Judicial Review – Page 86 – immigrationcourtside.com

CRISTIAN FARIAS @ NEW YORK MAGGIE – THE HISTORY OF PROSECUTORIAL DISCRETION IN IMMIGRATION GOING ALL THE WAY BACK TO THE “BERNSEN MEMO” – WHY, CONTRARY TO SESSIONS & THE RESTRICTIONISTS, IT IS A SOUND LEGAL CONCEPT – AND WHY THE SUPREMES SHOULD STAY OUT OF THE DACA ISSUE IN THE LOWER COURTS! – PLUS BONUS TRIVIA! – “Who REALLY wrote that four decades old memo?

http://nymag.com/daily/intelligencer/2018/02/scotus-would-be-crazy-to-jump-into-the-daca-dispute.html

Cristian writes:

“The earliest, highest-profile critic of granting an executive reprieve to Dreamers was none other than Justice Antonin Scalia. The plight of young immigrants brought to the United States as children was not something the Supreme Court was concerned with in 2012, but the late justice somehow felt the need to protest, in open court, President Obama’s then weeks-old decision to not deport them for humanitarian reasons. “The president has said that the new program is, quote, the right thing to do, close quote, in light of Congress’ failure to pass the administration’s proposed revision of the immigration laws,” he said as he read from a summary of his partial dissent in Arizona v. United States. That case and decision had nothing to do with Dreamers.

Maybe Scalia’s real qualm was with the sitting president and not the recipients of the Deferred Action for Childhood Arrivals program, better known as DACA. But his broader point, which a Supreme Court majority rejected, was that states should have leeway in enforcing federal immigration laws, since they — and not undocumented immigrants — face the “human realities” of a broken immigration system. The citizens of border states like Arizona “feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy,” Scalia complained. Somewhere, a future President Trump may have been taking notes.

More than five years since that screed, the Supreme Court could soon get a chance to judge the propriety, if not the legality, of Trump’s decision last September to pull the plug on DACA. A federal judge in California in January ordered the reinstatement of the program, reasoning that its rescission rested on a “flawed legal premise” — namely, Jeff Sessions’s paper-thin conclusion that DACA was illegal the moment it was conceived. The judge also rejected as “spin” and “post-hoc rationalization” the Trump administration’s contention that DACA was vulnerable to a legal challenge by Texas and other states, which had threatened Sessions with a lawsuit if he didn’t kill the initiative outright. “The agency action was not in accordance with law because it was based on the flawed legal premise that the agency lacked authority to implement DACA,” wrote the judge, William Alsup, in a ruling that effectively brought DACA back from the dead. Days later, the administration began accepting renewal applications as if the rollback had never happened.

Legal scholars weren’t impressed with the ruling. And Sessions, not one to give up on Trump’s anti-immigrant crusade, then took the “rare step” of appealing Alsup’s decision directly to the Supreme Court — and why not? The Ninth Circuit, Trump’s least favorite appeals court, is unruly, liberal, and anti-Trump, anyway; leapfrogging it seemed the smart thing to do. What’s more, Sessions wanted the justices to act expeditiously — his solicitor general filed an additional request to decide the case before the end of June. Not doing so, he suggested, would be the same as blessing “indefinitely an ongoing violation of federal law being committed by nearly 700,000 aliens.” So much for Trump’s wish to treat Dreamers “with heart.” There was only one problem: The Supreme Court rarely, if ever, lets anyone skip over the regular appeals process. And if Sessions is in such a hurry, why didn’t the administration seek to block Alsup’s ruling rather than comply with it? Last Friday, a coalition that includes the University of California, several states, a local chapter of the SEIU, and a number of Dreamers told the Supreme Court to reject the Trump administration’s request to hear the case. The DACA mess, this alliance broadly contended, is Trump’s and Congress’s to own, and the justices shouldn’t be the ones fixing it, at least not with the urgency Sessions is demanding.

. . . .

The principle of prosecutorial discretion, which is what holds DACA together, was never once discussed by Sessions when he announced the wind-down of DACA. He didn’t even try. Prosecutorial discretion wasn’t some novelty that Napolitano came up with at the time, let alone a quirk of immigration law. In a path-breaking memorandum written some 40 years ago, Sam Bernsen, the general counsel of the now-defunct Immigration and Naturalization Service, advised the agency’s commissioner that the “ultimate source for the exercise of prosecutorial discretion” lies with the inherent powers of the presidency. “Under Article II, Section 1 of the Constitution, the executive power is vested in the President,” Bernsen wrote in what is believed to be the first in a long string of government memos justifying prosecutorial discretion in the immigration realm. “Article II, Section 3, states that the President ‘shall take care that the laws be faithfully executed.’” Ironically, conservatives would later seize on this “take care” language to argue breathlessly that Obama’s immigration actions were an affront to the constitutional text, but no judge took that argument seriously.

Far and wide, executive officers enjoy similar discretion to enforce the law. From the president down to a lowly street cop, every law enforcer, state or federal, exercises some form of prosecutorial discretion over the laws they’re entrusted to oversee. It’s the reason you don’t always get ticketed for jaywalking or pulled over for doing 65 on a 55, even in instances where you happen to do those things in full view of the police: The government has ample discretion to not go after you if it feels you’re a low-priority lawbreaker. Maybe the 75-miles-per-hour driver is the bigger fish. Whichever the case, the decision is, by and large, unchallengeable. “Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all,” wrote Justice Anthony Kennedy in the same immigration ruling that Scalia assailed in 2012. “Discretion in the enforcement of immigration law embraces immediate human concerns,” he added.

Kirstjen Nielsen, the new DHS secretary, and Trump himself have all but conceded the point in recent weeks. In an interview with CBS’s John Dickerson, Nielsen said that it’s “not the policy of DHS” to go after Dreamers who are DACA recipients, even if the current legislative talks fail and the program isn’t renewed. “It’s not going to be a priority of the Immigration and Customs Enforcement to prioritize their removal,” Nielsen clarified, directly contradicting the Department of Justice’s position on DACA before the Supreme Court. (Dreamers and immigration advocates know better than to trust Nielsen’s assurances.) Asked last month if he might extend the arbitrary March 5 end date of the DACA rollback process — which is no longer the end date as a result of Judge Alsup’s ruling — Trump spoke as if he never truly believed, like Sessions did, that deferred action was unlawful: “I certainly have the right to do that if I want.”

In this climate, and with Trump still fielding immigration offers as Congress faces yet another deadline to fund the government, the Supreme Court would be crazy to jump into the DACA controversy. “I think for the Supreme Court to reach down to a district court decision and not allow the normal appellate process to proceed would necessarily, under the circumstances, involve or indicate that the Supreme Court is signaling its involvement in a deeply political matter,” Napolitano told me. Scalia may have felt comfortable criticizing policy choices from the bench, but that doesn’t mean Chief Justice John Roberts and his colleagues have to take the bait. For their own peace of mind and that of Dreamers, the Court is better off staying as far away as possible, and letting Trump take care of the laws that give him broad authority to spare young undocumented immigrants if he really wants to.”

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Read the rest of Cristian’s analysis, including his detailed interview with former DHS Secretary Janet Napolitano, now President of the University of California System and a plaintiff in the District Court case, over at New York at the above link.

SPECIAL BONUS:

From the “archives” here’s a copy of the famous “Bernsen Memo” of July 15, 1976:

Bernsen Memo service-exercise-pd

YOUR TOSSUP IMMIGRATION TRIVIA QUESTION OF THE DAY:

Who actually wrote the “Bernsen Memo?”

(Hint: Look at the bottom of the last page.)

AILA URGES CONGRESS TO CREATE INDEPENDENT ARTICLE I U.S. IMMIGRATION COURT TO REPLACE CURRENT DUE PROCESS TRAVESTY! – “In fact, instead of working to improve the system, DOJ recently announced initiatives that severely jeopardize an immigration judge’s ability to remain independent and impartial. These new policies are designed only to accelerate deportations, further eroding the integrity of the court system.”

RESOLUTION ON IMMIGRATION COURT REFORM AILA Board of Governors Winter 2018

PROPONENT: AILA Executive Committee and AILA EOIR Liaison Committee

Introduction:

Our immigration court system does not meet the standards which justice demands. Chronic and systemic problems have resulted in a severe lack of public confidence in the system’s capacity to deliver just and fair decisions in a timely manner. As a component of the Department of Justice (DOJ), EOIR has been particularly vulnerable to political pressure. Immigration judges, who are currently appointed by the Attorney General and are DOJ employees, have struggled to maintain independence in their decision making. In certain jurisdictions, the immigration court practices and adjudications have fallen far below constitutional norms. Years of disproportionately low court funding levels – as compared to other components of the immigration system such as ICE and CBP – have contributed to an ever-growing backlog of cases that is now well over 600,000.

Despite the well-documented history of structural flaws within the current immigration court system, DOJ and EOIR have failed to propose any viable plan to address these concerns. In fact, instead of working to improve the system, DOJ recently announced initiatives that severely jeopardize an immigration judge’s ability to remain independent and impartial. These new policies are designed only to accelerate deportations, further eroding the integrity of the court system.

RESOLUTION: The Board hereby reaffirms and clarifies its position on immigration court reform as follows:

In its current state, the immigration court system requires a complete structural overhaul to address several fundamental problems. AILA recommends that Congress create an independent immigration court system in the form of an Article I court, modeled after the U.S. Bankruptcy Court. Such an entity would protect and advance America’s core values of fairness and equality by safeguarding the independence and impartiality of the immigration court system.

Below is an outline of the basic features that should be included in the Article I court.

Independent System: Congress should establish an immigration court system under Article I of the Constitution, with both trial and appellate divisions, to adjudicate immigration cases.

This structural overhaul advances the immigration court’s status as a neutral arbiter, ensuring the independent functioning of the immigration judiciary.

Appellate Review:

AILA recommends that the new Article I court system provide trial level immigration courts and appellate level review, with further review to the U.S. Circuit Courts of Appeals and the U.S. Supreme Court. To prevent overburdening Article III courts, it is necessary to include an appellate court within the Article I court system.

Judicial Appointment Process:

AILA recommends the appointment of trial-level and appellate-level judges for a fixed term of no less than 10 years, with the possibility of reappointment. These judges would be appointed by the U.S. Court of Appeals for the federal circuit in which the immigration court resides. The traditional Article I judicial appointment process, which relies on Presidential appointment with Senate confirmation, would be unworkable for the immigration court system and could easily create a backlog in judicial vacancies. The U.S. Bankruptcy Court system, which uses a different appointment process than other Article I courts, is a better model for the immigration court system, due to the comparable size and the volume of cases. Like the U.S. Bankruptcy Court System, which has 352 judges, the immigration court currently has over 300 judges. Traditional Article I courts have far fewer judges than that of the U.S. Bankruptcy Court System. Therefore, AILA recommends a judicial appointment system that closely resembles that of the U.S. Bankruptcy Court.

Hiring Criteria for Judges:

Trial and appellate judges that are selected should be highly qualified, and well-trained, and should represent diverse backgrounds. In addition to ensuring racial ethnic, gender, gender identity, sexual orientation, disability, religious, and geographic diversity, AILA advocates for a recruitment and selection process that is designed to ensure that the overall corps of immigration judges is balanced between individuals with a nongovernment, private sector background, and individuals from the public sector. We believe this balance best promotes the development of the law in the nation’s interest.

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Read the complete report here:

AILA Resolution Passed 2.3.2018

The proposal that U.S. Immigration Judges be appointed by the U.S. Courts of Appeals for renewable 10 year terms is particularly salutary. The current process needs to be professionalized and de-politicized. The U.S. Courts of Appeals are the “primary professional consumers” of the work product of the U.S. Immigration Judges. The U.S. Bankruptcy Court Appointment System recommended by AILA has earned high praise for producing a fair, impartial, merit-based, apolitical judiciary.

The current ridiculous selection and appointment process within the DOJ has two stunning deficiencies.

First, it has become an “insider-only” judiciary. Over the past three Administrations nearly 90% of the newly appointed U.S. Immigration Judges have been from government backgrounds, primarily DHS/ICE prosecutors. Outside expertise, including that gained from representing individuals in Immigration Court, clinical teaching, and working for NGOs and pro bono groups has been systematically excluded from the Immigration Court judiciary, giving it a built-in “one-sided” appearance.

Remarkably, the situation at the appellate level, the Board of Immigration Appeals (“BIA”) has been even worse! No Appellate Immigration Judge/Board Member has been appointed from “outside Government” since 2000, and both of those have long since been removed or otherwise moved on.

Indeed, even sitting (as opposed to “administrative”) U.S. Immigration Judges are seldom appointed or even interviewed for BIA vacancies. There is only one current Appellate Immigration Judge who was appointed directly from the trial court, and that individual had only a modest (approximately three years) amount of trial experience. Thus, a number of sources of what would logically be the most expert and experienced appellate judicial candidates have been systematically excluded from the appointment process at the DOJ.

Second, while the results produced are highly problematic, the DOJ hiring process for U.S. Immigration Judges has been amazingly glacial! According to the Government Accountability Office (“GAO”) the Immigration Judge appointment process during the last Administration took an average of two years! That’s longer than the Senate confirmation process for Article III Judges!

Much of the delay has reportedly been attributed to the slowness of the “background check process.” Come on man! Background checks are significant, but are essentially ministerial functions that can be speeded up at the will of the Attorney General.

It’s not like Eric Holder, Loretta Lynch, or Jeff Sessions were willing to wait two years for background clearance for their other high-level appointees in the DOJ. No, it’s simply a matter of screwed up priorities and incompetence at the highest levels of the DOJ. And, let’s not forget that most of the appointees are already working for the DHS or the DOJ. So they currently have high-level background clearances that merely have to be “updated.”

It should be “child’s play” — a “no-brainer.” When Anthony C. “Tony” Moscato was the Director and Janet Reno was the Attorney General, background checks often were completed for Immigration Judges and BIA Members in less than 60 days. And, if Tony really needed someone on board immediately, he picked up the phone, called “downtown,” and it happened. Immediately! Competence and priorities!

Our oldest son Wick has been private bar member of the U.S. Magistrate Judge Recommendation Committee for the Eastern District of Wisconsin. Their process was much more open, timely, and merit-focused than the current DOJ hiring process (whatever that might actually be) and fairly considered candidates from both inside and outside government.

Also, the slowness of the background check process unfairly prejudices “outside applicants.” Sure, it’s annoying for a “Government insider” to have to wait for clearance. But, his or her job and paycheck continue without problem during the process.

On the other hand, “outside applicants” have to make “business decisions,” — whether to take on additional employees or accept new clients; whether to commit to another year of teaching; whether to accept promotions, etc — that can be “deal breakers” as the process creeps along without much useful feedback from EOIR.

Attorney General Sessions has claimed that he has a “secret process” for expediting appointments. But, so far, except for a “brief flurry” of appointments that were reportedly “already in the pipeline” under Lynch, there hasn’t been much noticeable change in the timelines. Additionally, the process is often delayed because DOJ and EOIR have not planned adequately, and therefore have not acquired adequate space and equipment for new judges to actually start hearing cases.

Government bureaucrats love acronyms (so do I, in case you hadn’t noticed)! There is only one acronym that can adequately capture the current sorry state of administration of the U.S Immigration Courts under DOJ and EOIR administration: “FUBAR!”

And that’s without even getting to the all-out assault on Due Process for vulnerable respondents in the U.S. Immigration Courts being carried out by Jeff Sessions and his minions. According to my information, DOJ/EOIR “management” is pushing Immigration Judges to render twenty-minute “oral decisions;” complete “quotas” of 4-5 cases a day to get “satisfactory” ratings; and not include bond cases, administrative closure, Change of Venue, Credible Fear Reviews, or Motion to Reopen rulings in completions.

Since it takes an experienced Immigration Judge 3-4 hours to do a good job on a “fully contested” asylum decision with oral decision, that’s a “designed to fail” proposal that will undoubtedly lead to cutting of corners, numerous denials of Due Process, and remands from the U.s. courts of Appeals. But despite some disingenuous “rote references” to Due Process, it’s not even an afterthought in Sessions’s plan to turn Immigration Court into “Just Another Whistle Stop on The Deportation Railroad.”

As I say, “Bad ideas never die; they have a life of their own within the bureaucracy.” That’s why we need to get Immigration Courts out of the bureaucracy!

This Congress, which “can barely even tie its own shoes,” so to speak, isn’t likely to get around to creating an Article I Immigration Court. But, every day that the current mal-administered and unfair system remains within the DOJ is a Due Process and fairness disaster. That’s something that even Congress should be concerned about!

Thanks to Attorney (and former Immigraton Judge) Sue Roy of New Jersey for sending me the AILA Resolution.

PWS

02-07-18

NIGHT SHIFT W/ TAL @ CNN – “CLARIFYING” THE UNCLEAR STATUS OF DACA IF CONGRESS PUNTS AGAIN – “It’s Complicated!” — PLUS “BONUS COVERAGE” OF OTHER IMMIGRATION “HOT NEWS” BY TAL & HER CNN COLLEAGUES!

“Intrepid 24-7-365” Immigration Reporter Tal Kopan and her wonderful CNN colleagues provide up to the minute coverage of the latest developments. Thanks, Tal, for all that you and your colleagues do!

Despite fight in Congress over immigration, the DACA deadline is up in the air

By Tal Kopan, CNN

When President Donald Trump ended the Deferred Action for Childhood Arrivals policy, he created a March 5 deadline for protections to end, designed to give Congress time to act to save the program.

But while lawmakers have continued to use the March 5 date as a target, court action and the realities of the program have made any deadline murky and unclear.

As a result, there currently is no date that the protections will actually run out for the roughly 700,000 DACA recipients, young undocumented immigrants who came to the US as children — but there remains a large amount of uncertainty about whether they could disappear at any time.

Trump himself mentioned the March 5 deadline in a tweet Monday.

“Any deal on DACA that does not include STRONG border security and the desperately needed WALL is a total waste of time. March 5th is rapidly approaching and the Dems seem not to care about DACA. Make a deal!”

The original plan proposed by Trump in September was that the Department of Homeland Security would phase out DACA by letting the two-year protections and work permits issued under the program expire without the option to renew them. But the administration allowed anyone with permits that expired before March 5 a one-month window to apply for a renewal, which would reset their two-year clock.

However, 20,000 of the 150,000 eligible to renew didn’t. They were either rejected, unable to pull together the paperwork and $500 fee, or unwilling to trust the government with their personal data and enroll again. Further complicating things, some of those rejections were later reopened after DHS acknowledged that thousands may have had their applications lost in the mail or delivered on time but rejected as late.

Then, in January, a federal court judge issued an order stopping the President’s plan to phase out DACA, and DHS has since resumed processing applications for renewals for all the recipients who had protections in September.

But the administration has also aggressively sought to have the judge’s ruling overturned by a higher court, including the Supreme Court, only adding uncertainty to the situation. If a court were to overturn the judge’s ruling, it could have several outcomes, including letting renewals processed in the interim stand, invalidating all of those renewals or even ending the whole program immediately.

More: http://www.cnn.com/2018/02/06/politics/daca-deadline-march/index.html

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McConnell holds all the cards on next week’s immigration debate, and he’s not tipping his hand

By Tal Kopan and Lauren Fox, CNN

In a week the Senate is supposed to debate and vote on major immigration legislation for the first time in years — and only one person might know what it will look like: Senate Majority Leader Mitch McConnell.

“That, you’d have to check with the leader on,” said Sen. Cory Gardner, R-Colorado, Monday about the process as he left a GOP Senate leadership meeting.

“You’ll have to ask him,” echoed fellow leadership member Sen. John Thune of South Dakota. “He’ll have to decide what he wants to do.”

“Sen. McConnell hasn’t announced his intention,” Majority Whip John Cornyn told reporters.

Lawmakers of both parties told reporters Monday repeatedly they had no idea what the legislation or the process they’d be voting on likely next week would look like.

McConnell promised to turn to immigration on the Senate floor after February 8, the next date that government funding runs out, if broad agreement couldn’t be reached in that time. The promise, which he made on the Senate floor, was instrumental in ending a brief government shutdown last month, with senators of both parties pointing to the pledge for a “fair” floor debate as a major breakthrough.

The reality is, though, that McConnell has a lot of discretion as to how such a vote could go — and as of now, he has not given many clues.

Even in a meeting with White House chief of staff John Kelly, Homeland Security Secretary Kirstjen Nielsen and White House legislative director Marc Short, a source said McConnell “wouldn’t indicate what he’s going to do.”

“Total poker face,” the administration official said. “He’s not going to tip his hand.”

But the group came for the meeting, the official said, to “make sure he hears from the administration.”

On Monday, lawmakers expressed hope that such a deal could come together before the Thursday funding deadline, but wouldn’t call it likely. That tees up a vote next week with an uncertain end.

“Probably if nothing is agreed on this week, which I would not be optimistic will happen, then Mitch’ll call up some bill next week and let everyone get their votes on their amendments and see where it goes,” Thune said. “My assumption is that in the end, something will pass. But I guess we’ll see.”

McConnell’s choices will be instrumental in deciding how the debate goes, lawmakers and experts say, and he has a number of options on how to proceed, from the base bill, to the amendment process.

“There’s a lot of different conversations that continue, I don’t think anyone has narrowed it down to one, two or even three paths at this point,” Gardner said.

Utah Sen. Orrin Hatch, the longest-serving GOP senator, was the only lawmaker who seemed to know how the debate would look.

“I have a pretty good sense. I’ve been through it a hundred times,” he said, laughing. Asked if that meant a mess, he added, still chuckling: “It’s always a mess.”

Plenty more: http://www.cnn.com/2018/02/05/politics/senate-immigration-debate-no-clarity/index.html

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Bonus story: Latest on the drunk driving crash that is shaping up to be a new flashpoint in the immigration debate:

http://www.cnn.com/2018/02/06/politics/colts-drunk-driving-crash-undocumented-immigrant/index.html

Trump: ‘Disgraceful that a person illegally in our country’ killed Colts player in crash

By Tal Kopan and Maegan Vazquez, CNN

Updated 9:43 AM ET, Tue February 6, 2018

Washington (CNN)President Donald Trump on Tuesday said that it was “disgraceful” that an NFL player was killed by a man who police believe is an undocumented immigrant in a suspected drunk driving accident over the weekend.

“So disgraceful that a person illegally in our country killed @Colts linebacker Edwin Jackson. This is just one of many such preventable tragedies. We must get the Dems to get tough on the Border, and with illegal immigration, FAST!” Trump tweeted.

Indianapolis Colts linebacker Edwin Jackson and another man were struck and killed in a suspected drunken driving accident early Sunday morning. Indiana State Police say the man they believe hit them is an undocumented immigrant who has been deported twice.

“My prayers and best wishes are with the family of Edwin Jackson, a wonderful young man whose life was so senselessly taken. @Colts,” Trump said in a second tweet Tuesday morning.

The crash occurred when Jackson and the other man were struck on the shoulder of Interstate 70 in Indianapolis.

Read the complete report from Tal and Meagan at the above link.

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There’s always something “shaking” in the “hot button” world of 21st Century Immigration.

PWS

02-06-18

HON. JEFFREY CHASE: Matter of W-Y-C- & H-O-B- & The Unresolved Tension In Asylum Adjudication! – Plus My Added Commentary On EOIR Training!

https://www.jeffreyschase.com/blog/2018/2/4/the-proper-role-of-immigration-judges-as-asylum-adjudicators

“Feb 4 The Proper Role of Immigration Judges as Asylum Adjudicators

I would like to expand on the topic raised in my response to the BIA’s recent precedent decision in Matter of W-Y-C- & H-O-B-. In the U.S. system, what tensions exist between an immigration judge’s role as an independent judge within an adversarial system, and his or her overlapping role as an adjudicator of asylum claims?

As we all know, the 1980 Refugee Act was enacted to put the U.S. in compliance with the 1951 Convention on the Status of Refugees (to which the U.S. acceded through the 1967 Protocol). For that reason, numerous courts through the years have found the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status to provide “significant guidance in construing the Protocol” and a useful instrument “in giving content to the obligations the Protocol establishes,” as the U.S. Supreme Court stated in INS v. Cardoza-Fonseca. The BIA has referenced the UNHCR Handbook in at least ten precedent decisions, as have numerous circuit courts.

Paragraphs 66 and 67 of the Handbook state the following:

66. In order to be considered a refugee, a person must show well-founded fear of persecution for one of the reasons stated above. It is immaterial whether the persecution arises from any single one of these reasons or from a combination of two or more of them. Often the applicant himself may not be aware of the reasons for the persecution feared. It is not, however, his duty to analyze his case to such an extent as to identify the reasons in detail.

67. It is for the examiner, when investigating the facts of the case, to ascertain the reason or reasons for the persecution feared and to decide whether the definition in the 1951 Convention is met with in this respect… (emphasis added.)

Not surprisingly, this approach is employed by the USCIS Asylum Office. Created in the implementation of the 1990 asylum regulations, the office’s first director, Gregg Beyer, previously worked for UNHCR for more than 12 years. The Asylum Officer Basic Training Manual (“AOBTM”) on the topic of nexus states that although the applicant bears the burden of proving nexus, the asylum officer has an affirmative duty to elicit all relevant information, and “should fully explore the motivations of any persecutor involved in the case.” The AOBTC therefore directs the asylum officer to “make reasonable inferences, keeping in mind the difficulty, in many cases, of establishing with precision a persecutor’s motives.”

The AOBTC also cites the 1988 BIA precedent decision in Matter of Fuentes.1 In that case, the Board held that “an applicant does not bear the unreasonable burden of establishing the exact motivation of a ‘persecutor’ where different reasons for actions are possible. However, an applicant does bear the burden of establishing facts on which a reasonable person would fear that the danger arises on account of” a protected ground.

In Canada, the Immigration and Refugee Board takes the view that “it is for the Refugee Division to determine the ground, if any, applicable to the claimant’s fear of persecution.” The U.S. is unusual, if not unique, among western nations in not also delegating this responsibility to immigration judges. Also, note that the IRB references the “Refugee Division;” like many countries, Canada’s equivalent of immigration courts is divided into immigration and refugee divisions, in recognition of the special obligations and knowledge that asylum determinations require. The U.S. immigration court system does not have a separate refugee determination division; asylum claims are heard by the same judges and under the same conditions as all other types of immigration cases. Furthermore, as noted above, U.S. immigration judges hear cases in an adversarial setting, in which judges assume a passive, neutral role.

The role of asylum adjudicator carries responsibilities that are at odds with the the role of neutral arbiter. Asylum adjudicators are required to share the burden of documenting the asylum claim; the UNHCR Handbook at para. 196 states that “in some cases, it may be for the examiner to use all of the means at his disposal to produce the necessary evidence in support of the application.”2 And, as discussed above, once the facts are ascertained, it is the adjudicator who should identify the reasons for the feared persecution and determine if such reasons bear a nexus to a protected ground.

During the Department of Justice’s asylum reform discussions in the early 1990s, Gregg Beyer stated that the idea of separate asylum judges was considered, but ultimately rejected. To my knowledge, EOIR has never conducted an in-depth analysis of the conflicts between the judge’s responsibilities as an asylum adjudicator and his or her role as a neutral arbiter in adversarial proceedings. I discussed the Board’s incorrect holding in Matter of W-Y-C- & H-O-B- under which genuine refugees may be ordered returned to countries where they will face persecution because the asylum applicants lacked the sophistication to properly delineate a particular social group, a complex legal exercise that many immigration attorneys (and immigration judges) are unable to do. The problem also extends to other protected grounds. Would an unrepresented asylum applicant (who might be a child) understand what an imputed political opinion is? Would most asylum applicants be able to explain that actions viewed as resisting the authority of a third-generation gang such as MS-13 might constitute a political opinion? Regulations should be enacted making it the responsibility of immigration judges to consider these questions. Additionally, immigration judges, BIA Board Members and staff attorneys should be required to undergo specialized training to enable them to identify and properly analyze these issues.

Notes:

1. 19 I&N Dec. 658 (BIA 1988).

2. See also the BIA’s precedent decision in Matter of S-M-J-, 21 I&N Dec. 722 (BIA 1997), which I have referenced in other articles.

Copyright 2017 Jeffrey S. Chase. All rights reserved.

JEFF CHASE

NEW BIA PRECEDENT SAYS DUI “IS A SIGNIFICANT ADVERSE CONSIDERATION IN BOND PROCEEDINGS” & FINDING OF “DANGEROUSNESS” CAN’T BE “OFFSET” BY CLOSE FAMILY & COMMUNITY TIES IN THE U.S. – MATTER OF SINIAUSKAS, 27 I&N Dec. 207 (BIA 2018)

3914–DUI-Bond

Matter of SINIAUSKAS, 27 I&N Dec. 207 (BIA 2018)

BIA HEADNOTE:

“(1) In deciding whether to set a bond, an Immigration Judge should consider the nature and circumstances of the alien’s criminal activity, including any arrests and convictions, to determine if the alien is a danger to the community, but family and community ties generally do not mitigate an alien’s dangerousness.

(2) Driving under the influence is a significant adverse consideration in determining whether an alien is a danger to the community in bond proceedings.”

BIA PANEL: Appellate Immigration Judges MALPHRUS, MULLANE, and GREER

OPINION BY: Judge Garry D. Malphrus

KEY QUOTE:

“The issue in this case is whether the respondent is a danger to the community, and family and community ties generally do not mitigate an alien’s dangerousness. While there may be a situation where a family member’s or other’s influence over a young respondent’s conduct could affect the likelihood that he would engage in future dangerous activity, this is not such a case. The respondent is an adult and has not shown how his family circumstances would mitigate his history of drinking and driving, except to explain that the most recent incident occurred on the anniversary of his mother’s death. The factors that the respondent claims mitigate or negate his dangerousness existed prior to his most recent arrest, and they did not deter his conduct.

We recognize that the Immigration Judge set a significant bond of $25,000, which he said “reflects the seriousness with which this court views the respondent’s repeated conduct.” However, an Immigration Judge should only set a monetary bond if the respondent first establishes that he is not a danger to the community. Matter of Urena, 25 I&N Dec. at 141.

This is not a case involving a single conviction for driving under the influence from 10 years ago. The respondent has multiple convictions for driving under the influence from that period and a recent arrest for the same conduct, which undermines his claim that he has been rehabilitated. Under these circumstances, we are unpersuaded that the respondent has met his burden to show that that he is not a danger to the community. See Matter of Fatahi, 26 I&N Dec. at 793−94. We therefore conclude that he is not eligible for bond. Accordingly, the DHS’s appeal will be sustained, the Immigration Judge’s decision will be vacated, and the respondent will be ordered detained without bond.”

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

As an Immigration Judge, I would have come out the same way the BIA did on this case. I would not have set bond.

For me, that the respondent was arrested again for DUI, ten years after his last of three previous DUI convictions, is telling. It shows me that the problem is a continuing one that has not been solved by passage of time or counseling, that the respondent still hasn’t “gotten the picture” about the dangers of DUI, and, significantly, that I couldn’t trust him not to DUI again or get in some other trouble while out on bond.

Less face it, stressful and traumatic events are a constant occurrence in life, particularly for someone already in Removal Proceedings. Therefore, I wouldn’t “buy” the respondent’s argument that the anniversary of his mother’s death was a “one-timer” that wouldn’t happen again.

What if he loses his job, what if a family member has a medical emergency, what if he has domestic problems — all of these fairly common traumas in our community. Why won’t he react the same way he did to the one-year anniversary of his mother’s death? Also, having a LPR wife, USC daughter, and a possible avenue for legal immigration didn’t seem to “motivate” him to say away from trouble. If he DUIs again while awaiting hearing, it’s on my hands. No thanks.

No, I’d rather have a full hearing on this respondent in detention where I know here won’t get into any more trouble in the meantime. If, after that hearing he qualifies for some relief and the equities outweigh the adverse factors, then so be it. I’d grant the case. But, I wouldn’t trust this guy out on the street on my bond during the several years it might take to get to a case such as this on the Arlington non-detained docket. “Getting to the bottom” of complicated cases like this is the purpose of the Individual Merits Hearings.

That said, if the pending DUI changes were dismissed or he were found “not guilty,” I’d be willing to “revisit” the bond.

So, what’s the danger with the BIA’s decision here. That it will be misread by the DHS or Immigration Judges for things the BIA didn’t hold:

The BIA did not say that bond could never be granted in a DUI case, even where there was a recent arrest;
The BIA also did not say that family and community support could never be a factor in assessing “dangerousness.” On the contrary, the BIA recognized that there could be situations where the influence of family or community members would be a proper factor for the Immigration Judge to consider in assessing dangerousness. For example, I found that having family members or co-workers who would drive the respondent to work and counseling as well as involvement in community or church-based alcohol avoidance groups were often strong predictors that individuals could avoid future alcohol-related problems. But, sadly, in this case, neither family nor past efforts at rehabilitation seem to have worked.

PWS

02-05-18

ANOTHER US JUDGE, THIS TIME IN NJ, CALLS A HALT TO “GONZO” ENFORCEMENT — Now It’s Indonesian Christians In The ICEMEN’s Crosshairs!

http://www.nj.com/news/index.ssf/2018/02/last_minute_court_appeal_halts_deportation_of_indo.html

Ted Sherman reports for NJ Advantage Advance Media for NJ.com:

“A federal judge in Newark on Friday issued a temporary restraining order halting the deportations of two Indonesian Christians taken into custody last week while they were dropping their daughters off for school.

U.S. District Judge Esther Salas issued the order after the ACLU went to court, arguing that the summary deportation of the men violated their due process and deprived them of the opportunity to argue their case for asylum.

“These community members, our neighbors, are entitled to argue their case with the protections of due process, especially when the stakes are life-and-death,” said ACLU-NJ Executive Director Amol Sinha.

Gunawan Liem of Franklin Park and Roby Sanger of Metuchen, who both had pending removal orders, were arrested a week ago without warning by U.S. Immigration and Customs Enforcement, as part of an increasingly aggressive enforcement effort by the Trump Administration targeting illegal immigration.

A third man, Harry Pangemanan, was not home when ICE agents showed up at his house and he sought sanctuary at the Reformed Church of Highland Park, where Rev. Seth Kaper-Dale has long been championing the cause of the Indonesian Christian community.

“This case involves life-and-death stakes and we are simply asking that these longtime residents be given opportunity to show that they are entitled to remain here,” said Lee Gelernt, deputy director of the ACLU Immigrants’ Rights Project. “As in other recent similar cases in Detroit, Boston, Miami and Los Angeles involving mass deportations, we are asking the court to make clear that the fundamental protections of due process apply to non-citizens.”

ICE officials did not immediately respond to a request for comment.

Earlier this week, a federal judge in a similar case in Massachusetts also ordered the government to halt the removal of another group of Indonesian Christians, according to the ACLU, which filed that case too.

The judge ruled that they needed more time to file and receive decisions on motions to re-open their immigration cases over their claims of increasingly perilous conditions for Christians in Indonesia, a predominately Muslim nation.

A sign reads “Let the stay” at The Reformed Church of Highland Park. (Jody Somers | For The Star-Ledger)
According to court documents filed in the New Jersey case, the ACLU sought stays of removal for Liem, Sanger and others to give them a reasonable period of time “to compile and present evidence that would permit them to file motions to reopen their removal cases, including evidence of recent changes in country conditions that make Indonesia increasingly dangerous for Christians.”

In its the complaint against ICE, its Newark director for enforcement and removal, and the Department of Homeland Security, the ACLU said most of those facing detention had U.S. citizen children, and argued their removal would rip apart families.

“They are devout and extremely active in their churches, some in official roles. Many volunteer their time to help disadvantaged members of their local community and beyond: participating in disaster relief efforts and volunteering through their churches,” they said in the complaint.

In a statement, Farrin Anello, senior staff attorney for the ACLU of New Jersey, said the Constitution and laws recognizes that people must not be jailed or deported without an opportunity to seek court review of those harsh actions.

“We are extremely heartened and relieved that Judge Salas has ruled that these families may not be deported while she reviews their case,” she said.

Ted Sherman may be reached at tsherman@njadvancemedia.com. Follow him on Twitter @TedShermanSL. Facebook: @TedSherman.reporter. Find NJ.com on Facebook.

A federal judge in Newark on Friday issued a temporary restraining order halting the deportations of two Indonesian Christians taken into custody last week while they were dropping their daughters off for school.

U.S. District Judge Esther Salas issued the order after the ACLU went to court, arguing that the summary deportation of the men violated their due process and deprived them of the opportunity to argue their case for asylum.

“These community members, our neighbors, are entitled to argue their case with the protections of due process, especially when the stakes are life-and-death,” said ACLU-NJ Executive Director Amol Sinha.

Gunawan Liem of Franklin Park and Roby Sanger of Metuchen, who both had pending removal orders, were arrested a week ago without warning by U.S. Immigration and Customs Enforcement, as part of an increasingly aggressive enforcement effort by the Trump Administration targeting illegal immigration.

A third man, Harry Pangemanan, was not home when ICE agents showed up at his house and he sought sanctuary at the Reformed Church of Highland Park, where Rev. Seth Kaper-Dale has long been championing the cause of the Indonesian Christian community.

“This case involves life-and-death stakes and we are simply asking that these longtime residents be given opportunity to show that they are entitled to remain here,” said Lee Gelernt, deputy director of the ACLU Immigrants’ Rights Project. “As in other recent similar cases in Detroit, Boston, Miami and Los Angeles involving mass deportations, we are asking the court to make clear that the fundamental protections of due process apply to non-citizens.”

ICE officials did not immediately respond to a request for comment.

Earlier this week, a federal judge in a similar case in Massachusetts also ordered the government to halt the removal of another group of Indonesian Christians, according to the ACLU, which filed that case too.

The judge ruled that they needed more time to file and receive decisions on motions to re-open their immigration cases over their claims of increasingly perilous conditions for Christians in Indonesia, a predominately Muslim nation.

A sign reads “Let the stay” at The Reformed Church of Highland Park. (Jody Somers | For The Star-Ledger)
According to court documents filed in the New Jersey case, the ACLU sought stays of removal for Liem, Sanger and others to give them a reasonable period of time “to compile and present evidence that would permit them to file motions to reopen their removal cases, including evidence of recent changes in country conditions that make Indonesia increasingly dangerous for Christians.”

In its the complaint against ICE, its Newark director for enforcement and removal, and the Department of Homeland Security, the ACLU said most of those facing detention had U.S. citizen children, and argued their removal would rip apart families.

“They are devout and extremely active in their churches, some in official roles. Many volunteer their time to help disadvantaged members of their local community and beyond: participating in disaster relief efforts and volunteering through their churches,” they said in the complaint.

In a statement, Farrin Anello, senior staff attorney for the ACLU of New Jersey, said the Constitution and laws recognizes that people must not be jailed or deported without an opportunity to seek court review of those harsh actions.

“We are extremely heartened and relieved that Judge Salas has ruled that these families may not be deported while she reviews their case,” she said.

Ted Sherman may be reached at tsherman@njadvancemedia.com. Follow him on Twitter @TedShermanSL. Facebook: @TedSherman.reporter. Find NJ.com on Facebook.

issued the order after the ACLU went to court, arguing that the summary deportation of the men violated their due process and deprived them of the opportunity to argue their case for asylum.

“These community members, our neighbors, are entitled to argue their case with the protections of due process, especially when the stakes are life-and-death,” said ACLU-NJ Executive Director Amol Sinha.

Gunawan Liem of Franklin Park and Roby Sanger of Metuchen, who both had pending removal orders, were arrested a week ago without warning by U.S. Immigration and Customs Enforcement, as part of an increasingly aggressive enforcement effort by the Trump Administration targeting illegal immigration.

A third man, Harry Pangemanan, was not home when ICE agents showed up at his house and he sought sanctuary at the Reformed Church of Highland Park, where Rev. Seth Kaper-Dale has long been championing the cause of the Indonesian Christian community.

“This case involves life-and-death stakes and we are simply asking that these longtime residents be given opportunity to show that they are entitled to remain here,” said Lee Gelernt, deputy director of the ACLU Immigrants’ Rights Project. “As in other recent similar cases in Detroit, Boston, Miami and Los Angeles involving mass deportations, we are asking the court to make clear that the fundamental protections of due process apply to non-citizens.”

ICE officials did not immediately respond to a request for comment.

Earlier this week, a federal judge in a similar case in Massachusetts also ordered the government to halt the removal of another group of Indonesian Christians, according to the ACLU, which filed that case too.

The judge ruled that they needed more time to file and receive decisions on motions to re-open their immigration cases over their claims of increasingly perilous conditions for Christians in Indonesia, a predominately Muslim nation.

A sign reads “Let the stay” at The Reformed Church of Highland Park. (Jody Somers | For The Star-Ledger)
According to court documents filed in the New Jersey case, the ACLU sought stays of removal for Liem, Sanger and others to give them a reasonable period of time “to compile and present evidence that would permit them to file motions to reopen their removal cases, including evidence of recent changes in country conditions that make Indonesia increasingly dangerous for Christians.”

In its the complaint against ICE, its Newark director for enforcement and removal, and the Department of Homeland Security, the ACLU said most of those facing detention had U.S. citizen children, and argued their removal would rip apart families.

“They are devout and extremely active in their churches, some in official roles. Many volunteer their time to help disadvantaged members of their local community and beyond: participating in disaster relief efforts and volunteering through their churches,” they said in the complaint.

In a statement, Farrin Anello, senior staff attorney for the ACLU of New Jersey, said the Constitution and laws recognizes that people must not be jailed or deported without an opportunity to seek court review of those harsh actions.

“We are extremely heartened and relieved that Judge Salas has ruled that these families may not be deported while she reviews their case,” she said.

Ted Sherman may be reached at tsherman@njadvancemedia.com. Follow him on Twitter @TedShermanSL. Facebook: @TedSherman.reporter. Find NJ.com on Facebook.”

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

Wasting tax dollars, hurting families, dividing communities, teeing off Federal Judges, what more could you ask from the “New American Gestapo?”

PWS

02-04-18

STUPIDITY & CRUELTY BECOME TRADEMARKS OF TRUMP’S ICE – ONE FEDERAL JUDGE IN NY HAD ENOUGH – BLASTS POLICIES AS UNCONSTITUTIONAL!

https://slate.com/news-and-politics/2018/01/ice-is-out-of-control.html

JAMELLE BOUIE reports for Slate:

From right, Rene Bermudez wipes away tears as he holds his 4-year-old daughter Danyca during a protest on behalf of his wife Liliana Cruz Mendez on May 23.

Jim Watson/AFP/Getty Images

“Donald Trump hasn’t created the massive “deportation force” he promised as a candidate for president. But he has done the next best thing—boosting, bolstering, and unleashing the Immigration and Customs Enforcement agency, giving it broad authority to act at its own discretion. The result? An empowered and authoritarian agency that operates with impunity, whose chief attribute is unapologetic cruelty.

Under President Obama, who ramped up immigration enforcement even as he sought to protect large categories of unauthorized immigrants from deportation, ICE was a controversial agency whose practices came under heavy scrutiny from activists and some fellow Democrats. But in the year since Trump’s election, ICE has become something far more sinister: a draconian force for harassing and detaining people who pose no threat to the United States or its citizens.

And in keeping with one of President Trump’s first executive orders, which drastically expanded who the federal government considered a priority for deportation, the most striking aspect of ICE under this administration has been its refusal to distinguish between law-abiding immigrants, whose undocumented status obscures their integration into American life, and those with active criminal records—the “bad hombres” of the president’s rhetoric.

Erasing that distinction is how we get the arrest and detention of Lukasz Niec, a Polish immigrant and green card holder who was brought to the United States as a young child. Last week, ICE agents arrested Niec at his home in Michigan, citing two misdemeanor convictions for offenses that were committed when he was a teenager, according to the Washington Post. Although one of the convictions had been scrubbed from his record, it can still be used to remove him from the country. A practicing physician, Niec now sits in a county jail, awaiting possible deportation.

Niec’s standing as an affluent professional makes him an unusual case. More typical is the plight of Jorge Garcia, a 30-year resident of the United States who was recently deported to Mexico after his arrest by ICE. Married with two American-born children, Garcia was brought to the country as a child. He was working to secure legal status when, following Trump’s election, he was ordered to leave the country. In a statement to CBS News, ICE explained that anyone violating immigration laws “may be subject to immigration arrest, detention and … removal from the United States.” Despite its ability to exercise discretion, ICE has opted for an indiscriminate approach to immigration enforcement, arresting and detaining unauthorized residents regardless of whether they pose a threat to the public.

In its drive to remove as many undocumented residents as possible, ICE has begun deporting immigrants who make routine check-ins to their offices, even if those people are simply awaiting visas or green cards that would allow them to stay. Vice News recounts the story of Andre Browne, a Barbados native married to an American citizen. At a recent check-in with ICE agents, he was “arrested and forced to surrender all personal belongings.” He was jailed and now faces deportation. Similarly, in Virginia, a mother of two, Liliana Cruz Mendez, was detained following her regular check-in with immigration officials. Her offense? A traffic misdemeanor.

ICE’s tactics can have life-changing effects, even when its targets are spared deportation. The New Yorker tells of Alejandra Ruiz, brought to the United States as an infant. Last March, she was arrested by ICE agents citing a deportation order issued when she was a toddler. She was shackled and sent to an immigrant-detention facility operated by a private-prison firm. Ruiz was eventually released—she had filed a motion to reopen her childhood case for asylum—but it came at the cost of her livelihood: She lost her job as a senior care worker.

In addition to these activities, ICE is ramping up its mass raids in an effort to spread paranoia and uncertainty in cities with large undocumented populations. The agency is deliberately targeting these “sanctuary cities,” hoping to compel cooperation with their newly aggressive enforcement operations. This is all part of a larger strategy to create an atmosphere of fear and desperation for unauthorized immigrants. It’s behind President Trump’s decision to rescind Deferred Action for Childhood Arrivals and end deportation protections for immigrants from Haiti and El Salvador. Vox’s Dara Lind describes it as “a combination of policy and messaging to keep the threat of deportation hanging over immigrants’ heads” meant to make sure “they don’t get too comfortable here because they could be taken at any minute.”

Anti-immigration hard-liners describe these incidents in the bloodless language of “immigration enforcement,” but that obscures the violence and trauma of what’s happening on the ground: ICE is whisking people away to jails or private prisons and then exiling them from their homes and communities with little chance of recourse or recompense. And the pace is only increasing. While the overall number of “border removals”—those caught trying to cross the border—dropped last year, as a result of economic trends and Trump’s hard-line policies, the proportion of “interior removals” undertaken by ICE increased. Most deportations still involve immigrants from a handful of Latin American countries, but “[t]he number of deportees from other nations rose 24 percent in Trump’s first year,” reports NPR.

The administration is still hoping to increase those efforts. A proposal released by the White House last week asked Congress to grant additional funds to hire more ICE agents as part of an overall increase in “border security” that would be effectively traded for a path to citizenship for more than 1 million Dreamers.

It will be up to Democrats to block those additional funds and, perhaps, to build a broader case against ICE and its tactics. Some high-profile Democrats, like Sen. Kamala Harris of California, have already publicly condemned the agency. “ICE raids across the country have torn mothers apart from their children. The raids lack transparency, spread fear, and harm public safety,” she said last year in a Facebook post. More recently, following a report that ICE was planning raids in retaliation to a new California law limiting cooperation between local law enforcement and federal immigration authorities, Harris said that such raids would be “an abhorrent abuse of power.”

Given the extent to which Democrats have helped build the architecture for today’s ICE, Harris’ statements—as well as similar ones by House Minority Leader Nancy Pelosi—may mark the beginning of a new and needed skepticism toward the agency. And if so, then the logic of their critique doesn’t just point toward reform—it points toward a fundamental rethinking of immigration enforcement and a move away from the authoritarianism of ICE as it exists.

What the country needs, in other words, is an honest discussion about whether ICE can be effectively reformed or if it must be abolished and replaced by an agency that can carry out its mission in a more effective and humane way.”

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

Meanwhile, over in the Southern District of New York, U.S. District Judge Katherine B. Forrest had enough of ICE’s “Gonzo” tactics following the mindless arrest of immigration activist Ravi Ragbir. She blasted ICE’s actions in ordering Ragbir’s release to say good-bye to his family and wind up his affairs. Judge Forrest characterized ICE’s actions in detaining Ragbir as “unnecessarily cruel.”

Here is a copy of Judge Forrest’s order in Ragbir v Sessions:

Ravi.Order

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

Useless, counterproductive removals, waste of Government enforcement resources, irrationality, and unnecessary cruelty are, of course, at the heart of the Trump/Sessions/Miller immigration enforcement program. Certainly, the performance of ICE under Trump — not especially good at removing real criminals and threats or any other type of legitimate law enforcement — much better at busting minor offenders and law-abiding community members and sowing terror in ethnic communities — provides a compelling argument that DHS does not need any additional enforcement agents.

Indeed, I have hypothesized that what Trump, Sessions, Miller, and the White Nationalists are really doing is building the DHS into an internal security police force that will be used against all of those the Administration fears or views as opponents of their “Totalitarian-Wannabe State.”

In the meantime, arbitrary use of force and calculated unnecessary cruelty are likely to remain staples of the DHS under Trump. That’s why ICE is fast becoming American’s most loathed, mistrusted, and unprofessional police force. Bouie might well be right. Assuming that America recovers from the Trump regime, unfortunately not necessarily a given, ICE might well need to be abolished and “replaced by an agency that can carry out its mission in a more effective and humane way.”

PWS

01-30-18

SPLIT BIA SPEAKS ON “WAVE THROUGH” – “PLAIN MEANING” APPLIES EXCEPT WHEN IT FAVORS THE RESPONDENT – JUDGE ROGER PAULEY, DISSENTING, APPEARS TO GET IT RIGHT! — MATTER OF CASTILLO ANGULO, 27 I&N DEC. 194 (BIA 2018)

3913

Matter of Castillo Angulo, 27 I&N Dec. 194 (BIA 2018)

BIA HEADNOTE:

“(1) In removal proceedings arising within the jurisdiction of the United States Courts of Appeals for the Fifth and Ninth Circuits, an alien who was “waved through” a port of entry has established an admission “in any status” within the meaning of section 240A(a)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(a)(2) (2012). Tula-Rubio v. Lynch, 787 F.3d 288 (5th Cir. 2015), and Saldivar v. Sessions, 877 F.3d 812 (9th Cir. 2017), followed in jurisdiction only.

(2) In removal proceedings arising outside the Fifth and Ninth Circuits, to establish continuous residence in the United States for 7 years after having been “admitted in any status” under section 240A(a)(2), an alien must prove that he or she possessed some form of lawful immigration status at the time of admission.”

BIA PANEL: Appellate Immigration Judges Greer, O’Connor, & Pauley

OPINION BY: Judge Blair O’Connor

CONCURRING/DISSENTING OPINION: Judge Roger A. Pauley

KEY QUOTE FROM DISSENT:

“I concur in the result, which the majority only reaches because it acknowledges that the decision of the United States Court of Appeals for the Ninth Circuit in Saldivar v. Sessions, 877 F.3d 812 (9th Cir. 2017), which holds that a wave through constitutes an “admission in any status” for purposes of section 240A(a)(2) of the Act, is binding on the Board since this case arises in that circuit. However, unlike the majority, I conclude that both the Ninth Circuit and the Fifth Circuit, whose similar holding in Tula-Rubio v. Lynch, 787 F.3d 288 (5th Cir. 2015), the Ninth Circuit followed, arrived at the correct result, even though, like the majority, I disagree with some aspects of those courts’ reasoning.

. . . .

I therefore respectfully dissent from the majority’s conclusion otherwise and would find that, in any circuit, an alien is eligible to seek cancellation of removal if he or she establishes an admission via a wave through, even if the alien cannot demonstrate the particular lawful status under which admission was authorized, and even if it is later found that he or she had no lawful status at that time.”

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

Gee, to me, “any status” means “any” status. But, hey, I’m just an old retired trial judge who in ancient time was Chair of the BIA. What would I know about “modern” concepts of statutory interpretation at the BIA?

For a quasi-judicial body that 1) often gets carried away with obtuse linguistic analysis, and 2) claims to see its role as maintaining nationwide consistency, it seems odd that the BIA has gone out of its way to a) rewrite the statute to its own liking, and 2) create a Circuit conflict where none previously existed.

The best way of understanding it is probably “doing what’s necessary to get to ‘no” for respondents not fortunate enough to be in the 9th or 5th Circuits.

My compliments to Judge Pauley for 1) having the backbone, and 2) caring enough to file a separate opinion that better follows the statutory language, produces a much better practical result, and, not surprisingly, is much closer to what the only Article III Courts to address this particular issue already have decided.

PWS

01-30-18

9th SLAMS DUE PROCESS DOOR ON ENDANGERED HONDURAN TEEN — FLAWED ASYLUM HEARING WAS “GOOD ENOUGH FOR GOVERNMENT WORK” — NO RIGHT TO APPOINTED COUNSEL! — C.J.L.G. V. SESSIONS!

9th-CJLG-Consel

C.J.L.G. v. Sessions, 9th Cir., 01-29-18, published

PANEL: Consuelo M. Callahan and John B. Owens,
Circuit Judges, and David A. Faber,* District Judge.

* The Honorable David A. Faber, United States District Judge for the Southern District of West Virginia, sitting by designation.

OPINION BY: Judge Callahan

CONCURRING OPINION: Judge Owens

SUMMARY BY COURT STAFF:

“The panel denied C.J.L.G.’s petition for review of a Board of Immigration Appeals decision, holding that neither the Due Process Clause nor the Immigration & Nationality Act creates a categorical right to court-appointed counsel at government expense for alien minors, and concluding that the Board’s denial of asylum, withholding of removal, and relief under the Convention against Torture was supported by substantial evidence.
The panel held that it is not established law that alien minors are categorically entitled to government-funded, court-appointed counsel and, applying the three-part test set forth in Mathews v. Eldridge, 424 U.S. 319 (1976), held that C.J. had not shown a necessity for such counsel to safeguard his due process right to a full and fair hearing.
The panel incorporated its analysis of C.J.’s asylum claim into its Mathews analysis in determining that C.J. was not prejudiced by any procedural deficiencies in his proceeding. The panel concluded that the record compelled a finding that C.J. had a well-founded fear of persecution based on threats he received from the Mara gang when he resisted their recruitment efforts, but rejected C.J.’s asylum claim because he had not established that the threats had a nexus to a protected ground, or that the government was unable or unwilling to control the Maras. The panel deemed waived any argument that he was denied due process on his withholding and CAT claims, but noted that his withholding claim would also fail.
The panel also rejected C.J.’s argument that the INA’s fair hearing provision, § 1229a(b)(4)(B), implicitly requires court-appointed counsel at government expense for all alien minors.
The panel further held that the IJ was not required to inform C.J. that he might be eligible for Special Immigrant Juvenile status, concluding that the IJ’s duty to inform aliens of “apparent eligibility” for relief was not triggered because, at the time of his removal proceeding, C.J. did not have a state court order that could have made him apparently eligible for SIJ status.
Finally, the panel concluded that the agency’s denial of CAT relief was supported by substantial evidence. The panel concluded that 1) the Board did not err in concluding that C.J.’s experience of having a member of the Maras put a gun to his head did not amount to “severe pain or suffering;” 2) there was no showing that the Honduran government acquiesced in the act; and 3) the record did not compel the conclusion that the government either turned a blind eye to the Maras’ threats or that it would be unable or unwilling to control the Maras in the future.
Concurring, Judge Owens wrote that the majority’s opinion does not hold, or even discuss, whether the Due Process Clause mandates counsel for unaccompanied minors, and observed that that is a different question that could lead to a different answer.
** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.”

KEY QUOTE FROM MAJORITY:

“We are mindful that our decision means that, absent a reprieve offered by the government, C.J. will likely be returned to a country in turmoil. We sympathize with his personal plight, as C.J. appears to have displayed courage in the face of serious adversity. But while “our hearts are with [C.J.],” the law does not support his requested relief. Cf. Dugard v. United States, 835 F.3d 915, 917 (9th Cir. 2016). Neither Supreme Court nor circuit precedent compels the remedy that C.J. seeks: court-appointed counsel at government expense. And to the extent the IJ failed to provide all the trappings of a full and fair hearing, any shortcomings did not prejudice the outcome because the IJ adequately developed the record on issues that are dispositive to C.J.’s claims for relief. Attorney representation could not have altered this reality, which forecloses C.J.’s claim to an implied right to court-appointed counsel under the Due Process Clause. Moreover, the INA itself neither provides for nor implies a right to court-appointed counsel at government expense.

We further hold that the IJ was not required to advise C.J. of a separate state court process that could ultimately form the predicate for C.J.’s application for SIJ status with the IJ. The IJ is only required to advise an alien of relief for which he is “apparent[ly] eligib[le].” Because C.J.’s claimed relief—SIJ status—depends on a state court making certain findings before an IJ may grant him such relief—something that has not occurred here—C.J. is not “apparent[ly] eligib[le]” for SIJ status.
Finally, we decline to reverse the Board’s denial of C.J.’s asylum, withholding of removal, and CAT claims, because substantial evidence supports the Board’s determination that he is ineligible for any such relief.”

CONCURRING OPINION BY JUDGE OWENS:

“I concur in the majority opinion and its narrow scope. It holds that the Due Process Clause does not mandate government-funded counsel for C.J.L.G, an accompanied minor. The opinion does not hold, or even discuss, whether the Due Process Clause mandates counsel for unaccompanied minors. That is a different question that could lead to a different answer. See, e.g., Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 31–32 (1981) (holding that whether the Due Process Clause requires the appointment of counsel is considered on a case-by-case basis); J.E.F.M. v. Lynch, 837 F.3d 1026, 1039–41 (9th Cir. 2016) (McKeown, J., jjoined by M. Smith, J., specially concurring) (outlining unique challenges that unrepresented unaccompanied minors in immigration proceedings confront).”

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

BOTTOM LINE: This kid should join the gang in Honduras to save his life (and the lives of his family), or they should all die. We really don’t care as long as he doesn’t darken our door!
We’re willing to send this teen back to death or a life of forced gang membership after a hearing that none of us, and probably no American citizen, would consider fair or just if it were applied to us or someone we cared about. The key here is not to care about human lives.
It would be easy enough to define “those who resist gang membership” as a “particular social group” entitled to protection under our asylum and related laws. We have just intentionally chosen not to do so to avoid having to give protection to kids like this.
We also have ample authority to exercise Executive discretion to allow individuals in danger in their home countries to remain here in safety even if they don’t satisfy the technical requirements for asylum or withholding of removal. We have just chosen not to do so.
Contrary to the majority’s holding, a lawyer, particularly one who could find “expert” evidence or testimony probably could have secured protection for this young man under the Convention Against Torture (“CAT”). The latest State Department Country Report shows that gang torture is reported in Honduras, that the government and the justice system are inherently corrupt and incompetent, and that criminal justice system often fails to protect citizens.
While perhaps “well-meaning,” Judge Owens concurring opinion suggesting a different result for a “truly unaccompanied” minor is highly disingenuous. From the record, it appears that this kid’s mother was barely literate, (not surprisingly) didn’t understand asylum law, and couldn’t even fill out his application coherently in English. Her lack of understanding that the case depended on (counterintuitively) proving something “other than pure gang recruitment” was at work here actually appears to have undermined his case. If clearly incompetent “assistance” by a lay person like this like this is the dividing line between “due process” and “no due process,” that would be an absurd result!
The panel basically shirks its duty by conferring upon the trial judge, the U.S. Immigration Judge, the responsibility of acting as the unrepresented child’s attorney and developing the record. But, this runs directly counter to the most recent “OPPM” from the Chief Immigration Judge “reminding” Immigration Judges to “maintain neutrality” and not be too helpful to unrepresented minors as they are being railroaded out of the country.
The “Trump/Sessions Deportation Railroad” is up and running. At least this panel of Article III Judges in the 9th Circuit appear anxious to establish themselves as “Just Another Whistle Stop on the Deportation Railroad.”
The blood of this young man and others like him who come seeking protection, only to find rejection based on a twisted hyper-legalistic reading of our laws and an abdication of moral responsibility to protect those in harm’s way will be on our hands as a nation. At some point it will stain. At some point, the stain will become indelible.
As a national policy, telling kids in the Northern Triangle that they have no choice but to join gangs or die is not likely to “solve” the “gang problem” here or there in the short or long run. Essentially, we’ve already demonstrated that. But, nobody is paying attention.

PWS

01-30-18

UPDATES FROM TAL @ CNN: IF NOT DEAD, DACA DEAL ON LIFE SUPPORT, FOLLOWING TRUMP/GOP RESTRCTIONIST ADD-ONS! – Also Unclear How It Could Clear House Given White Nationalist Objections!

“Exclusive: Bipartisan House group unveils new DACA proposal

By Tal Kopan, CNN

A bipartisan group of lawmakers in the House are unveiling Monday their proposal to resolve the immigration standoff in Washington, even as the White House has offered a more conservative plan.

The group of 48 lawmakers, split evenly by party, are calling for their immigration-border security outline to be included in a budget deal that has evaded congressional leadership for months because of the impasse on immigration and other issues.

The Problem Solvers Caucus has worked since last fall to come up with a solution on the Deferred Action for Childhood Arrivals program, which protected young undocumented immigrants who came to the US as children from deportation and which President Donald Trump decided in September to terminate by March 5.

The Problem Solvers proposal resembles an offer from a bipartisan Senate group led by Sens. Lindsey Graham, R-South Carolina, and Dick Durbin, D-Illinois, which was rejected by Trump and has been declared dead in the Senate by GOP leadership.

The White House, meanwhile, last week unveiled its own proposal that would offer a pathway to citizenship for nearly 2 million undocumented immigrants but contains a number of other sweeping immigration changes that met instant resistance from the left.

It’s unclear why the Problem Solvers Caucus proposal would have more success than the Durbin-Graham proposal, but the bipartisan group has been negotiating for months in the hope that if enough rank-and-file members can show consensus across the aisle, it could pick up steam with leadership as an option as funding talks continue without success, and provide a counterpoint to hardline bills pushed by more conservative House Republicans.

More: http://www.cnn.com/2018/01/29/politics/daca-bipartisan-deal-problem-solvers/index.html

Reality sets in that DACA deal might not get done

By Tal Kopan, CNN

After months of rhetoric and negotiations on immigration with the parties barely any closer to each other, the reality is beginning to dawn that there may be no deal to be had.

Stakeholders working toward a deal on the Deferred Action for Childhood Arrivals program, likely including border security, are not giving up hope. But the White House’s and some Republicans’ insistence on adding new restrictions to legal immigration and the left’s opposition could be an insurmountable gap.

The White House on Thursday released its proposed framework for a deal on DACA, a program that protected young undocumented immigrants who came to the US as children that President Donald Trump is terminating as of March 5 but pushing lawmakers to replace.

The proposal did have some concessions to Democrats, including a path to citizenship for an estimated 1.8 million undocumented immigrants, but also included aggressive cuts to legal immigration and a push for enhanced enforcement powers, along with upwards of $25 billion for a wall and other border security. The framework also ends family migration beyond spouses and minor children and abolishes the diversity visa lottery.

The proposal was panned by the left and the right. Groups who support restricting immigration slammed it as “amnesty.” Democratic lawmakers and immigration advocates rejected it as a “massive, cruel and family-punishing overhaul of our current legal immigration system,” as New Jersey’s Sen. Bob Menendez phrased it.

The framework, plus Trump’s earlier rejection of an offer from Senate Minority Leader Chuck Schumer to authorize upwards of $20 billion for a wall and a vulgar rejection of a bipartisan proposal from the Senate “Gang of Six,” could mean that the only option left is a temporary extension of DACA with no future certainty. Some lawmakers have even started mentioning the latter option.

For now a permanent solution for DACA is “dead,” said Leon Fresco, an immigration attorney who led immigration negotiations for Schumer in 2013.

“Thursday pretty much lined it up as the final verdict,” Fresco said. “When Trump proposed something that in orthodoxy was not possible in the Democrat world and got criticized by the right, that was the end of the deal, because how can Trump agree to something more liberal now? … For both sides, the deal is completely unacceptable, so that’s what makes this very complicated.”

One longtime lobbyist on the issue, Randel Johnson, who recently left the US Chamber of Commerce to join the law firm Seyfarth Shaw as a partner, wasn’t quite ready to give up but did acknowledge that neither side may be able to come far enough toward the other to reach a deal.

“I think the danger is both sides begin posturing to their respective bases and both sides will walk away earning brownie points with their bases and get nothing done,” Johnson said.”

More: http://www.cnn.com/2018/01/29/politics/daca-deal-reality/index.html

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In my career, I’ve seen these things “spring back to life.” But given the tortured history of DACA and the White Nationalist agenda driving the GOP restrictionists, I don ‘t see this as being one those times.

I also can’t see the Dems threatening another Government shutdown on this issue.

The “Wildcard” here, at least for the current “Dreamers:” What the Supremes and, perhaps, the lower Federal Courts do with the DACA litigation.

PWS

01-29-18

MAKING GONZO PROUD: BIA TRASHES DUE PROCESS FOR PSG ASYLUM SEEKERS IN NEW PRECEDENT Matter of W-Y-C-& H-O-B-, 27 I&N Dec. 189 (BIA Jan. 19, 2018) — Read Hon. Jeffrey’s Chase’s Commentary Here!

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Matter of W-Y-C-& H-O-B-, 27 I&N Dec. 189 (BIA Jan. 19, 2018)

BIA HEADNOTE:

“(1) An applicant seeking asylum or withholding of removal based on membership in a particular social group must clearly indicate on the record before the Immigration Judge the exact delineation of any proposed particular social group.

(2) The Board of Immigration Appeals generally will not address a newly articulated particular social group that was not advanced before the Immigration Judge.”

PANEL: BIA Appellate Immigraton Judges MALPHRUS, MULLANE, and LIEBOWITZ

OPINION BY: Judge Garry D. Malphrus

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Jan 26 The Impact of the BIA’s Decision in Matter of W-Y-C- & H-O-B-

In Matter of W-Y-C-& H-O-B-, 27 I&N Dec. 189 (BIA Jan. 19, 2018), the Board of Immigration Appeals held that “an applicant seeking asylum…based on membership in a particular social group must clearly indicate on the record before the Immigration Judge the exact delineation of any proposed particular social group.” My question is: “why?”

Delineating a particular social group is very complicated, even for experienced immigration lawyers. When I put together the advanced asylum panel for the 2016 Immigration Judges’ legal training conference, an asylum specialist from the Department of Justice’s Office for Immigration Litigation (“OIL”) chose to lecture the immigration judges on a common error in the crafting of proposed social groups. It is worth noting that OIL (which defends immigration judge decisions when they are appealed to the U.S. circuit courts) felt that immigration judges needed such instruction. Prior to this decision, the BIA had issued 8 precedent decisions defining particular social groups since 2006. Two of those decisions (issued in 2014) were required in order to clear up confusion caused by the language of the previous four decisions on the topic.

When describing the concept of asylum to non-attorney clients, I have completely given up on trying to explain to them what a particular social group is. I’ve noticed that during asylum interviews, the DHS asylum officers have reached the same conclusion; they simply ask the asylum applicants if they were a member of “a group,” with no attempt to explain the unique properties of particular social groups. Let’s also remember that there are many unaccompanied children applying for asylum, and that some are not represented because EOIR has opposed efforts to require the agency to assign them counsel.

The impact of requiring asylum applicants to clearly delineate such a complex term of art is significant. Many of the “surge” cases filed by individuals fleeing violence in Central America are asylum claims based on membership in a particular social group. With some 660,000 cases presently overwhelming the immigration court system, the decision in W-Y-C- & H-O-B- should help speed adjudication by allowing immigration judges and the BIA to issue boilerplate denials where social groups are not clearly delineated, and further prevent time-consuming remands where better defined groups are proposed on appeal (perhaps after a pro se respondent was able to obtain counsel). But at what cost is this efficiency achieved?

Our adversarial system presents court decisions as entailing a winner and loser. However, there are no winners when someone entitled to asylum is nevertheless denied and ordered deported. This point was underscored by a recent article in The New Yorker, documenting that for many, deportation is truly a death sentence (Sarah Stillman, “When Deportation is a Death Sentence,” Jan.18,2018 https://www.newyorker.com/magazine/2018/01/15/when-deportation-is-a-death-sentence).

In a recent blog post concerning the treatment of children in immigration court, I referenced Matter of S-M-J-, a BIA precedent decision from 1997 (21 I&N Dec. 722). The decision contains the following words of wisdom: “Although we recognize that the burden of proof in asylum and withholding of removal cases is on the applicant, we do have certain obligations under international law to extend refuge to those who qualify for such relief.” Noting the shift from the non-adversarial nature of affirmative Asylum Office interviews (then a part of the INS, now within DHS) to the adversarial immigration court proceedings, the Board concluded that “a cooperative approach in Immigration Court is particularly appropriate.”

This approach underscores a major difference between asylum and other types of legal status. A person applying for lawful permanent status through, for example, cancellation of removal or via an immigrant visa is not an LPR until they are granted such status by an immigration judge or DHS. However, as the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status states at paragraph 28, “A person is a refugee within the meaning of the 1951 Convention as soon as he fulfills the criteria contained in the definition…Recognition of his refugee status does not therefore make him a refugee but declares him to be one. He does not become a refugee because of recognition, but is recognized because he is a refugee.”

Paragraph 205 of the UNHCR Handbook delineates the duties of the asylum applicant and the adjudicator. While the applicant’s duties involve truthfully providing detailed facts, supporting evidence where available, and “a coherent explanation of all of the reasons invoked” in his asylum application, the adjudicator, in addition to ensuring that the applicant presents his or her claim as fully as possible and then assessing credibility and evaluating the evidence, must also “relate these elements to the relevant criteria of the 1951 Convention, in order to arrive at the correct conclusion as to the applicant’s refugee status.”

It is this last requirement upon the adjudicator that is at odds with the Board’s decision in W-Y-C- & H-O-B-. Under the decision, an asylum applicant may already have satisfied all of the refugee requirements (which of course includes establishing a well-founded fear of suffering persecution if returned to their country of nationality), yet be denied asylum and ordered deported to suffer serious harm simply because they lacked the legal sophistication to articulate a very complicated formula for delineating a particular social group. Why wouldn’t the present Board invoke a cooperative approach as required by the nature of asylum and its international law obligations, as an earlier BIA did in Matter of S-M-J-? Why shouldn’t the immigration judge (perhaps with assistance from the DHS attorney) step in where the applicant is not able and analyze the facts presented pursuant to the relevant case law to help formulate a particular social group (as some IJs do at present)?

In summary, the Board’s recent decision will allow immigration judges to deny asylum to credible applicants who clearly meet the refugee criteria. By setting a nearly impossible standard for non-attorneys (including children) to meet, it can result in those deserving of protection being sent to countries where they may face rape, torture, or death.

Why?

Copyright 2017 Jeffrey S. Chase. All rights reserved.

JEFF CHASE

REPRINTED WITH PERMISSION

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OK. Let’s make this real simple. As opposed to asylum, which is discretionary, withholding of removal based on fear on account of a “particular social group” is mandatory relief under the Act. The BIA is saying that even if the Respondent were entitled to mandatory withholding of removal based on a “particular social group,” they will refuse that mandatory protection if the respondent failed to articulate each and every specific element of the “PSG” before the Immigration Judge!

And, just how would unrepresented children and other unrepresented individuals, many in detention, be able to articulate all of the complex elements of a PSG? (And that’s even before the Trump/Gonzo/White Nationalist proposal to illegally strip undocumented children of any Due Process rights and let them be deported at will by CBP!)

Clearly, in Matter of W-Y-C-& H-O-B-, the BIA has abandoned any pretense its essential mission of “guaranteeing fairness and due process for all.” I’m sure that becoming “Conductors on Gonzo’s Deportation Railroad” will be career enhancing for the BIA Judges. But, in actuality, they should be ashamed!

And, what are the views of the other dozen or so BIA Appellate Judges who weren’t on this panel. Do they all agree with this travesty of justice? Is there nobody in this “Gang of 15” willing to stand up for Due Process and fairness for vulnerable asylum seekers? It raises the question of “Why have a BIA at all if it can’t and won’t protect fairness and due process for asylum seekers?”

I dissent!

PWS

01-26-18

MORE LAW THAT YOU CAN USE FROM COURTSIDE: DON’T JUST WRING YOUR HANDS AND SPUTTER ABOUT THE TRUMP ADMINISTRATION’S MINDLESS CRUELTY TO HARD WORKING “TPS’ERS!” – Go On Over To LexisNexis & Let Atty Cyrus D. Mehta Tell You Some Ways To Help “TPSers” Achieve Legal Status!

https://www.lexisnexis.com/legalnewsroom/immigration/b/immigration-law-blog/archive/2018/01/22/cyrus-d-mehta-potential-adjustment-of-status-options-after-the-termination-of-tps.aspx?Redirected=true

Here’s a “preview” of what Cyrus has to say:

“Cyrus D. Mehta, Jan. 22, 2018 – “As President Trump restricts immigration, it is incumbent upon immigration lawyers to assist their clients with creative solutions available under law. The most recent example of Trump’s attack on immigration is the cancellation of Temporary Protected Status for more than 200,000 Salvadorans. David Isaacson’s What Comes Next: Potential Relief Options After the Termination of TPS comprehensively provides tips on how to represent TPS recipients whose authorization will soon expire with respect to asylum, cancellation or removal and adjustment of status.

I focus specifically on how TPS recipients can potentially adjust their status within the United States through either a family-based I-130 petition or an I-140 employment-based petition for permanent residency. A September 2017 practice advisory from the American Immigration Council points to two decisions from the Ninth and Sixth Circuit, Ramirez v. Brown, 852 F.3d 954 (9^th Cir. 2017) and Flores v. USCIS, 718 F.3d 548 (6^th Cir. 2013), holding that TPS constitutes an admission for purpose of establishing eligibility for adjustment of status under INA 245(a).”

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Go on over to Dan Kowalski’s fabulous LexisNexis Immigration
Community at the above link to get the rest.

Given the sad saga of the “Dreamers” — whose legalization should have been a “no brainer” for any group other than Trump and the GOP restrictionists — we can’t count on Congress coming to the Haitian and El Salvadoran TPSers “rescue” before their “final extension” expires. So, it’s critical for lawyers to help as many as possible of these great, hard-working folks achieve legal status under existing law before the window closes!

Sadly, one of the key cases cited by Cyrus in his full article, the BIA’s very helpful precedent decision in Matter of Arrabelly and Yerrabelly, 25 I&N Dec. 771 (BIA 2012) is rumored to be on AG Jeff “Gonzo Apocalypto” Sessions’s restrictionist “chopping block.” So, there’s no time to lose!

PWS

01-25-18

GONZO’S WORLD: “APOCALYPTO” REVS UP “NEW CIVIL WAR ON AMERICA” WITH RENEWED ATTACK ON LOCAL LAW ENFORCEMENT — 10th Amendment, Consistent Court Losses, & Common Sense Fail To Deter Scofflaw A.G. — “[T]here is irony in Sessions threatening to withhold law enforcement grants in the name of fighting crime.”

https://www.washingtonpost.com/world/national-security/justice-department-threatens-to-subpoena-records-in-escalating-battle-with-sanctuary-jurisdictions/2018/01/24/984d0fee-0113-11e8-bb03-722769454f82_story.html

Matt Zapotosky reports for the Washington Post:

“The Justice Department on Wednesday escalated its attempt to crack down on so-called “sanctuary” jurisdictions, threatening to subpoena 23 states, cities and other localities that have policies the department suspects might be unlawfully interfering with immigration enforcement.

President Trump and Attorney General Jeff Sessions have long promised to target places with policies friendly to those in the country illegally — warning they might withhold federal money from some and trying to tie grant eligibility to cooperation with federal authorities on immigration matters. The Justice Department had previously contacted the 23 jurisdictions threatened Wednesday, raising worries they might be in violation of a federal law barring places from enacting policies that block communication with Immigration and Customs Enforcement.

In a new letter, Bureau of Justice Assistance Director Jon Adler said officials remained “concerned” that the places had policies that violate the law, even after their previous responses. He asked for a new bevy of documents — including “any orders, directives, instructions, or guidance to your law enforcement employees” — and said the department would subpoena the materials if necessary.

. . . .

Among those jurisdictions in the crosshairs are Chicago, New York City, Los Angeles and the states of California, Illinois and Oregon. In total, the 23 jurisdictions received more than $39 million in fiscal year 2016 money from the Edward Byrne Memorial Justice Assistance Grant Program — which Sessions is now threatening to put at risk.

ADVERTISEMENT

Local leaders criticized the move. New Orleans Mayor Mitch Landrieu (D), president of the U.S. Conference of Mayors, said he would skip a planned White House meeting on infrastructure because of it. “An attack on one of our cities mayors who are following the constitution is an attack on all of us,” he said. His city was not among those targeted Wednesday.

New York City Mayor Bill de Blasio similarly wrote on Twitter he would skip the gathering after Trump’s Justice Department “decided to renew their racist assault on our immigrant communities. It doesn’t make us safer and it violates America’s core values.”

Chicago Mayor Rahm Emanuel (D) said officers in his city endeavor to build trust with residents to reduce public safety threats, and “you cannot do that if you drive a wedge between any immigrant community and the law enforcement.” He said Sessions’s threats were “amazing” in that the attorney general seemed to “disregard what the court system has already said uniformly from coast to coast.”

White House Press Secretary Sarah Huckabee Sanders said: “The White House has been very clear that we don’t support sanctuary cities. We support enforcing the law and following the law, and that is the Department of Justice’s job is to do exactly that, and if mayors have a problem with that, they should talk to Congress.”

Much of this crackdown has been stymied by the courts. A federal judge in California last year blocked Trump’s executive order to cut funding to such places, and a federal judge in Chicago ruled that Sessions had exceeded his authority in imposing new conditions, such as requiring recipients to give immigration authorities access to jails and 48 hours notice when suspected illegal immigrants are to be released. A federal judge in Philadelphia also ruled that city was in compliance with the law and blocked the Justice Department from withholding money. The Justice Department has appealed all those cases.

. . . .

Sessions has long sought to tie crime to immigration — recently releasing data, which experts said was misleading, that said 73 percent of terrorism convictions in the U.S. involved individuals from other countries. Determining a link between illegal immigration and other crime is statistically difficult to do, though some research shows that immigrants are less likely to commit crimes than those who are native born. Civil liberties and immigration advocates, too, note there is irony in Sessions threatening to withhold law enforcement grants in the name of fighting crime.”

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Read the complete article at the link.

On paper, Gonzo isn’t actually in charge of the DHS. That job is nominally in the hands of Lightweight Sycophant Kirstjen Nielsen.

Remarkably, what Sessions is actually supposed to be doing is administering a fair and unbiased U.S. Immigration Court System in a manner that guarantees the legal and Constitutional Due Process rights of each individual brought before those courts by the DHS. Yeah, right! Sessions never met a migrant he didn’t despise and want railroaded out of the country as part of his White Nationalist agenda. And, he’s clearly “in bed” with DHS Enforcement. That’s why the U.S. Immigration Courts under Gonzo Apocalypto are well on their way to becoming mere “Whistle Stops on the Deportation Railway.”

There was a time when what is now ICE worked hard to gain community support and be considered part of the “legitimate law enforcement apparatus.” But, those days are long gone.

Trump, Gonzo, and Tom Homan are well on the way to making ICE the most hated, distrusted, and despised police force in America — the “New American Gestapo” if you will. The aforenamed “nasty clowns” will be gone someday. But, I’m not sure that ICE will ever be able to undo the damage they are doing to its reputation and standing in the law enforcement community.

As one or more Federal Judges has noted in enjoining Gonzo’s illegal overstepping, “once lost, community trust is not easily, if ever, regained by the police.”

PWS

01-25-18

MICHELLE BRANE @ WOMEN’S REFUGEE COMMISSION — “Why I March!”

“Dear Paul,

Today, my daughter Marisa and I joined thousands of women, men, and children in Washington, DC and other cities around the country to march for equality and for justice.

First and foremost on my mind while I marched with my daughter were the migrant and refugee women, children, and families for whom I advocate every day. With each step, I thought about the brave mothers who escape danger in their home countries because, like all mothers, they want a bright future for their children. Expecting to find safety at our border, these women and children are instead met by the Trump administration’s policies of ripping families apart.

I decided to march today in honor of the women and children who reach for safety but are instead betrayed.

The Women’s Refugee Commission will march forward with our important work supporting women and children seeking safety at our border. We will continue to utilize the court systems, inform the press and public, and hold the Trump administration accountable until asylum seekers have the protection and services they need to be safe, healthy, and to rebuild their lives. But there is strength in numbers.

In the spirit of the Women’s March, and the women for whom we march, please join us by donating today.

We can accomplish so much more together than we can alone.

In solidarity,

Michelle Brané
Director, Migrant Rights and Justice Program

DONATE

© 2017 Women’s Refugee Commission. All rights reserved.
The Women’s Refugee Commission is a 501(c)(3) organization.
Donations are deductible to the full extent allowable under IRS regulations.
15 West 37th Street, 9th Floor, New York, NY 10018 • Tel. (212) 551-3115”

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Like me, my friend Michelle began her career as an Attorney Advisor at the BIA. She is also a distinguished alum of Georgetown Law where I am an Adjunct Professor.

The Women’s Refugee Commission does some fantastic work in behalf of vulnerable women and children who arrive at our border seeking refuge and justice, only to be detained and railroaded back to life-threatening conditions by the anti-refugee, anti-Due-Process, White Nationalist regime of Trump, Sessions, Miller, Nielsen, and their complicit minions.

Michelle was named one of the “21 Leaders for the 21st Century” by Women’s e-News.

Imagine what a great country this could be if our Government and our justice system were led by smart, courageous, principled, values-driven, humane leaders like Michelle and her colleagues, rather than by a cabal of morally bankrupt White Nationalist men and their sycophantic subordinates.

PWS

01-22-18

JULIA PRESTON: CHAOS IN COURT! – TRUMP ADMINISTRATION’S MAL-ADMINISTRATION OF IMMIGRATION COURTS RUINS LIVES, FRUSTRATES JUDGES!

https://www.themarshallproject.org/2018/01/19/lost-in-court

Julia writes for The Marshall Project:

“. . . .

And so in this gateway city on the Rio Grande [Laredo], inside a building rimmed with barbed wire, past security guards and locked doors, immigration judges on short details started hearing cases in a cramped courtroom that was hastily arranged in March.

But seven months later, the case of Oscar Arnulfo Ramírez, an immigrant from El Salvador, was not going quickly. He was sitting in detention, waiting for a hearing on his asylum claim. And waiting some more.

The court files, his lawyer discovered, showed that Ramírez’s case had been completed and closed two months earlier. Since the case was closed, the court clerk couldn’t schedule a new hearing to get it moving again. In fact, the clerk didn’t even have a record that he was still detained.

“It’s as if he’s non-existent,” his lawyer,, said. “He’s still in a detention center. He’s still costing the government and the American people tax dollars. But there’s no proceeding going on. He’s just sitting there doing completely nothing.”

Ramírez’s case was one of many signs of disarray in the improvised court in Laredo, which emerged during a weeklong visit in late October by a reporter from The Marshall Project and a radio producer from This American Life. Instead of the efficiency the Trump administration sought, the proceedings were often chaotic. Hearing schedules were erratic, case files went missing. Judges were exasperated by confusion and delays. Like Ramírez, detainees were lost in the system for months on end.

For a view of the border crossing in Laredo and the grinding process migrants begin there, check out Kirsten Luce’s photosfrom the gateway on the Rio Grande.

With the intense pressure on the court to finish cases, immigrants who had run from frightening threats in their home countries were deported without having a chance to tell the stories that might have persuaded a judge to let them stay.

. . . .

For Paola Tostado, the lawyer, Ramírez was not the first client to fall through the cracks in Laredo. Even though she is based in Brownsville, three hours away, Tostado was making the pre-dawn drive up the highway as many as three times a week, to appear next to her clients in court in Laredo whenever she could.

Another Salvadoran asylum-seeker she represented, whose case was similarly mislaid, had gone for four months with no hearing and no prospect of having one. Eventually he despaired. When ICE officers presented him with a document agreeing to deportation, without consulting Tostado he had signed it.

“I’ve had situations where we come to an individual client who has been detained over six months and the file is missing,” she said. “It’s not in San Antonio. It’s not in Laredo. So where is it? Is it on the highway?”

In her attempts to free Ramírez, Tostado consulted with the court clerk in San Antonio, with the ICE prosecutors and officers detaining him, but no one could say how to get the case started again.

Then, one day after reporters sat in the courtroom and spoke with Tostado about the case, ICE released him to pursue his case in another court, without explanation.

But by December Tostado had two other asylum-seekers who had been stalled in the system for more than seven months. She finally got the court to schedule hearings for them in the last days of the year.

“I think the bottom line is, there’s no organization in this Laredo court,” Tostado said. “It’s complete chaos and at the end of the day it’s not fair. Because you have clients who say, I just want to go to court. If it’s a no, it’s a no. If it’s a yes, it’s a yes.”

Unlike criminal court, in immigration court people have no right to a lawyer paid by the government. But there was no reliable channel in Laredo for immigrants confined behind walls to connect with low-cost lawyers. Most lawyers worked near the regular courts in the region, at least two hours’ drive away.

Sandra Berrios, another Salvadoran seeking asylum, learned the difference a lawyer could make. She found one only by the sheerest luck. After five months in detention, she was days away from deportation when she was cleaning a hallway in the center, doing a job she had taken to keep busy. A lawyer walked by. Berrios blurted a plea for help.

The lawyer was from a corporate law firm, Jones Day, which happened to be offering free services. Two of its lawyers, Christopher Maynard and Adria Villar, took on her case. They learned that Berrios had been a victim of vicious domestic abuse. A Salvadoran boyfriend who had brought her to the United States in 2009 had turned on her a few years later when he wanted to date other women.

Once he had punched her in the face in a Walmart parking lot, prompting bystanders to call the police. He had choked her, burned her legs with cigarettes, broken her fingers and cut her hands with knives. Berrios had scars to show the judge. She had a phone video she had made when the boyfriend was attacking her and records of calls to the Laredo police.

The lawyers also learned that the boyfriend had returned to El Salvador to avoid arrest, threatening to kill Berrios if he ever saw her there.

She had started a new relationship in Texas with an American citizen who wanted to marry her. But she’d been arrested by the Border Patrol at a highway checkpoint when the two of them were driving back to Laredo from an outing at a Gulf Coast beach.

After Berrios been detained for nine months, at a hearing in July with Maynard arguing her case, a judge canceled her deportation and let her stay. In a later interview, Berrios gave equal parts credit to God and the lawyers. “I would be in El Salvador by this time, already dead,” she said. “The judges before that just wanted to deport me.”

. . . .

We have heard frustration across the board,” said Ashley Tabaddor, a judge from Los Angeles who is the association [NAIJ] president. She and other union officials clarified that their statements did not represent the views of the Justice Department. “We’ve definitely heard from our members,” she said, “where they’ve had to reset hundreds of cases from their home docket to go to detention facilities where the docket was haphazardly scheduled, where the case might not have been ready, where the file has not reached the facility yet.”

Another association official, Lawrence Burman, a judge who normally sits in Arlington, Va., volunteered for a stint in a detention center in the rural Louisiana town of Jena, 220 miles northwest of New Orleans. Four judges were sent, Burman said, but there was only enough work for two.

“So I had a lot of free time, which was pretty useless in Jena, Louisiana,” Burman said. “All of us in that situation felt very bad that we have cases back home that need to be done. But in Jena I didn’t have any of my files.” Once he had studied the cases before him in Jena, Burman said, he was left to “read the newspaper or my email.”

The impact on Burman’s case docket back in Arlington was severe. Dozens of cases he was due to hear during the weeks he was away had to be rescheduled, including some that had been winding through the court and were ready for a final decision. But with the enormous backlog in Arlington, Burman had no openings on his calendar before November 2020.

Immigrants who had already waited years to know whether they could stay in the country now would wait three years more. Such disruptions were reported in other courts, including some of the nation’s largest in Chicago, Miami and Los Angeles.

“Many judges came back feeling that their time was not wisely used,” Judge Tabaddor, the association president, said, “and it was to the detriment of their own docket.”

Justice Department officials say they are pleased with the results of the surge. A department spokesman, Devin O’Malley, did not comment for this story but pointed to congressional testimony by James McHenry, the director of the Executive Office for Immigration Review. “Viewed holistically, the immigration judge mobilization has been a success,” he said, arguing it had a “positive net effect on nationwide caseloads.”

Justice Department officials calculated that judges on border details completed 2700 more cases than they would have if they had remained in home courts. Officials acknowledge that the nationwide caseload continued to rise during last year, reaching 657,000 cases by December. But they noted that the rate of growth had slowed, to .39 percent monthly increase at the end of the year from 3.39 percent monthly when Trump took office.

Judge Tabaddor, the association president, said the comparison was misleading: cases of immigrants in detention, like the ones the surge judges heard, always take priority and go faster than cases of people out on release, she said. Meanwhile, according to records obtained by the National Immigrant Justice Center, as many as 22,000 hearings in judges’ home courts had to be rescheduled in the first three months of the surge alone, compounding backlogs.

. . . .”

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

Read Julia’s complete article at the above link. Always enjoy getting quotes from my former Arlington colleague Judge Lawrence O. (“The Burmanator”) Burman. He tends to “tell it like it is” in the fine and time-honored Arlington tradition of my now retired Arlington colleague Judge Wayne R. Iskra. And, Judge Iskra didn’t even have the “cover” of being an officer of the NAIJ. Certainly beats the “pabulum” served up by the PIO at the “Sessionized” EOIR!

Also, kudos to one of my “former firms” Jones Day, its National Managing Partner Steve Brogan, and the Global Pro Bono Counsel Laura Tuell for opening the Laredo Office exclusively for pro bono immigration representation, As firms like jones Day take the “immigration litigation field,” and give asylum applicants the “A+ representation” they need and deserve, I predict that it’s going to become harder for the Article III U.S. Courts to ignore the legal shortcomings of the Immigration Courts under Sessions.

A brief aside. My friend Laura Tuell was a “Guest Professor” during a session of my Immigration Law & Policy class at Georgetown Law last June. On the final exam, one of my students wrote that Laura had inspired him or her to want a career embodying values like hers! Wow! Talk about making a difference on many levels!And talk about the difference in representing real values as opposed to the legal obfuscation and use of the legal system to inflict wanton cruelty represented by Sessions and his restrictionist ilk.

We also should recognize the amazing dedication and efforts of pro bono and “low bono” lawyers like Paola Tostado, mentioned in Julia’s report. “Even though she is based in Brownsville, three hours away, Tostado was making the pre-dawn drive up the highway as many as three times a week, to appear next to her clients in court in Laredo whenever she could.” What do you think that does to her law practice? As I’ve said before, folks like Paola Tostado, Christopher Maynard, Adria Villar, and Laura Tuell are the “real heroes” of Due Process in the Immigraton Court system.

Compare the real stories of desperate, bona fide asylum seekers and their hard-working dedicated lawyers being “stiffed” and mistreated in the Immigration Court with Sessions’s recent false narrative to EOIR about an asylum system rife with fraud promoted by “dirty attorneys.” Sessions’s obvious biases against migrants, both documented and undocumented, and particularly against Latino asylum seekers on the Southern Border, make him glaringly unqualified to be either our Attorney General or in charge of our U.S. Immigration Court system.

No amount of “creative book-cooking” by EOIR and the DOJ can disguise the human and due process disaster unfolding here. This is exactly what I mean when I refer to “”Aimless Docket Reshuffling” (“ADR”), and it’s continuing to increase the Immigration Court backlogs (now at a stunning 660,000) notwithstanding that there are now more Immigration Judges on duty than there were at the end of the last Administration.

I’ll admit upfront to not being very good at statistics and to being skeptical about what they show us. But, let’s leave the “Wonderful World of EOIR” for a minute and go on over to TRAC for a “reality check” on how “Trumpism” is really working in the Immigration Courts. http://trac.syr.edu/phptools/immigration/court_backlog/apprep_backlog.php

On September 30, 2016, near the end of the Obama Administration, the Immigration Court backlog stood at a whopping 516,000! Not good!

But, now let go to Nov. 30, 2017, a period of 14 months later, 10 of these full months under the policies of the Trump Administration. The backlog has mushroomed to a stunning 659,000 cases — a gain of 153,000 in less than two years! And, let’s not forget, that’s with more Immigration Judges on board!

By contrast, during the last two full years of the Obama Administration — September 30, 2014 to September 30, 2016 — the backlog rose from 408,000 to 516,000. Nothing to write home about — 108,000 — but not nearly as bad as the “Trump era” has been to date!

Those who know me, know that I’m no “fan” of the Obama Administration’s stewardship over the U.S. Immigration Courts. Wrongful and highly politicized “prioritization” of recently arrived children, women, and families from the Northern Triangle resulted in “primo ADR” that sent the system into a tailspin that has only gotten worse. And, the glacial two-year cycle for the hiring of new Immigration Judges was totally inexcusable.

But, the incompetence and disdain for true Due Process by the Trump Administration under Sessions is at a whole new level. It’s clearly “Amateur Night at the Bijou” in what is perhaps the nation’s largest Federal Court system. And, disturbingly, nobody except a few of us “Immigration Court Groupies” seems to care.

So, it looks like we’re going to have to stand by and watch while Sessions “implodes” or “explodes” the system. Then, folks might take notice. Because the collapse of the U.S. Immigration Courts is going to take a big chunk of the Article III Federal Judiciary with it.

Why? Because approximately 80% of the administrative review petitions in the U.S. Courts of Appeals are generated by the BIA. That’s over 10% of the total caseload. And, in Circuits like the 9th Circuit, it’s a much higher percentage.

The U.S. Immigration Judges will continue to be treated like “assembly line workers” and due process will be further short-shrifted in the “pedal faster” atmosphere intentionally created by Sessions and McHenry. The BIA, in turn, will be pressured to further “rubber stamp” the results as long as they are removal orders. The U.S. Courts of Appeals, and in some cases the U.S. District Courts, are going to be left to clean up the mess created by Sessions & co.

We need an independent Article I U.S. Immigration Court with competent, unbiased judicial administration focused on insuring individuals’ Due Process now! We’re ignoring the obvious at our country’s peril!

PWS

01-20-18

SPECIAL BONUS:

YOUR TOSSUP IMMIGRATION TRIVIA QUESTION OF THE DAY:

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