to credible fear proceedings:

1.     The general rule against claims relating to domestic and gang violence.

2.     The requirement that a noncitizen whose claim involves non-governmental persecutors “show the government condoned the private actions or at least demonstrated a complete helplessness to protect the victim.”

3.     The Policy Memorandum’s rule that domestic violence-based particular social group definitions that include “inability to leave” a relationship are impermissibly circular and therefore not cognizable.

4.     The Policy Memorandum’s requirement that individuals must delineate or identify any particular social group in order to satisfy credible fear based on the particular social group protected ground.

5.     The Policy Memorandum’s directive that asylum officers should apply federal circuit court case law only “to the extent that those cases are not inconsistent with Matter of A-B-.

6.     The Policy Memorandum’s directive that asylum officers should apply only the case law of “the circuit” where the individual is “physically located during the credible fear interview.”

While the Court’s order is limited to credible fear interviews in the expedited removal process, we urge advocates to use the Court’s reasoning in merits hearings before the Asylum Office and the Immigration Court, and on review before the BIA and circuit courts.  Of the six findings above, only (4) and (6) are specific to the nature of the credible fear process, which is intended to be a low screening standard, providing the applicant with the benefit of the most advantageous case law.  The other four findings (1,2,3, and 5) are more broadly based on Judge Sullivan’s interpretation of key statutory terms of the refugee definition, and his reasoning should be adopted and argued in the merits context as well.

Best,

Karen
Karen Musalo
Bank of America Foundation Chair in International Law

Professor & Director, Center for Gender & Refugee Studies

SSRN Author Page:  http://ssrn.c

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

Thanks, Karen. The actual guidance memos can be found at the link in Karen’s e-mail.

The EOIR “guidance” asserts that it applies only in credible fear reviews. While technically true, as Karen more accurately points out, the rationale of Judge Sullivan’s findings 1, 2, 3, and 5 should apply equally in removal proceedings. Even if the “captive” BIA won’t listen the real, Article III Courts should. That’s why it’s critical to challenge all A-B- denials in the Circuits. And, as I noted before, no Circuit has yet had an opportunity to review A-B-.

Most, if not all, cases denied on the basis of Sessions’s flawed decision in Matter of AB– should be subject to remand from the Article IIIs.  Just another example of how Sessions continues to harm individuals who deserve Due Process, while contributing to the largely DOJ-made backlog and wasting the time of the Article III Courts.

PWS

01-13-19

 

 

THE ABSURDITY OF TRUMP’S SHUTDOWN & ITS DEVASTATING EFFECT ON OUR ALREADY CRUMBLING IMMIGRATION COURT SYSTEM DETAILED IN OPEN LETTER TO CONGRESS BY NAIJ PRESIDENT, HON. A. ASHLEY TABADDOR

01092019senate

NATIONAL ASSOCIATION OF IMMIGRATION JUDGES
President A. Ashley Tabaddor c/o Immigration Court 606 S. Olive Street, 15th Floor Los Angeles, CA 90014 (213) 534-4491
______________________________________________________________________________________________________ January 9, 2019
Dear Senator,
As has been widely reported, the current government shutdown over U.S. immigration policy has placed an unmanageable burden on our nation’s Immigration Courts. As an Immigration Judge in Los Angeles presently on furlough and as President of the National Association of Immigration Judges (NAIJ), I am acutely aware of the impact of the current government shut down on our Immigration Courts, Immigration Judges and the parties who appear before us.
There is currently a backlog of more than 800,000 pending immigration cases (an increase of 200,000 cases in less than two years, in spite of the largest growth in the number of judges in recent history – from under 300 to over 400 U.S. Immigration Judges). We, as Immigration Judges, are responsible for determining whether claimants can remain in the United States or must be deported or detained.
Because of the crushing backlog of cases, our individual court calendars are booked, morning and afternoon, every day of the week, multiple years in advance. Some days our judges have more than 80 cases on their dockets. Every day that our courts are closed, thousands of cases are cancelled and have to be rescheduled. However, the likely re-scheduling option is – as Washington Post editorial writers suggest – plucked from a New Yorker cartoon: “Never. Does never work for you?” While this is hyperbole, it is not far from the truth. Since it is impossible to predict when these cases can reasonably be rescheduled, it might as well be “never.”
The concept of “never” cannot be accepted and does not work for the United States. It is unacceptable to prevent those who should be deported to remain here indefinitely or to prevent those who are eligible for relief from being granted relief and receive the benefit they deserve. When a hearing is delayed for years as a result of a government shutdown, individuals with pending cases can lose track of witnesses, their qualifying relatives can die or age-out and evidence already presented becomes stale. Those with strong cases, who might receive a legal
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immigration status, see their cases become weaker. Meanwhile, those with weak cases – who should be deported sooner rather than later – benefit greatly from an indefinite delay.
Judges, as public servants, along with our fellow federal employees and people across the country, are also being asked to carry the burden of a government shut-down. Every Immigration Judge across the country is currently in a “no-pay” status. Those who have been furloughed are anxious about having been prevented from continuing to work and earn their living. The judges who have been deemed as “excepted” are serving the American people without pay and doing so with added unnecessary pressures, including the Department’s recent announcement that most hearings will no longer be accompanied with in-person interpreters, and that the judges’ previous compressed work schedules and administrative time to review cases has been cancelled. On behalf of the NAIJ, I urge you to bring a rapid end to the current shutdown.
The root cause, however, of an increasing backlog of cases, the delays, uncertainty and unfairness in U.S. Immigration Courts is that our Immigration Court and judges are directly accountable to the U.S. Attorney General, the federal government’s lead prosecutor. This underlying structural flaw has led to repeated violations of the basic tenants of our American judicial principles, that of an independent and impartial judge and court. While we are grateful to Congress for the recent allocation of additional funding to our resource starved courts, such as added Immigration Judge teams, history has proven that the issues plaguing our Immigration Courts will not be corrected simply through more funding. The enduring solution, which has been publicly supported by multiple prominent legal organizations and scholars, is to remove the Immigration Court from the Justice Department and afford it with the true independence it needs and deserves. It is long past time to vest U.S. Immigration Judges – like our counterparts in U.S. tax and bankruptcy courts – with full judicial independence under Article 1 of the U.S. Constitution.
We are available at your convenience to discuss these critical issues. Sincerely,
Hon. Ashley Tabaddor
President, National Association of Immigration Judges
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*******************************************

Wow! Trump is taking “Aimless Docket Reshuffling” — the REAL primary cause of the unmanageable court backlog — to new heights.

And, Judge Tabaddor isn’t even counting the 300,000 or so already closed cases that EOIR Director McHenry includes in his backlog count (undoubtedly on orders from his DOJ “handlers”)!

Nor does she include more than 300,000 Central Americans and Haitians that the Administration is mindlessly (and perhaps illegally) trying to boot out of their current status. Of course, the vast majority of the TPSers would have strong claims for “Cancellation of Removal.” So, in truth, they are not going anywhere except into the Court’s backlog. Trump will be long gone before the Immigration Courts even get to,the first of those cases!

Running hearings without in person interpreters! That’s almost a prima facie Due Process violation. I can virtually guarantee that it will result in many inadequate or disputed translations, meaning remands by the BIA and the Article IIIs for “redos.” Haste makes waste!

What if we actually invested in a system that “does Due Process right” the first time around? Certainly, it would make the system fairer and more efficient. It wouldn’t cost $5.7 billion either. Indeed some of that money could be spent on providing universal representation for asylum seekers.  Or how about a functioning e-filing system which almost all other high volume courts in America also have?

Could it get any dumber than Trump shutting down the Immigration Courts, essential to immigration administration and enforcement, over immigration enforcement? No, it couldn’t!

PWS

01-12-19

THE HILL: NOLAN SAYS TRUMP HAS THE WRONG “BORDER CRISIS”

https://thehill.com/opinion/immigration/424893-there-is-a-border-crisis-its-just-not-quite-what-the-president-said-it-is

Family Pictures

Nolan writes, in part:

. . . .

Unfortunately, Trump has made it easier for them by basing his request on claims about who is crossing the border that can be disputed readily, such as that many of them are terrorists or criminals.
He should base his otherwise correct argument instead on the numbers — on the fact that the sheer number of illegal crossings has overwhelmed our immigration courts, creating a backlog crisis that has made it virtually impossible to enforce our immigration laws, and that the border cannot be secured when illegal crossers are allowed to remain here indefinitely.
**********************************************
Go on over to The Hill at the link for Nolan’s complete article.
  • Democrats aren’t destroying Trump’s credibility; he’s doing that himself with his constant lies and false narratives; this is just the latest and one of the most egregious examples;
  • By all reliable counts, illegal border crossings at the Southern Border are down substantially;
  • What is “up” are crossings by unaccompanied children and families from the Northern Triangle seeking asylum;
  • Such individuals present a humanitarian situation arising from a crisis in the Northern Triangle; but, they are not a “security threat” to the US; almost all turn themselves in at ports of entry or shortly after entering to apply for asylum under our legal system as they are entitled to do;
  • Those (other than unaccompanied children) who don’t establish a “credible fear” can be returned immediately without ever getting to the Immigration Courts (except for brief “credible fear reviews” before Immigration Judges);
  • The vast majority have a “credible fear” and should be referred to Immigration Court for full hearings on their claims in accordance with the law and our Constitution;
  • When matched with pro bono lawyers, given a clear understanding of the requirements, and time to prepare and document a claim, they appear for court hearings almost all the time;
  • Even with the Trump Administration’s “anti-asylum campaign” directed primarily at applicants from the Northern Triangle, and the lack of representation in approximately 25% of the cases, asylum claims from the Northern Triangle succeed at a rate of approximately 20%, https://wp.me/p8eeJm-3oo;
  • Undoubtedly, there is a “crisis” in our U.S. Immigration Courts — a Due Process and mismanagement crisis;
  • But, the Trump Administration with its often illegal actions and gross mismanagement, has actually managed to artificially increase the Immigration Court Backlog from just over 500,000 to more than 1.1 million in less than two years — despite having at least 100 additional Immigration Judges on duty, https://wp.me/p8eeJm-3qN;
  • Indeed, Trump’s shutdown is unnecessarily “ratcheting up” the Immigration Court backlog and initiating a new round of “Aimless Docket Reshuffling” right now;
  • In addition to not understanding the true complexities of the immigration system, the Administration’s incompetent administration of the Immigration Courts is another reason why Trump might choose to shift attention elsewhere.;
  • Somebody will have to address the Due Process and administrative mess in the Immigration Courts in a constructive manner, starting with an independent, apolitical, court structure; but it won’t be the Trump Administration.

PWS

01-10-19

 

US DISTRICT JUDGE BRINKEMA CRITICIZES INCREASE IN LOW-LEVEL IMMIGRATION PROSECUTIONS: “I think this is not the best use of judicial or Justice Department resources to keep seeing these types of cases.”

https://www.washingtonpost.com/local/public-safety/federal-judge-criticizes-prosecutors-over-increase-in-illegal-immigration-cases/2019/01/10/98d4692e-103c-11e9-84fc-d58c33d6c8c7_story.html

Rachel Weiner and John D. Harden report for WashPost:

Federal judge criticizes prosecutors over increase in immigration cases

January 10 at 12:47 PM

A federal judge has spoken out against a sharp increase in Northern Virginia in the prosecution of immigrants who reenter the country after deportation.

“I hope this is not the start of a pattern for this year,” Judge Leonie M. Brinkema said in Alexandria federal court last week, noting that there were six such cases scheduled for the first Friday in January. “I think this is not the best use of judicial or Justice Department resources to keep seeing these types of cases.”

She added that she would like that message to be relayed to U.S. Attorney for the Eastern District of Virginia G. Zachary Terwilliger.

The defendant before her that morning, Ramon Adrian Ochoa Paz, ended up in federal court after serving time in Prince William County for aggravated sexual battery of a child, a felony. But in federal court, his only alleged crime was coming back into the country after being deported in 2000. And he is something of an outlier; in the majority of the 224 felony reentry after deportation cases filed in the Eastern District last year, the initial arrest involved misdemeanor offenses, most commonly drunken driving. Arrests for misdemeanor assault and public intoxication are also common.

The vast majority of these cases are prosecuted at the border, where immigrants are caught crossing illegally. The Eastern District of Virginia ranked sixth among non-border districts in illegal reentry prosecutions last fiscal year.


The federal courthouse in Alexandria, Va. (Mark Wilson/Getty Images)

The Eastern District of Virginia, a large and high-profile office led by a prosecutor who worked under Sessions, has seen a particularly sharp rise in such cases, from 78 filed in 2017 to nearly three times that number the following year.

Terwilliger declined to comment, but in recent months he has begun highlighting cases in which defendants have repeatedly come into the country illegally and committed other crimes while here. They included a Salvadoran man arrested for his fifth drunken driving offense who already had a felony reentry conviction and a Mexican man with a sexual assault and drug record who had previously been deported.

“We are committed to criminal immigration enforcement and will continue to prioritize these cases,” the U.S. attorney wrote in one such news release.

Terwilliger has simultaneously emphasized his support for legal immigration, regularly taking part in the Alexandria courthouse’s monthly naturalization ceremonies. In his first-ever tweet, he wrote, “These individuals exemplify that we are both a nation of immigrants and a nation of laws.”


U.S. Attorney for the Eastern District of Virginia G. Zachary Terwilliger. (Department of Justice)

Most illegal immigrants convicted of coming back into the country after deportation do not have previous felony or extensive misdemeanor records and are usually not sentenced to any incarceration beyond time already served awaiting judgment before they are handed over to U.S. Immigration and Customs Enforcement, according to federal court records. The average sentence in fiscal 2018 for those who did get prison time was five months, according to data from Syracuse University’s Transactional Records Access Clearinghouse — on the low end nationally and a decline from previous years.

 In many cases the initial charges are dropped or left hanging because the defendant is already in ICE custody. When the initial crime is more serious, a defendant is more likely to be prosecuted on federal charges after completing a local sentence.

Only a few of those prosecuted were not arrested for any reason other than returning to the country after deportation — for example, a contractor hired to work on a house where FBI agents were serving a search warrant.

Often, defense attorneys in these cases ask to skip as much of the standard court process as possible, hoping to move a case quickly to sentencing. Illegal immigrants rarely have the funds to hire attorneys; most of these cases are handled by taxpayer-funded public defenders.

“The court, prosecutors, and defense lawyers spend considerable time and resources, particularly to hire interpreters, on illegal reentry cases. Yet these defendants almost all face, in addition to prosecution, detention in ICE custody and deportation,” Geremy Kamens, lead public defender for the Eastern District said in a statement. “Particularly for defendants who have little or no criminal record, ICE detention and removal already amount to a significant punishment.”

Brinkema has challenged the Trump administration’s immigration policies before. She issued a preliminary injunction against the White House’s travel ban on seven majority-Muslim countries in 2017, saying there was “unrebutted evidence” that the order was motivated by “religious prejudice.”

But in immigration cases involving a pattern of bad conduct, she has not shied away from imposing relatively long sentences.

Giving one man with a history of domestic violence and drunken driving a 14-month sentence for recrossing the border illegally, she told him, “You’re a menace when you’re in this country.”

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

Under Trump, Sessions, and now Whitaker, the DOJ is no stranger to promoting prosecutorial abuses. Just think of the unconscionable clogging of US District Courts along the border with minor offenders as part of Sessions’s ill-fated “zero tolerance” policy; the Government’s frivolous anti-sanctuary litigation which they have lost everywhere; the abusive “re-calendaring” of previously properly closed “low priority” removal cases on already overwhelmed Immigration Court dockets; and the illegal and unethical use of “AG certification” to rewrite portions of immigration law that weren’t broken in the first place.

On the flip side, the individual actually involved in this particular case sounds (from the facts presented here) like a “bad actor” who would be an enforcement priority in any Administration. I also appreciate U.S. Attorney’s Terwilliger’s public support of naturalization and legal immigration, something which puts him at odds with some other Administration officials and Trump himself who keeps parroting the nativist “we need cuts to legal immigration” party line.

At least Judge Brinkema gets to speak her mind. By contrast,”captive” U.S. Immigration Judges controlled by the DOJ are “muzzled” when it comes to commenting on the politicized mess that this Administration is causing in the Immigration Courts through “Aimless Docket Reshuffling,” political meddling with the law by biased Attorneys General, and a total lack of discipline or discernible priorities at DHS Enforcement.

Assuming that the Immigration Courts eventually reopen their doors for non-detained cases (the vast, vast majority of the docket), the additional mess and chaos created in an already dysfunctional and mismanaged system though Trump’s mindless and unnecessary shutdown is likely to be irreparable.

PWS

01-10-19

4th Cir. Finds No Nexus In Gang-Based Asylum Case – Cortez-Mendez v. Whitaker

162389.P

Cortez-Mendez v. Whitaker, 4th Cir., 01-07-19, Published

PANEL: WILKINSON and AGEE, Circuit Judges, and James P. JONES, United States District Judge for the Western District of Virginia, sitting by designation.

OPINION BY:  Judge Agee

KEY QUOTE:

Cortez-Mendez disputes the IJ and BIA’s conclusion that he was threatened because of “general criminal gang activity” in his hometown. A.R. 3; see A.R. 65–66. He asserts the gangs persecuted him because his father’s disabilities caused Cortez-Mendez to be poor, “vulnerable,” and “an easy mark [without] the backing and advice of a father.” A.R. 148. Cortez-Mendez argues his persecution was pointedly discriminatory because he “knew many of his persecutors[ ] and had heard them ridicule his father and the rest of his family.” Opening Br. 11; see A.R. 56. We find his arguments unpersuasive.

Cortez-Mendez presented no direct or circumstantial evidence that the gangs harassed him “on account of” his father’s disabilities as opposed to his own rejection of gang membership. See 8 U.S.C. § 1101(a)(42). He provided no direct evidence that the gangs intimidated him because he was his father’s son. His only evidence of linkage to his father is that non-gang neighborhood harassers had “made fun of” him because of Marcial Cortez’s disabilities, A.R. 146–47, and the gang members who called his mother in 2005 “remembered [him] as a son of a mute and dumb person,” A.R. 176. Even if either of these groups of taunters knew about Marcial Cortez’s disabilities, it does not follow that they intimidated Cortez-Mendez because of his relation to his disabled father.See Hernandez-Avalos, 784 F.3d at 950 n.7 (“[N]ot . . . every threat that references a family member is made on account of family ties.”).

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Indeed, the circumstantial evidence in the record reflects a different reason for Cortez-Mendez’s harassment: he rejected the gangs’ recruitment efforts. Cortez-Mendez testified that he feared the gangs would harm him “if [he] did not become a gangster” or “if [he] did not [agree] to become part of the gangs.” A.R. 175. Substantial evidence supports the IJ’s and BIA’s conclusions that the “neighborhood gangs observed the family’s poverty and concluded they could easily recruit” Cortez-Mendez, A.R. 56, and that it was after Cortez-Mendez refused to join the gangs that they threatened him, A.R. 3–4, 66. Cortez-Mendez even admitted that he left El Salvador because had rejected gang membership: “they kept asking me to join them and be a member of the gang, and that is why I fled.” A.R. 140. At most, Cortez-Mendez demonstrated that the gangs may have targeted him because of his poverty but only threatened him because he would not join their ranks. Flight from gang recruitment is not a protected ground under the INA. See Zelaya v. Holder, 668 F.3d 159, 166–67 (4th Cir. 2012); Matter of S-E-G-, 24 I. & N. Dec. 579, 589 (B.I.A. 2008). Consequently, Cortez-Mendez’s own testimony of his circumstantial fears defeats his argument that a protected ground like his relation to his disabled father was “at least one central reason for” his treatment in El Salvador.Crespin-Valladares, 632 F.3d at 127.

Furthermore, while it is not dispositive, Cortez-Mendez testified that his father and other family members still live in El Salvador and have suffered no harm. Our decision relies on whether Cortez-Mendez—and not some other person—was persecuted because of his relation to his father, see Hernandez-Avalos, 784 F.3d at 950; Crespin-Valladares, 632 F.3d at 127 n.6, but a fact we may consider with the rest is whether other family

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members have been persecuted because of their identical family ties, see Mirisawo, 599 F.3d at 398 (“The fact that family members whose political opinions Mirisawo fears will be imputed to her have not themselves faced harm fatally undermines her claim that she will suffer persecution because of her association with them.”). The evidence in the record that Cortez-Mendez’s family—including his disabled father—remains unharmed suggests that Cortez-Mendez’s relation to his father is not the reason for the persecution he fears.

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

Primarily a failure of proof. Had there been evidence that: (1) the gang’s threats were because of the respondent’s father’s disabled status; (2) his father or other members of the family had been harmed or threatened; or (3) gangs in El Salvador had a particular antipathy toward disabled individuals and their families, the result could have been different.

Still, the fact-based nature of this outcome, and the Fourth Circuit’s carefully articulated analysis, give lie to Session’s attempt to create a “de facto presumption” against the granting of asylum cases based on domestic violence and/or harm from gangs. Each case must be separately analyzed on its facts. That will take considerable time and careful analyses by U.S. immigration Judges and the BIA — the polar opposite of Sessions’s prejudicial “judicial quotas” and his urging that Immigration Judges cut corners by prejudging gang-related cases against respondents as he suggested in Matter of A-B-.

With the backlog growing exponentially by the day as a result of Trump’s mindless shutdown, the Immigration Courts can’t possibly carry out their mission consistently with Due Process as long as they are controlled by politicos like Sessions, Whitaker, and Trump.

HISTORICAL NOTE: Both Miriswano and Crespin-Valladares, cited by the Fourth Circuit cases were my cases when I was at the Arlington Immigration Court.

PWS

01-10-19

MORE PHONY BALONEY FROM LIAR-IN-CHIEF!

https://www.washingtonpost.com/politics/2019/01/09/fact-checking-president-trumps-oval-office-address-immigration/

Salvador Rizzo reports for WashPost:

The first misleading statement in President Trump’s Oval Office address Tuesday night came in the first sentence.

Trump, addressing a national television audience from behind his desk, warned of a “security crisis at the southern border” — even though the number of people caught trying to cross illegally is near 20-year lows.

Another false claim came moments later, when Trump said border agents “encounter thousands of illegal immigrants trying to enter our country” every day, though his administration puts the daily average for 2018 in the hundreds. A few sentences later, he said 90 percent of the heroin in the United States comes across the border with Mexico, ignoring the fact that most of the drugs come through legal entry points and wouldn’t be stopped by the border wall that he is demanding as the centerpiece of his showdown with Democrats.

Over the course of his nine-minute speech, Trump painted a misleading and bleak picture of the situation at the U.S.-Mexico border. He pumped up some numbers, exaggerated the public safety risks of immigration and repeated false claims regarding how to fund a border wall.

The appearance, coming as a partial federal government shutdown resulting from the wall fight enters its third week, underscored the extent to which Trump has relied on false and misleading claims to justify what has long been his signature political issue.

One false claim noticeably absent from the speech was the assertion made by the president and many of his allies in recent days that terrorists are infiltrating the country by way of the southern border. Fact-checkers and TV anchors, including those on Fox News, spent days challenging the truthfulness of the claim.

Below are the truths behind Trump’s claims from the Oval Office address:

“Tonight I am speaking to you because there is a growing humanitarian and security crisis at our southern border.”

By any available measure, there is no new security crisis at the border.

Apprehensions of people trying to cross the southern border peaked most recently at 1.6 million in 2000 and have been in decline since, falling to just under 400,000 in fiscal 2018. The decline is partly because of technology upgrades; tougher penalties in the wake of the 9/11 terrorist attacks; a decline in migration rates from Mexico; and a sharp increase in the number of Border Patrol officers. The fiscal 2018 number was up from just over 300,000 apprehensions at the U.S.-Mexico border for fiscal 2017, the lowest level in more than 45 years.

There are far more cases of travelers overstaying their visas than southern border apprehensions. In fiscal 2017, the Department of Homeland Security reported 606,926 suspected in-country overstays, or twice the number of southern border apprehensions. In fiscal 2016, U.S. officials reported 408,870 southern border apprehensions and 544,676 suspected in-country overstays.


(Kevin Uhrmacher/Washington, D.C.)

While overall numbers of migrants crossing illegally are down, since 2014 more families from El Salvador, Guatemala and Honduras have begun to trek to the United States in search of safer conditions or economic opportunities, creating a humanitarian crisis.

“Record numbers of migrant families are streaming into the United States, overwhelming border agents and leaving holding cells dangerously overcrowded with children, many of whom are falling sick,” The Washington Post reported Jan. 5. “Two Guatemalan children taken into U.S. custody died in December.”

“Every day Customs and Border Patrol agents encounter thousands of illegal immigrants trying to enter our country.”

Southern border apprehensions in fiscal 2018 averaged 30,000 a month (or 1,000 a day). They ticked up in the first two months of fiscal 2019, but it’s a stretch to say “thousands” a day. Better to say “hundreds.”

“America proudly welcomes millions of lawful immigrants who enrich our society and contribute to our nation, but all Americans are hurt by uncontrolled illegal migration. It strains public resources and drives down jobs and wages. Among those hardest hit are African Americans and Hispanic Americans.”

Some context here: In general, economists say illegal immigration tends to affect less-educated and low-skilled American workers the most, which disproportionately encompasses black men and recently arrived, low-educated legal immigrants, including Latinos.

The U.S. Commission on Civil Rights in 2010 found that illegal immigration has tended to depress wages and employment for black men. However, there are other factors at play, and “halting illegal immigration is not a panacea even for the problem of depressed wage rates for low-skilled jobs,” the commission found.

The consensus among economic research studies is that the impact of immigration is primarily a net positive for the U.S. economy and to workers overall, especially over the long term. According to a comprehensive 2016 report by the National Academies of Sciences, Engineering, and Medicine on the economic impacts of the U.S. immigration system, studies on the impact of immigration showed “the seemingly paradoxical result that although larger immigration flows may generate higher rates of unemployment in some sectors, overall, the rate of unemployment for native workers declines.”

“Our southern border is a pipeline for vast quantities of illegal drugs, including meth, heroin, cocaine and fentanyl. Every week, 300 of our citizens are killed by heroin alone, 90 percent of which floods across from our southern border.”

‘There is no crisis’: Three border-town neighbors react to Trump’s wall demand

With a partial wall near their homes, three neighbors in Penitas, Tex., react to President Trump’s call to expand the barrier on the Mexican border.

In 2017, more than 15,000 people died of drug overdoses involving heroin in the United States, according to the Centers for Disease Control and Prevention. That works out to about 300 a week.

But while 90 percent of the heroin sold in the United States comes from Mexico, virtually all of it comes through legal points of entry. “A small percentage of all heroin seized by [Customs and Border Protection] along the land border was between Ports of Entry (POEs),” the Drug Enforcement Administration said in a 2018 report. So Trump’s wall would do little to halt drug trafficking. Trump’s repeated claim that the wall would stop drug trafficking is a Bottomless Pinocchio claim.

“In the last two years, ICE officers made 266,000 arrests of aliens with criminal records, including those charged or convicted of 100,000 assaults, 30,000 sex crimes, and 4,000 violent killings. Over the years, thousands of Americans have been brutally killed by those who illegally entered our country, and thousands more lives will be lost if we don’t act right now.”

Trump warns about dangerous criminals, but the numbers he’s citing involve a mix of serious and nonviolent offenses such as immigration violations. U.S. Immigration and Customs Enforcement reports yearly arrest totals without breaking down the type of offense, which could be anything from homicide to a DUI to illegal entry.

Notice how Trump switches quickly from the 266,000 arrests over two years to charges and convictions: “100,000 assaults, 30,000 sex crimes, and 4,000 violent killings.” In many cases, the people arrested face multiple counts, so that switch gives a confusing picture.

In fiscal 2018, ICE conducted 158,581 administrative arrests for civil immigration violations. The agency’s year-end report says two-thirds (105,140) of those involved people with criminal convictions and one-fifth (32,977) involved people with pending criminal charges. Of the 143,470 administrative arrests in 2017, 74 percent involved people with criminal records and 15.5 percent involved people who had pending charges. But these totals cover all types of offenses — including illegal entry or reentry.

In the fiscal 2018 breakdown, 16 percent of all the charges and convictions were immigration and related offenses.

“Last month, 20,000 migrant children were illegally brought into the United States, a dramatic increase. These children are used as human pawns by vicious coyotes and ruthless gangs.”

No government statistic tracks children smuggled in by bad actors, “coyotes” or drug gangs. What Trump is referring to is CBP’s number for family unit apprehensions, a monthly statistic. The family unit by definition must include at least one parent or legal guardian and one minor. (There’s a separate figure for unaccompanied alien children.)

That number was 25,172 in November, the most recent month for which data are available, but it’s wrong to describe it as a statistic that represents children being smuggled into the country.

Trump describes this as 20,000 children, but it could be many more, considering that some families have multiple children. More important, Trump describes this as children being smuggled in by coyotes or gangs, but border officials screen for false claims of parentage. To imply as Trump does that a child’s mother, father or legal guardian is or hired a smuggler, coyote or gang member in all of these cases is wrong.

“Furthermore, we have asked Congress to close border security loopholes so that illegal immigrant children can be safely and humanely returned back home.”

The Trump administration considers the Flores settlement agreement a loophole. That policy requires the government to release unaccompanied immigrant children who are caught crossing the border within 20 days to family members, foster homes or “least restrictive” settings.

The president also wants to tighten U.S. asylum laws generally and the Trafficking Victims Protection Reauthorization Act, with the goal of restricting some immigrants’ opportunities to file asylum petitions. Trump describes these asylum provisions as “border security loopholes,” but supporters call them core provisions of U.S. laws that cover refugees.

“Finally, as part of an overall approach to border security, law enforcement professionals have requested $5.7 billion for a physical barrier. At the request of Democrats, it will be a steel barrier rather than a concrete wall.”

Trump suggests that Democrats requested a steel barrier rather than a concrete wall, but the proposed switch to steel was an idea the Trump administration brought up. No Democrats are on record demanding a steel barrier along the U.S.-Mexico border.

“This is just common sense. The border wall would very quickly pay for itself. The cost of illegal drugs exceeds $500 billion a year, vastly more than the $5.7 billion we have requested from Congress.”

Trump tweeted a similar claim in March, citing a study from the Center for Immigration Studies, which supports more restrictive immigration policies. Essentially, the claim that the wall pays for itself turns on three numbers: a) estimated savings from each undocumented immigrant blocked by the wall, b) the total number of undocumented immigrants stopped over 10 years and, and c) the cost of the wall.

It’s (a) $75,000 multiplied by (b) 160,000 to 200,000 equals (c) $12 billion to $15 billion. So, if the wall actually costs $25 billion, the number of undocumented immigrants halted by the wall would need to be doubled, or one has to assume it would take 20 years to earn the money back. But other experts offer different estimates for each of those numbers.

Plus, as we’ve previously reported, the wall would do little to stop drugs from entering the United States, since they primarily come in through legal points of entry, making the cost of illegal drugs irrelevant to this issue.

“The wall will also be paid for indirectly by the great new trade deal we have made with Mexico.”

This is a Four Pinocchio claim. During the campaign, Trump more than 200 times promised Mexico would pay for the wall, which the administration says would cost at least $18 billion. Now he says a minor reworking of the North American Free Trade Agreement (NAFTA) will earn enough money for pay for the wall.

This betrays a misunderstanding of economics. Countries do not “lose” money on trade deficits, so there is no money to earn; the size of a trade deficit or surplus can be determined by other factors besides trade. Congress must still appropriate the money, and the trade agreement has not been ratified.

“Senator Chuck Schumer, who you will be hearing from later tonight, has repeatedly supported a physical barrier in the past, along with many other Democrats. They changed their mind only after I was elected president.”

Schumer, Hillary Clinton and many other Democrats voted for the Secure Fence Act of 2006, which authorized building a fence along nearly 700 miles of the border between the United States and Mexico. But the fence they voted for is not as substantial as the wall Trump is proposing. Trump himself has called the 2006 fence a “nothing wall.”

Michelle Ye Hee Lee and Meg Kelly contributed to this report.

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Here is a good summary of Trump’s “Bogus, Self-Created Non-Emergency” (a/k/a “Fiddling While Rome Burns”) from the WashPost Editorial staff:

https://www.washingtonpost.com/opinions/here-are-some-real-emergencies-none-of-them-requires-the-president-to-turn-into-a-dictator/2019/01/08/7030a93c-1376-11e9-803c-4ef28312c8b9_story.html

January 8 at 4:44 PM

AS CRISES go, the situation along the southern border is certainly a logistical, humanitarian and managerial challenge. Its urgency is accentuated by laws and infrastructure ill-suited to the current flood of families seeking asylum in the United States. But it is not a national emergency, as President Trump has framed it, any more than numerous other challenges we can think of.

The Border Patrol’s average monthly arrests of undocumented immigrants have plummeted by nearly two-thirds from the administration of President George W. Bush to that of Mr. Trump. There is no evidence that terrorists have crossed the frontier illegally from Mexico, as Mr. Trump likes to say. And a wall of the sort the president covets would do little to deter drugs or criminals, most of which enter the country through legal crossing points.

As a legal matter, it’s unclear whether Mr. Trump has the authority to declare an official emergency as a means of diverting funds that would enable the military to build the wall; certainly, he would be challenged in court if he tried it. What is clear is that, as a policy matter, many crises are equally or more deserving of the attention, money and resolve Mr. Trump has focused on the wall.

Start with the opioid addiction epidemic, which the president did designate a national health emergency in the fall of 2017. Unfortunately, there has been limited follow-up from him or his administration since then. Even with more than 70,000 people dying in 2017 from drug overdoses, federal spending remains at levels far short of what experts say is required to fight addiction effectively.

What about fatal motor vehicle crashes, which, despite impressive progress in recent decades, claimed the lives of more than 37,000 people in 2017? That’s more than 100 deaths on average each day — more than twice the rate at which U.S. soldiers were killed during the Vietnam War’s bloodiest year, 1968. A similar number of people died in the United States as a result of firearms in 2016, about two-thirds of them involving suicide. Any other Western democracy would regard that as a bona fide emergency; Mr. Trump barely mentions it.

An excellent case could be made for declaring an emergency over Russian meddling in U.S. elections, the scale and scope of which is only gradually becoming clear. Climate change is a full-blown emergency whose threat to lives and property is poised to rise exponentially.

The right response to all these emergencies would be for Congress and the president together to shape policy responses — not to deny their existence, as Mr. Trump does with climate change, or use them for political gain, as he does with the border. The one emergency Mr. Trump fears is the threat he faces from his own base should it conclude his border-wall promise was a hoax. Thus has the president perverted the public debate and diverted the United States’ gaze from authentic dangers.

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I could have spent all day posting about Trump’s bogus crisis, lies, etc. But, the above two posts really say about all you really need to know about the real facts about the border and Trump’s dishonest attempt to shift attention away from the real crisis he’s caused: The unnecessary and idiotic shutdown of essential Government functions from which it might take us years to recover, if ever! As pointed out by the Post, Trump’s dishonesty and incompetence undermines efforts to address the real problems faced by our nation. That’s going to take some “competence in government” — a feature completely absent from the Trump Administration which has encouraged and implemented “worst practices” at all levels.

I don’t know how we’re going to be able to recruit the “best and brightest” for our Career Civil Service in the future given the way they have been mistreated by Trump and the GOP.

And, Trump’s “kakistocracy,” is a shocking foretaste of what we’re in for in the future if we don’t get some basic competency, decency, and expertise back into our Government Service — at all levels, starting with the top.

PWS

01-09-19

 

PROFESSOR STEPHEN LEGOMSKY IN USA TODAY: Gender Is Clearly a “Particular Social Group” – Congress Must Amend The Law To Insure That Neither Bureaucratic Judges Nor Political Hacks Like Sessions & His Ilk Can Deprive Women & LGBTQ Individuals Of The Protections They Need & Deserve!

https://www.usatoday.com/story/opinion/2019/01/02/gender-related-violence-grounds-asylum-refugee-women-congress-column/2415093002/

When women arrive at our shores asking only that they not be beaten, raped or murdered, delivering them to their tormentors isn’t an option.

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Our asylum laws have some gaping holes. These gaps endanger many groups, but none more so than women and girls who are fleeing domestic violence, honor killings, mass rape in wartime, gang rape by criminal gangs, and other gender-related violence. Congress must explicitly recognize gender-based persecution as a potential asylum ground.

Asylum requires a “well-founded” fear of being persecuted. But not just any persecution will do. The persecution has to occur for one of five specific reasons — your race, your religion, your nationality, your political opinion, or what the law calls your “particular social group.” Gender is notably missing from this list.

That omission is not surprising. U.S. asylum laws, like those of most other western countries, track the language of an international refugee convention that was adopted in 1951. Gender-related violence was simply not on the public radar at that time.

But it is now 2019. The historical excuse will no longer wash. With women’s marches, the MeToo movement, the Brett Kavanaugh confirmation process and women’s stunning midterm electoral successes, gender-related violence is now part of our national consciousness.

Read more commentary:

As a Syrian refugee in US, I watched my country collapse. But there is a path to hope.

Refugees at US-Mexico border are treated like criminals

Bring more refugees to America. They’ll fill vacant jobs and boost our economy.

Without specific congressional recognition of gender-based persecution, women and girls fleeing the most horrific violence imaginable have had to argue that they will be persecuted because of their “particular social group.” Today that is easier said than done. The nation’s highest administrative tribunal that decides asylum claims — the Justice Department’s Board of Immigration Appeals — has been adding more andmore roadblocks to asylum claims that are based on “particular social group.”

This was not always the case. In 1985, the board defined “particular social group” as one in which membership is “immutable.” Gender, of course, meets that definition.

The immutability test makes perfect sense. If you will be persecuted only because of an innocuous characteristic that you can easily change, then you don’t need asylum. But if that characteristic cannot be changed, you have no other practical way to protect yourself. The immutability test thus allows asylum for those who need it and withholds it from those who don’t.

Justice constraints are harmful, irrational

But the board could not leave well enough alone. Along the way it invented two additional requirements. One is “social distinction.” If you claim persecution because of your membership in a “particular social group,” you must now prove that your home society describes that class of individuals as a “group.” Second, you must now prove what the board calls “particularity.” By this it means you must prove that your home society can figure out whether hypothetical other individuals are members of the group.

There are only four problems with those requirements: The board has no convincing legal authority to impose them. No one really understands what they mean. They are nearly impossible to prove. And they make no policy sense: why should the U.S. decision whether to grant asylum to someone depend on whether her home society thinks of the particular class as a “group,” or on whether the home society can tell which other individuals belong to that “group”?

Last June, then-Attorney General Jeff Sessions made this bad situation worse. Overruling board precedent, he announced that, henceforth, anyone fleeing domestic violence (or, for that matter anyone fleeing gang violence) will “generally” be unable to prove either social distinction or particularity and therefore should be denied asylum. Although a federal court has blocked that decision for now, the Supreme Court will likely determine its ultimate fate.

But the problems go beyond that specific case. First, the artificial constraints that the board has imposed for all claims based on “particular social group” are both harmful and irrational. Second, it is only because gender is not on Congress’s list of specifically protected grounds that women and girls have had to fit their claims into “particular social group” in the first place.

Women would still prove need for asylum

What arguments could possibly be made for protecting people from racial or religious persecution but not from gender persecution?

Perhaps the fear is that domestic violence is too endemic, that allowing asylum would open the floodgates. We need not worry, for a woman or girl fleeing domestic violence has multiple legal burdens that minimize the numbers: She must prove that her fear is both genuine and well-founded, that the harm she fears is severe, that her government is unable or unwilling to protect her, that no place anywhere in her country would be safe, and — even if gender is added to the list — that the persecution will be inflicted because of her gender. These are all high bars, and proof requires meticulous, persuasive documentation. Canada has recognized domestic violence asylum claims since the 1990s, and no floodgates have opened.

The U.S. cannot singlehandedly eradicate all violence against women and girls — even here at home. But we can at least avoid being an accomplice. When women and girls arrive at our shores asking only that they not be beaten, raped or murdered, delivering them to their tormentors is not an option. Congress should restore the original meaning of “particular social group,” and it should recognize that gender, like race and religion, belongs in the list of specifically protected grounds.

Stephen Legomsky is a professor emeritus at the Washington University School of Law, the principal author of “Immigration and Refugee Law and Policy,” and the former Chief Counsel of US Citizenship and Immigration Services in the Obama Administration.

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Steve is absolutely right! This needs a legislative solution. And, while they are at it, Congress also needs to insulate the Immigration Court against future bureaucratic and political shenanigans by creating an independent Article I Immigration Court with a merit-based judicial selection system.

Not coincidentally, the BIA added the intentionally unduly restrictive “particularity” and “social distinction” (formerly “social visibility”) requirements (remarkably, without dissent or even full en banc treatment) only after a group of BIA Judges, including me, who understood both asylum law and women’s rights, and weren’t afraid to vote accordingly, had been removed by Attorney General Ashcroft in a bogus and disingenuous politically motivated “downsizing” following the election of President George W. Bush in 2000. Since then, asylum seekers generally have had a hard time finding justice at the “captive” and politically controlled BIA.

And, the situation has become critical following the tenure of the White Nationalist, misogynist political hack Jeff Sessions as Attorney General. Sessions abandoned even the pretense of fairness, deliberation, impartiality, and judicial temperament in his anti-asylum, anti-Due-Process, anti-women campaign to rewrite the law to fit his preconceived White Nationalist xenophobic agenda — one that he (understandably & fortunately) never was able to push through Congress during his tenure as a Senator.

PWS

01-04-19

 

 

 

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

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

6th Cir. Reverses BIA on Res Judicata

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

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

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

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

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

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

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

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

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

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

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

Copyright 2018 Jeffrey S. Chase.  All rights reserved.

Notes

  1. 27 I&N Dec. 178 (BIA 2017).
  2. Matter of M-J- (unpublished decision, June 15, 2018).
  3. See, e.g. Pereira v. Sessions, 138 S.Ct. 2105, 2121 (Kennedy, J., concurring).

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

 

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Jeffrey S. Chase is an immigration lawyer in New York City.  Jeffrey is a former Immigration Judge, senior legal advisor at the Board of Immigration Appeals, and volunteer staff attorney at Human Rights First.  He is a past recipient of AILA’s annual Pro Bono Award, and previously chaired AILA’s Asylum Reform Task Force.

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Jeffrey and I agree that the Circuit Courts like the 6th are finally taking a long-overdue more critical approach to giving the BIA so-called “Chevron deference.”  By now, the Article III Courts should be catching on that the BIA recently has been stretching statutory interpretation in any way possible to favor the DHS’s view in almost all published cases. This is even when the alternate interpretation offered by the respondent is closer to the statutory language, would be more practical, and/or would produce a more reasonable outcome.  In most cases, the consequences at stake for the individual respondent are far, far greater than those at stake for the DHS.
And, the concept that clearly biased “know nothing” enforcement zealots like Sessions and Whitaker should be given any deference whatsoever in their political roles as Attorney General is beyond preposterous. The “Supremes-created” doctrine of “Chevron deference” (a/k/a “Judicial Task Avoidance”) was based largely on the assumption of both an objective deliberative administrative process and a high degree of technical expertise. Neither of these apply any more to the BIA, let alone to hacks like Sessions and Whitaker.
I believe that the time has come for the Supremes to overrule “Chevron” and resume doing their primary judicial function of interpreting the law. That, of course, would not prevent the Article III Courts from deferring on a case-by-case to particularly persuasive or well-reasoned agency decisions (so-called “Skidmore deference” which was the predecessor to Chevron) where appropriate. But, even if Chevron deference continues as a general proposition, there are compelling reasons for no longer applying it to administrative adjudications under the immigration laws.
PWS
01-03-19

HAPPY NEW YEAR FROM COURTSIDE! — I Take A Look Forward @ 2019’s Big Immigration Stories

2019 Immigration Stories

  • Dreamer Litigation
  • Asylum Procedures Litigation
  • Continuing Collapse of Immigration Courts
        • More bogus, anti-immigrant, anti-Due Process certification decisions from AG
        • Pereira mess in scheduling
        • Cancellation mess; hundreds of thousands eligible for relief; no plans for adjudication
        • Dockets will continue to be screwed up by failure of responsible enforcement policies by DHS, failure of prosecutorial discretion exercised by virtually all other law enforcement authorities, and mindless, inappropriate “re-docketing” of previously Administratively Closed cases for no particular reason except White Nationalist inspired meanness
        • Massive returns of asylum and other improperly decided cases to Immigration Courts by Article IIIs
    • More deaths, illness, abuses resulting from Trump’s cruel, ill-conceived detention and border policies
    • Mexico and Article IIIs will,”push back” against Administration’s ill-conceived plans to “dump” legitimate asylum seekers over Mexican border
    • Public Charge Controversy
    • TPS Termination & Litigation
      • One of Trump’s dumbest, most unnecessary, & disruptive moves will wreak havoc on the economy and the legal system
    • Lots of fraud, waste, and abuse at DOJ and DHS will be exposed by House Committees
    • Will new AG prove to be “Button Down Version of Jeff Sessions?”

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HAPPY NEW YEAR

 😎👍🏼🍻🍾🏈❄️☃️🥳

PWS

01-01-19