Litigation – Page 10 – immigrationcourtside.com

🤯 WACKO WORLD OF EOIR: DHS PROSECUTORS DELIVER THE BIG MIDDLE FINGER (“BMF”) 🖕TO GARLAND’S FECKLESS IMMIGRATION “COURTS” — Unilaterally Proclaim They Will No Longer Appear In Every Immigration Court Case (“Selective Appearance”), Apparently Relying On Immigration Judges To Prosecute (In Addition To Being Judge & Jury)! — They Have “Better Things To Do” Than Waste Their Valuable Time In Dem AG’s “Clown Courts!”🤡

PROSECUTORIAL HISTORY: In 897, at the “Cadaver Synod,” Pope Stephen VI appointed himself to prosecute the corpse of his dead predecessor, Pope Formosus. (Spoiler alert: He got a conviction.) In 2023, DHS has decreed that prosecuting cases in person before EOIR is no longer worth their valuable time.
PAINTING: Jean-Paul Laurens (1870) —Public Realm

Provided by a veteran immigration practitioner:

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Notably, the four categories of “mandatory appearance” described by the Deputy Chief Counsel apply to only an infinitesimally small percentage of the roughly 2 million cases currently pending before the Immigration Courts.

Compare this with the treatment of the private bar who experience:

* Aimless reshuffling and rescheduling of their already-prepared cases, often without notice or with inadequate notice of the new hearing date;

* Arbitrary and capricious denials by some Immigration Judges of reasonable motions to continue;

* Possible disciplinary referrals for failure to appear at a scheduled hearing when listed as counsel of record.

Would the DOJ submit a similar missive to U.S. District Court Judges unilaterally announcing that they would only “selectively appear” in criminal and civil cases where the U.S. Government is a party? I doubt it!

So, what’s an Immigration Judge who does not want to perform DHS’s job for them to do? Contempt of court, you say? After all, the IJ’s authority to hold any party or counsel in Immigration Court proceeding in contempt is right there in plain language in the INA. See, INA section 240(b)(1).

Ah, but there is a catch! A big one! Although the contempt provision was added by Congress more than a quarter of century ago, AGs of both parties have steadfastly refused to promulgate the necessary implementing regulations.

Evidently, the theory is that while IJs might be qualified to issue potential death sentences to migrants in Immigration Court, they can’t be trusted to fairly and reasonably use their contempt authority on lawyers who, after all, are mostly U.S. citizens and whose livelihood might be adversely affected. Essentially, the life of a migrant is worth less than a monetary fine for contempt to a U.S. lawyer.

Additionally, there apparently was a special concern about giving IJ’s authority to regulate the conduct of their “fellow Government attorneys” at INS, and later DHS. After all, that would be interfering with another Government agency’s “sacrosanct” authority to regulate and discipline (or not) its own employees.

In many ways, under Garland, the Immigration Courts are losing what limited public respect the might still have possessed and accelerating the move backwards to an “inquisitorial model” to replace the “adversary model” for decison-making. Ironically, this reverses over a half century of efforts by Congress, reformers, and sometimes the Executive itself to make Immigration Courts function as part of the adversary system — in other words, like “real” courts of law.

As one informed expert commenter stated upon learning of this latest development:

As we have all been saying, (1) EOIR doesn’t view itself as part of an ecosystem which also includes ICE, the private bar, non-profits, law school clinics, interpreters, USCIS, etc.; and (2) EOIR is run at it’s upper level by mindless, gutless people suffering from a complete lack of imagination existing in a bubble.

As a practical matter, I assume ICE is strategically choosing not to appear in hearings before IJs who deny everything? If not, it could actually work in your favor. In truth, the UNHCR model doesn’t envision asylum being heard in adversarial hearings; as Paul has articulately stated, it sees asylum as a collaborative effort between adjudicator and asylum seeker.

For a “practical application” of the “collaborative effort” model promoted by the UNHCR, see Matter of S-M-J-, 21 I&N Dec. 722 (BIAS 1997).

🇺🇸 Due Process Forever!

PWS

05-31-23

⚖️🗽🌟 NDPA SUPERSTAR RAED GONZALEZ STUFFS GARLAND IN 5TH CIR., AGAIN!

Dan Kowalski reports for LexisNexis Immigration Community:

https://www.ca5.uscourts.gov/opinions/unpub/21/21-60195.0.pdf

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca5-on-defective-nta-luna-v-garland#

“Dagoberto Luna petitions for review of the Board of Immigration Appeals’ dismissal of his appeal of an immigration judge’s denial of his motion to rescind an in absentia removal order. Luna contends he received a defective Notice to Appear that renders the in absentia removal order invalid. We agree. We GRANT Luna’s petition, VACATE, and REMAND for further proceedings.”

[Hats off yet again to superlitigator Raed Gonzalez!]

Raed Gonzalez ESQUIRE
Chairman, Gonzalez Olivieri LLP
Houston, TX
PHOTO: best lawyers.com

—

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

cell/text/Signal (512) 826-0323

@dkbib on Twitter

dan@cenizo.com

Free Daily Blog: www.bibdaily.com

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When will they learn, when will they ever learn? The ultra-conservative 5th Circuit pays attention when Raed litigates in behalf of individuals seeking due process and fundamental fairness at EOIR. Why doesn’t Garland?

Congrats again, Raed!

🇺🇸 Due Process Forever!

PWS

05-28-23

⚖️ DISSENTING OPINION: Temporary Appellate Immigration Judge Denise G. Brown Says “No” To Colleagues “Go Along To Get Along” With DHS Enforcement Approach To Chevron In Latest “Crime of Violence” Precedent: Matter of POUGATCHEV, 28 I&N Dec. 719 (BIA 2023)

Scales of Justice — The BIA’s approach to statutory interpretation under Chevron tends to be one-sided in favor of DHS Enforcement.
IMAGE: Wikimedia Commons

BIA HEADNOTE:

(1) A conviction for burglary of a building under section 140.25(1)(d) of the New York Penal Law is not categorically an aggravated felony burglary offense under section 101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G) (2018), because the statute is overbroad and indivisible with respect to the definition of “building” under New York law.

(2) A conviction for displaying what appears to be a pistol, revolver, rifle, shotgun, machine gun, or other firearm while committing burglary under section 140.25(1)(d) of the New York Penal Law necessarily involves the use, attempted use, or threatened use of physical force against the person or property of another and therefore constitutes an aggravated felony crime of violence under section 101(a)(43)(F) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(F).

FOR THE RESPONDENT: Yuriy Pereyaslavskiy, Esquire, Albany, New York

FOR THE DEPARTMENT OF HOMELAND SECURITY: Donald W. Cassidy, Associate Legal Advisor

BEFORE: Board Panel: GOODWIN and WILSON, Appellate Immigration Judges. Concurring and Dissenting Opinion: BROWN, Temporary Appellate Immigration Judge.

GOODWIN, Appellate Immigration Judge [majority opinion]

Judge Brown’s Dissent:

CONCURRING AND DISSENTING OPINION: Denise G. Brown, Temporary Appellate Immigration Judge

I respectfully dissent from that portion of the majority opinion that holds that second degree burglary under section 140.25(1)(d) of the New York Penal Law is categorically an aggravated felony crime of violence under section 101(a)(43)(F) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101(a)(43)(F) (2018). As an initial matter, I have reservations that this case is an appropriate means through which to establish binding precedent on this issue as the Immigration Judge did not reach it. While the parties have had an opportunity to address the issue through supplemental briefing, we lack the benefit of the Immigration Judge’s reasoning. It is our role to “review” questions of law de novo, 8 C.F.R. § 1003.1(d)(3)(ii) (2023), but there is no underlying decision regarding whether the respondent was convicted of an aggravated felony crime of violence for us to review here.

Further, I disagree with the majority’s analysis by which it concludes that a violation of section 140.25(1)(d) of the New York Penal Law is categorically a crime of violence. Section 140.25(1)(d) provides that a person is guilty of burglary in the second degree:

when he knowingly enters or remains unlawfully in a building with intent to commit a crime therein, and when

. . . [i]n effecting entry or while in the building or in immediate flight therefrom, he or another participant in the crime

…

. . . [d]isplays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm . . . .

N.Y. Penal Law § 140.25(1)(d) (McKinney 2017). A crime of violence under section 101(a)(43)(F) of the INA, 8 U.S.C. § 1101(a)(43)(F), is “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. § 16(a) (2018).

I disagree with the majority that second degree burglary under section 140.25(1)(d) includes as an element the use, attempted use, or threatened use of physical force against another person. In my view, second degree burglary under section 140.25(1)(d) does not include any element that requires the presence of a person other than the defendant. In the absence of an element that requires the presence of a person, the majority’s conclusion that this offense is a crime of violence is unavailing. See Borden v. United States, 141 S. Ct. 1817, 1825 (2021) (“The phrase ‘against another,’ when modifying the ‘use of force,’ demands that the perpetrator direct his action at, or target, another individual.”).

The majority’s analysis heavily relies on case law involving robbery to support its conclusion that second degree burglary under this subsection is a crime of violence. But under New York law, robbery always involves forcible stealing from a person and burglary does not. In United States v. Ojeda, 951 F.3d 66, 71 (2d Cir. 2020), the Court of Appeals for the Second Circuit rejected the defendant’s argument that it was possible to commit New York first degree robbery with the aggravating factor of the display of an

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Cite as 28 I&N Dec. 719 (BIA 2023) Interim Decision #4063

apparent weapon without the use, attempted use, or threatened use of physical force. The court held that the defendant’s argument ignored the foundational element being aggravated, i.e., forcible stealing, which is defined in New York to include the use or threatened immediate use of physical force upon another person. Id. at 72. Forcible stealing is an element for every degree of robbery in New York and “that element categorically requires the use of physical force.” Id. Thus, New York robbery always includes as an element the use or threatened use of physical force against another person, regardless of whether an apparent weapon is displayed. Accordingly, the New York robbery statutes are distinguishable from the burglary statute at issue here, and thus the case law relied upon by the majority relating to robbery is not persuasive in this context. For the same reason, the case law cited by the majority relating to assault is likewise unpersuasive.

The majority also relies on the definition of “display” in the New York model jury instructions to conclude that a display of an apparent weapon must be in front of a person. The majority concludes that “display” in the context of section 140.25(1)(d) necessarily means a conscious display of an apparent weapon to a victim. “Display” as described by the model jury instructions does not constitute the use, attempted use, or threatened use of physical force against another person because, as the Supreme Court explained in Borden, “against the person of another” means “in opposition to” and expresses “a kind of directedness or targeting” rather than being akin to “waves crashing against the shore.” Borden, 141 S. Ct. at 1825–26. However, the language of the model jury instructions—i.e., describing display to be “manifest[ing] the presence of an object that can reasonably be perceived” as a weapon—does not require the type of directedness or targeting described in Borden. N.Y. Crim. Jury Instr. & Model Colloquies, Penal Law § 140.25(1)(d) (May 2018). The language instead appears to contemplate that a person be “the mere recipient” of the display. Borden, 141 S. Ct. at 1826.

Even if the majority’s conclusion were correct that display of an apparent weapon necessarily contemplates the presence of a person to perceive it and that it necessarily involved conduct directed at another person as contemplated by Borden—a conclusion not supported by the actual language of section 140.25(1)(d)—there is nothing in the statute that requires the person perceiving the display to be the victim of the crime, rather than a bystander or another defendant.

The majority’s conclusion that an offense under section 140.25(1)(d) is categorically a crime of violence also assumes that the crime a defendant intends to commit is necessarily a “confrontational crime.” But there is nothing in the statute that connects the display of an apparent weapon with

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Cite as 28 I&N Dec. 719 (BIA 2023) Interim Decision #4063

the crime the defendant has “intent to commit [in the building],” and thus nothing in the statute that requires the crime a defendant has “intent to commit [in the building]” to be a confrontational crime, as the majority concludes. N.Y. Penal Law § 140.25.

For these reasons, I am not persuaded by the majority’s conclusion that an offense under section 140.25(1)(d) of the New York Penal Law is categorically a crime of violence. I would instead conclude that it is not and that therefore the respondent is not removable as charged.

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Thanks for speaking out, Judge Brown, against the BIA’s one-sided approach to statutory interpretation that almost always favors DHS over better and more reasonable interpretations offered by individuals. Then, the Article III Courts compound the problem by giving “Chevron deference” to the BIA’s one-sided jurisprudence!

Dissent matters!

Here’s Judge Brown’s official EOIR bio:

Denise G. Brown

Attorney General Merrick B. Garland appointed Denise G. Brown as a temporary Appellate Immigration Judge in July 2021. Judge Brown earned a Bachelor of Arts in 1992 from the University of Michigan, Ann Arbor, and a Juris Doctor in 1995 from the Catholic University of America. From July 2007 to July 2021, she has served as an attorney advisor, Board of Immigration Appeals, Executive Office for Immigration Review. During this time, from March to September 2019, she served on detail as a Special Assistant U.S. Attorney, U.S. Attorney’s Office, Eastern District of Virginia, and from January to July 2017, she served on detail as a temporary Immigration Judge at the Headquarters Immigration Court, EOIR. From December 1999 to July 2007, she served as an Associate General Counsel at the Office of General Counsel, Department of the Air Force. Judge Brown is a member of the District of Columbia Bar.

🇺🇸 Due Process Forever!

PWS

05-27-23

🤯☠️ 🤮 👎🏽 WHILE TALKING A “GOOD GAME” ABOUT WOMEN’S RIGHTS, BIDEN ADMINISTRATION ALLOWS MISOGYNY TO RULE @ EOIR — Why Does It Take A Conservative 11th Circuit To Get VAWA Right??? 🤯

Women find “trial by ordeal” can be the order of the day at Garland’s BIA:

Dan Kowalski reports for LexisNexis Immigration Community:

CA11 on VAWA, “Extreme Cruelty,” Chevron: Ruiz v. Atty Gen.

https://media.ca11.uscourts.gov/opinions/pub/files/202210445.pdf

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca11-on-vawa-extreme-cruelty-chevron-ruiz-v-atty-gen#

“Esmelda Ruiz, a native and citizen of Peru, appeals the Board of Immigration Appeals’ determination that she is ineligible for relief under 8 U.S.C. § 1229b(b)(2), a provision whose language was originally adopted as part of the Violence Against Women Act of 1994 and that outlines the conditions under which certain “battered spouse[s] or child[ren]” qualify for discretionary cancellation of removal. As relevant here, it requires a petitioning alien to show that she “has been battered or subjected to extreme cruelty” by her spouse or parent. 8 U.S.C. § 1229b(b)(2)(A)(i). Ruiz contends that the Immigration Judge and the BIA made two errors in refusing her cancellation request. First, she maintains that, as a matter of law, they misinterpreted the statutory term “extreme cruelty” to require proof of physical—as distinguished from mental or emotional—abuse. And second, she asserts that, having misread the law, the IJ and the BIA wrongly concluded that she doesn’t qualify for discretionary relief. We agree with Ruiz that the IJ and the BIA misinterpreted § 1229b(b)(2) and thereby applied an erroneous legal standard in evaluating her request for cancellation of removal. Accordingly, we grant her petition for review and remand to the BIA for further consideration. … For the foregoing reasons, we agree with Ruiz—and hold— that the BIA misinterpreted 8 U.S.C. § 1229b(b)(2). The term “extreme cruelty” does not require a petitioning alien to prove that she suffered physical abuse in order to qualify for discretionary cancellation of removal; proof of mental or emotional abuse is sufficient to satisfy the “extreme cruelty” prong of § 1229b(b)(2)’s five-prong standard. We therefore GRANT the petition in part and REMAND to the BIA for further proceedings consistent with this opinion.”

[Hats way off to Anabella Trujillo! And listen to the oral argument here.]

—

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

cell/text/Signal (512) 826-0323

@dkbib on Twitter

dan@cenizo.com

Free Daily Blog: www.bibdaily.com

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Not only did the supposedly “expert” BIA get the standard completely wrong, but Garland’s OIL continued to throw up specious arguments defending the BIA’s abusive treatment of women!

When you start with “No,” and then “reason” backwards to get there, bad things happen. Frankly, the Biden Administration was elected to “clean house” 🧹 at EOIR and to bring systemic due process, expertise, best practices, and impartiality to our nation’s dysfunctional immigration tribunals — with literally millions of lives and the future of democracy at stake! Why haven’t they done it? How do they continue to get away with it?

🇺🇸 Due Process Forever!

PWS

05-20-23

🤯 BIA’S ANTI-ASYLUM JURISPRUDENCE CONTINUES TO TAKE A BEATING IN CIRCUITS — 1st Cir. Rejects Bogus “Changed Conditions” In Guatemala — 3rd Cir. Says No To BIA’s Bogus Jurisdictional Ruling For Asylee!

Kangaroos — Dems control the composition of one of the most consequential Federal Appellate Tribunals, the BIA. Is THIS really the look that they want to project?
https://www.flickr.com/photos/rasputin243/
Creative Commons License

Dan Kowalski reports for Lexis Nexis Immigration Community:

CA1 on Changed Country Conditions (Guatemala) – Mendez Esteban v. Garland

http://media.ca1.uscourts.gov/pdf.opinions/22-1215P-01A.pdf

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca1-on-changed-country-conditions-guatemala—mendez-esteban-v-garland#

“[T]he 2017 report and the testimony from Mendez do not — together or independently — establish that changes in Guatemala have fundamentally altered the specific conditions that gave rise to Mendez’s substantiated claim of political persecution. Accordingly, the BIA’s conclusion that DHS rebutted Mendez’s presumption of well-founded fear is not supported by substantial evidence. We therefore find Mendez statutorily eligible for asylum. … [W]e grant the petition for review as to Mendez’s claims for asylum and withholding of removal. We deny the petition as to Mendez’s claim for CAT protection. We accordingly affirm the denial of Mendez’s CAT claim, vacate the denials of Mendez’s political opinion-based asylum and withholding of removal claims, and remand to the IJ for further proceedings consistent with this opinion.”

[Hats off to Samuel Brenner, Emma Coreno, Patrick Roath and Rachel Scholz-Bright!]

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CA3 on Jurisdiction: Kosh v. Atty. Gen.

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca3-on-jurisdiction-kosh-v-atty-gen#

“Appellant Ishmael Kosh petitions us to review the order from the Board of Immigration Appeals (“BIA”) that terminated his asylum status and denied his applications for withholding of removal and protection under the Convention Against Torture. He maintains that the Department of Homeland Security (“DHS”) improperly sought to terminate his asylum status in asylum-only proceedings because he first entered the United States under the Visa Waiver Program. Per Kosh, that limiting program no longer applies to him, so he is entitled to complete-jurisdiction removal proceedings instead. In such unlimited proceedings, asylees can raise an adjustment-of-status claim as a defense to removal. We conclude that, if Kosh re-entered the country as an asylee without signing a new Visa Waiver Program form limiting his defenses, he is entitled to complete-jurisdiction proceedings. We thus grant his petition for review, vacate the BIA’s decision, and remand for further proceedings consistent with this opinion.”

[Hats off to Ben Hooper and Jonah Eaton!]

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As many practitioners know, the BIA’s continual bogus “fundamentally changed circumstances” findings for countries where the human rights conditions have remained abysmal for decades, certainly NOT materially improving, and in most cases in the Northern Triangle getting worse, are an endemic problem. Following a finding of past persecution, ICE, not the respondent, bears the burden of proof!

If that burden were honestly and expertly applied, considering individualized fear of harm, ICE would rebut the presumption by a preponderance of the evidence in only a minuscule percentage of cases. Certainly, that was my experience over 21 years on both the trial and appellate benches at EOIR.

Moreover, in this and most other cases of past persecution, even if ICE were able to satisfy its burden of rebutting the presumption of future persecution by a preponderance of the credible evidence, the respondent would be a “slam dunk” for a grant of discretionary asylum on the basis of “other serious harm.” It’s not clear that any of the three judicial entities that considered this case understood and properly applied the “other serious harm” concept.

The BIA’s chronic failure to fulfill its proper role of insuring a fair application of asylum and other protection laws and to provide guidance “shutting down” IJs who routinely manufacture bogus reasons to deny is a systemic denial of due process and failure of judicial professionalism. That it continues to happen under a Dem Administration pledged to restore the rule of law and due process for asylum seekers is astounding, deplorable, and a cause for concern about what today’s Dems really stand for!

This case should have been granted by the IJ years ago. An appeal by ICE on this feeble showing should have been subject to summary dismissal.

That cases like Mendez Esteban are still aimlessly kicking around Garland’s dysfunctional system in an elusive search for justice is a serious indictment of the Biden Administration’s approach to asylum and to achieving long overdue, life-changing, and readily achievable reforms that are within their power without legislative action. It also helps explain why Garland has neither reduced backlogs nor sufficiently improved professionalism, even with many more IJs on the bench.

Practical tips for fighting against bogus “presumption rebuttals” by IJs under 8 CFR 208.13:

Insist that the IJ actually shift the burden to ICE to rebut the presumption of future persecution based on past persecution.
Use the regulatory definition of “reasonably available” internal relocation to fight bogus IJ findings. For example, countries in the Northern Triangle are “postage stamp sized” and plagued by nationwide violence and corruption. The idea of “reasonably available internal location” under all the factors is prima facie absurd! (A “better BIA” would have already pointed this out in a precedent.)
Argue for a discretionary grant of asylum even in the absence of a current well founded fear based on 1) “compelling circumstances” arising out of the past persecution (“Chen grant”), and/or “other serious harm” under the regulations — a much broader concept than persecution that does NOT require nexus to a protected ground.

Knowing and using the law aggressively to assert your client’s rights, making the record, and exhausting all appellate options are the best defenses to biased, anti-asylum, often disconnected from reality denials of life-saving relief to your clients!

🇺🇸 Due Process Forever!

PWS

05-13-23

⚖️🗽🛡⚔️ ON A ROLL — ROUND TABLE ON THE WINNING SIDE FOR THE 3RD TIME @ SUPREMES! — Santos-Zacaria v. Garland — Jurisdiction/Exhaustion — 9-0!

Knightess of the Round Table — Somebody’s listening to our message! Too bad the Biden Administration doesn’t! It would save lots of time, resources, and lives if they did!

https://www.supremecourt.gov/opinions/22pdf/21-1436_n6io.pdf

JUSTICE JACKSON delivered the opinion of the Court.

Under 8 U. S. C. §1252(d)(1), a noncitizen who seeks to challenge an order of removal in court must first exhaust certain administrative remedies. This case presents two questions regarding that statutory provision. For the rea- sons explained below, we hold that §1252(d)(1) is not juris- dictional. We hold further that a noncitizen need not re- quest discretionary forms of administrative review, like reconsideration of an unfavorable Board of Immigration Appeals determination, in order to satisfy §1252(d)(1)’s exhaustion requirement.1

. . . .

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Read the full opinion at the link.

So, why is a Dem Administration under AG Garland taking anti-immigrant positions that can’t even garner a single vote on the most far-right Supremes in recent history?

Incredibly, the DOJ made the absurdist argument that, in violation of the statute, an additional unnecessary layer of procedural BS should be inflicted on individuals already dealing with the trauma of a dysfunctional system running a 2 million plus backlog and a BIA with more than 80,000 un-adjudicated appeals at last count! Where’s the common sense? Where’s the competence? Where’s the “better government” that the Biden Administration promised?

Meanwhile, our Round Table continues to put our centuries of collective experience in due process, fundamental fairness, and practical problem solving to use! The Biden Administration might not be paying attention. But, many others, including Article III Judges, are taking advantage and listening.

🇺🇸 Due Process Forever!

PWS

05-12-23

⚖️ SPLIT 6th CR. WHACKS BIA ON LANDOWNERS AS PSG! — Turcios-Flores v. Garland

Four Horsemen — BIA Asylum Panel In Action. Garland’s largely “holdover” BIA continues to align itself with Trump’s extreme right, nativist judges, as the progressives and advocates who actually supported Dems in the last two elections are left to stew, along with their dehumanized asylum seeking clients.
Albrecht Dürer, Public domain, via Wikimedia Commons

Dan Kowalski reports for LexisNexis Immigration Community:

CA6 on PSG: Turcios-Flores v. Garland (2-1)

https://www.opn.ca6.uscourts.gov/opinions.pdf/23a0094p-06.pdf

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca6-on-psg-turcios-flores-v-garland-2-1#

“Under the correct analysis, the record here compels a conclusion that Honduran rural landownership in this case is a common fundamental characteristic because Turcios-Flores should not be required to change this aspect of her identity to avoid persecution given the demonstrated importance of landownership to her. Therefore, we remand to the Board for further explanation of whether this group meets the social distinction and particularity requirements as well as the remaining asylum considerations.”

[Hats off to Justin S. Fowles and Samuel W. Wardle!]

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To reach their wrong conclusion that “rural landowners” are not a “particular social group,” the BIA ignored its own precedent. See, e.g., Matter of Acosta, 19 I&N Dec. 211, 233 (BIA 1985), modified on other grounds.

The BIA also took an (all too typical) “ahistorical” approach. They ignored the powerful connection between various types of land and property ownership in society and classic historical examples of extermination and persecution. Indeed, millions of dead kulaks persecuted and liquidated by Stalin would be astounded by the BIA’s horribly flawed, “any reason to deny,” analysis. See, e.g., https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwiTv6qnsun-AhWARzABHW3rACUQFnoECC4QAQ&url=https://www.historyplace.com/worldhistory/genocide/stalin.htm&usg=AOvVaw0xlIU36bw6-wmabscwSXT5.

Class warfare and persecution of property owners was at the heart of most Marxist-Leninist Communist dictatorships.

Remarkably, under Garland, the BIA continues to parrot the same biased, restrictionist nonsense spouted by the Trumpist dissenter in this case, Judge Chad A. Readler. He was roundly criticized as unqualified by Democrats and advocates at the time of his nomination. This opposition had lots to do with his biased, anti-immigrant views flowing from his then “boss,” nativist/racist former AG Jeff “Gonzo Apocalypto” Sessions!

For example, it’s worth reviewing the comments of the Alliance for Justice on Reacher’s nomination:

On June 7, 2018, President Trump announced his intention to nominate a Justice Department official, Chad Readler, to the Sixth Circuit Court of Appeals. This announcement was particularly striking for one notable reason: on that very day, Readler had become a leader in the Trump Administration’s fight to destroy the Affordable Care Act and the protections it offers to millions of Americans. Readler, as acting head of the Civil Division, filed a brief to strike down the ACA, including its protections for people with preexisting conditions. If Readler and the Trump Justice Department are successful, the ACA’s protections for tens of millions of people, including cancer patients, people with diabetes, pregnant women, and many other Americans, would be removed.

As the acting head of the Department of Justice Civil Division under Attorney General Jeff Sessions, Readler defended the Trump Administration’s most odious policies, including separating immigrant children from their parents at the border, while claiming that “[e]verything that the Attorney General does that I’ve been involved with he’s . . . being very respectful of precedent and the text of the statute and proper role of agencies.”

His track record is equally atrocious in other respects. He has tried to undermine public education in Ohio; supported the efforts of Betsy DeVos to protect fraudulent for-profit schools; fought to make it harder for persons of color to vote; advanced the Trump Administration’s anti-LGBTQ and anti-reproductive rights agenda; fought to allow tobacco companies to advertise to children, including outside day care centers; sought to undermine the independence of the Consumer Financial Protection Bureau; and advocated for executing minors.

Chad Readler’s record of diehard advocacy for right-wing causes suggests he will be anything but an independent, fair-minded jurist. Alliance for Justice strongly opposes Readler’s confirmation.

https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwjp353GtOn-AhWnjLAFHRjxAKYQFnoECCMQAQ&url=https://www.afj.org/nominee/chad-readler/&usg=AOvVaw1vd0ZxlEMALaM-lfJNn6bq

It’s remarkable and infuriating that once in office, Democrats in the Biden Administration have aligned themselves with the toxic views of extreme, nativist right wing judges whose xenophobic, atrocious views they campaigned against! They have done this in a huge “life or death” Federal Court system that they completely control and have authority to reform without legislation!

🇺🇸 Due Process Forever!

PWS

05-10-23

⚖️ AFTER STRING OF CIRCUIT DEFEATS, BIA FINALLY BACKS DOWN ON “EQUITABLE TOLLING” — Sort Of! — Matter of Morales-Morales, 28 I&N Dec. 714 (BIA 2023)

https://www.justice.gov/eoir/page/file/1582681/download

Matter of Morales-Morales, 28 I&N Dec. 714 (BIA 2023)

BIA Headnote:

(1) The Board of Immigration Appeals has authority to accept what are otherwise untimely appeals, and consider them timely, in certain situations because 8 C.F.R. § 1003.38(b) (2022) is a claim-processing rule and not a jurisdictional provision. Matter of Liadov, 23 I&N Dec. 990 (BIA 2006), overruled.

(2) The Board will accept a late-filed appeal where a party can establish that equitable tolling applies, which requires the party to show both diligence in the filing of the notice of appeal and that an extraordinary circumstance prevented timely filing.

FOR THE RESPONDENT: Mario Salgado, Esquire, San Francisco, California

BEFORE: Board Panel: WETMORE, Chief Appellate Immigration Judge; MULLANE and MANN, Appellate Immigration Judges.

MULLANE, Appellate Immigration Judge [Opinion]

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

Notably, but perhaps predictably for those who follow the BIA’s generally “respondent/due process unfriendly” jurisprudence, the “good news” that the BIA has belatedly decided to follow the 2d, 5th, and 9th Circuits on equitable tolling is “tempered” by the result in this case — denial of the motion to reconsider and accept the appeal!

Evidently, among its 82,000+ backlog, the BIA was unable to identify a case where correctly applying equitable tolling would actually BENEFIT the respondent, rather than just requiring a different, largely contrived, analysis to “get to no!” This continues a depressing and highly inappropriate long-standing tendency of the BIA to provide negative examples of how to apply potentially remedial rules.

Presumably, after 17 years of the BIA’s wrong-headed precedent Matter of Liadov, everyone understands that the BIA is “programmed to deny.” What’s needed is “reprogramming” to recognize and grant motions based on “equitable tolling.”

It’s also remarkable that the “highest tribunal” of a dysfunctional organization, notorious for losing files; failing to provide timely, correct notice; cancelling hearings without notice on the hearing date; switching Immigration Judges without notice in a system where the identity of the judge is too often “outcome determinative;” and “cutting” DHS and itself almost endless “breaks” and “exceptions” for their sloppy, lazy, and sometimes ethnically questionable practices sees fit to “pontificate” so self-righteously on what’s “due diligence” and “extraordinary circumstances” for the private bar. The “message” is pretty clear: Denial is the “preferred” (or default, or de facto presumed) result!

If either of the foregoing concepts were applied to EOIR and DHS with the same stringency they are to individuals and their representatives, both agencies would have been forced out of business long ago!

This system is totally screwed up! Dems must ask themselves why Garland and his senior leadership have failed to “unscrew it,” and what can be done to deal with their democracy-and-life-threatening indolence and inattention to quality jurisprudence, due process, fundamental fairness, and best practices.

🇺🇸 Due Process Forever!

PWS

05-08-23

REPORT FROM KC: Round Table’s Judge Sue Roy Demonstrates Direct Examination of “Cinder F. Rella” (AKA Michelle Saenz Rodriguez)

Cinder Rella — Cinder F. Rella Direct
Sharma-Crawford Trial College
Johnson County Community College
May 5, 2023

Trial College Faculty Celebrates Another Day of Teaching Extraordinary Lawyers To Be Strong, Smart, Fearless!
May 5, 2023

Trial College Happy Ending — Trial College Grads Produce Happy Endings and Grateful Clients!

After just three days of intensive study and engagement at the Sharma Crawford Trial College, immigration litigators actually look and feel different!

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

Such an honor and pleasure to be a part of this distinguished and dedicated group.

To quote my faculty colleague Sarah Owings, “The world and the work are less lonely knowing you are all out there!” I think everyone else feels the same way, Sarah, my friend!

🇺🇸Due Process Forever!

PWS

05-06-23

🤯 FORMER EMPLOYEE’S EXPLOSIVE FEDERAL COURT ALLEGATIONS: NOT EVERYONE IN EOIR MANAGEMENT FOCUSED ON “GUARANTEEING FAIRNESS & DUE PROCESS!”

“Lust and Avarice”
MET DP871968.jpg
Print
Thomas Rowlandson
Creative Commons Zero, Public Domain Dedication

This item was originally reported by Bloomberg Law. From the complaint in Escoto v. Garland, USDC CD CA:

Escoto v Garland

INTRODUCTION

1. Plaintiff CLAUDIA ESCOTO, while working as a Staff Assistant to Assistant Chief Immigration Judge Scott Laurent was subjected to egregious and continual sexual harassment, including Judge Laurent describing in graphic detail other judges and employees he wanted to have sex with, or had sex with, in what positions he wished to have sex and in what manner. Judge Scott Laurent discussed in lurid detail the physical attributes of attorneys who came before him to represent litigants and the government and further discussed attraction to and/or sexual relations with other judges. Judge Laurent regularly subjected Plaintiff to rambling diatribes regarding the breasts, attractiveness and whether he deemed the female attorneys and judges “fuckable.” Judge Laurent also regularly discussed female colleagues and employees in a degrading and sexual manner, discussing in graphic detail who he wanted to have sex with, the physical attributes of female employees and judges. Judge Laurent engaged in this conduct even when in judge’s robes when on the bench. Judge Laurent subjected Plaintiff to graphic description of sexual relations he was having with his wife and other women, including during what was supposed to be work hours.

2. Judge Laurent touched Plaintiff without her consent in a sexual manner, repeatedly placing his hand on Plaintiff’s upper leg when she traveled in a car with him, and ensuring his right arm touched her breasts. This was unwelcome and deeply disturbing to Plaintiff.

3. Judge Laurent further demeaned Plaintiff’s sexual orientation, claiming he could turn her straight (referring to his supposed sexual prowess if Plaintiff had sexual relations with him), referred to Plaintiff’s wife’s breasts and attractiveness and demanded that Plaintiff come “sit on Daddy’s lap,” referring to himself as “Daddy.” He would also proclaim “I can turn you straight, Baby!”

4. Judge Laurent’s conduct caused Plaintiff severe emotional impacts, including causing fainting spells, among other severe reactions. Plaintiff requested a medical leave, during which time

Judge Laurent continued to contact Plaintiff to pressure her to work. He denied Plaintiff’s extension of leave, improperly placing her on AWOL status, even though Plaintiff had leave time. Plaintiff requested a reasonable accommodation of reassignment to a different supervisor where she would not be subjected to this egregious sexual harassment. This request was denied by Defendant. Defendant then acted on Judge Laurent’s recommendation to fire Plaintiff shortly after receiving Plaintiff’s complaints of sexual harassment, discrimination, and retaliation, having taken no actions to address Plaintiff’s complaints, other than to fire her.

5. Judge Laurent’s actions show no respect for the sacred office he holds, demean the entire justice system, and turn what should be a model employment environment into a cesspool, where Plaintiff was made to endure an onslaught of sexual comments and sexual advances, ultimately being fired when she had the bravery to come forward. Plaintiff CLAUDIA ESCOTO, as well as the justice system itself, deserved so much better. Defendant must be held to account.

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

These are only unproven allegations in a court complaint at this point! But, if any of this is true, it would confirm that there are some deep “cultural” issues at EOIR that leadership has not dealt with.

“Expedited/dedicated dockets” and other “haste make waste” nonsense that misses the mark at EOIR aren’t going to solve systemic issues affecting due process and fundamental fairness for the millions whose lives and futures are pending in our broken and dysfunctional Immigration Courts!

🇺🇸 Due Process Forever!

PWS

05-04-23

⚖️🗽🇺🇸 TRUTH: YOU’VE HEARD THE ALARMIST NATIVIST MYTHS ABOUT ASYLUM FROM THE GOP & (IRONICALLY) THE BIDEN ADMINISTRATION & SOME DEMS: NOW, GET THE FACTS ABOUT ASYLUM & THE BORDER FROM ALIANZA AMERICAS!

“Fear & Loathing”
Inept, disingenuous performances on asylum by the White House, DHS, & DOJ have left the Biden Administration grasping at straws and spreading vile nativist myths about asylum seekers at the border.
PHOTO: Creative Commons

Deterrence and increased enforcement have proven to be failed approaches that do not change the multiple factors that force so many people to flee their countries and only result in pushing people into more dangerous routes that allow criminal organizations to thrive, resulting in the smuggling, trafficking, extortion, and kidnapping of migrants and others.

Download the AA Fact Sheet here:

https://docs.google.com/document/d/1eihlegCrk1Lf-08aDhL8p-fvj_GQGxZ7PYgm-MUcF1s/edit

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

After more than two years of bumbling around, in the process squandering their access to the ideas and problem-solving skills of an un-precedented “brain trust” of immigration experts, the Biden Administration appears to be in “full panic mode” as the inevitable lifting of the Title 42 charade slowly approaches. Notably, a Federal Court ordered the Administration to make good on its (already delayed) promise to end Title 42 back in November 2022. But, the Supremes unethically blocked that order — granting a stay that NO ACTUAL PARTY to the litigation requested, in a simply mind-boggling exercise of politicized, unconstitutional interference with the Executive.

Instead of using the time to 1) work with NGOs, 2) hire and train more expert asylum officers, 3) replace the BIA and anti-asylum Immigration Judges with qualified human rights/due process experts, and 4) drastically ramp up the refugee admission system outside the U.S. (not substituting an inadequate and “jury rigged” numerically limited “parole” program for legal refugee and asylum admissions), the Administration frittered away the opportunity with obstructionist/restrictionist nonsense. Now, they are “running scared” from desperate refugees merely seeking to exercise their legal rights that have been illegally and immorally denied to them for years — by successive Administrations.

🇺🇸 Due Process Forever!

PWS

05-03-23

⚖️🗽 TWO MORE (PREVIOUSLY) UNHERALDED ASYLUM VICTORIES FOR CENTRAL AMERICAN WOMEN! — From Colorado & NY Immigration Courts!

Pooja Asnani reports from Sanctuary For Families NY:

Hi all,

I wanted to share a recent asylum grant won by my colleagues, Deirdre Stradone, Amalia Chiapperino, and Kelly Becker-Smith, before IJ McKee at the NYC immigration court.

Client is Honduran Garifuna woman who survived DV and gang violence, and, importantly for the grant of asylum, forced sterilization. Below is a quick summary of the case, and I’m highlighting this asylum grant because our team, specifically Deirdre, has been seeing more and more cases of forced sterilization among Central American women.

Respondent is a forty-five-year-old Honduran Garifuna woman who has been the victim of forced sterilization, severe verbal, physical, and sexual violence, robbery and death threats by gang members, and intentional deprivation of law enforcement assistance and medical attention due to her race and gender. Overwhelming evidence affirms the horrific practice of forced sterilization against Garifuna women, as well as the high levels of domestic and gang violence in Honduras that take place with impunity. The evidence shows that government authorities largely fail to respond to complaints of abuse, or when they do respond, fail to do so effectively.

Deirdre has been collaborating with the Mt. Sinai Human Rights program to study the forced sterilization of Central American women, a topic she had encountered over and over again in her asylum cases, with the researchers agreeing that this particular violation of human rights is likely more common than is being research and reported. Deirdre has found several reports and studies conducted regarding indigenous, mainly Garifuna, women living with HIV who have been victims of this practice. As you all probably know, and stemming from the response to China’s one-child policy, forced sterilization is defined in the Immigration and Nationality Act (“INA”) as “per se persecution on account of political opinion.”

I wanted to share this because we’re realizing that that it may be a more wide-spread practice than we initially thought, and often times, clients don’t even realized they have been sterilized when they come to us. We have been asking specific questions about this in our intakes, and often have been sending our clients to get a medical evaluation to determine whether they have been sterilized. Unfortunately, we have had a several clients discover in the course of our representation that they had been sterilized without their consent, and we believe that many other women may have experienced this without realizing.

While we have worked on several cases with similar facts, but interestingly, this is the first asylum case we have had were the IJ (McKee) granted specifically based on the forced sterilization claim (political opinion), and not on the ARCG DV claim.

Our team at Sanctuary is working to put together a training to help issue-spot, discuss common fact patterns, and how to prepare and brief these cases; stay tuned for more details.

CC’ing the team who worked on this case, including Deirdre, if folks have questions.

Thanks,

Pooja

Deirdre Stradone
Attorney
Sanctuary for Families NY

Kelly Becker-Smith
Attorney
Sanctuary for Families NY

Amalia Chiapperino
Sanctuary for Families NY

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

Dan Kowalski reports from LexisNexis Immigration Community:

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/asylum-victory-in-colorado-indigenous-guatemalan#

Christina Brown writes: “I wanted to share the attached decision in case it is helpful to others. IJ Burgie granted the asylum claim of an indigenous Guatemalan applicant finding past persecution based on severe economic deprivation (DHS failed to rebut). She also granted based on a pattern and practice of severe economic persecution of indigenous Guatemalans.”

[ICE did NOT appeal. Hats way off to Christina Brown!]

Christina Brown ESQ

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

Many congrats and much appreciation to all involved!

Even as the Biden Administration and GOP nativists push their “big myth” that most seeking asylum at the Southern Border are “mere economic migrants” not “true refugees,” these results from those fortunate enough to have expert lawyers, fair Immigration Judges, and reasonable time to prepare, document, and present continue to show the intellectual and moral bankruptcy of the racially-biased restrictionist claims. Indeed, to get to the “any reason to deny” nonsense, which also is often mis-employed by the BIA, one has to intentionally ignore or misconstrue both the real country conditions in the Northern Triangle and the inclusive “at least one central reason” mixed motive language of the INA.

These are NOT “one offs!” No, they are actually recurring situations! A properly functioning, fair, expert BIA, committed to a correct and generous interpretation of asylum laws, would have incorporated these and other recurring “grant” situations into a series of binding precedents. These, in turn, would allow lawyers, Asylum Officers, IJs, and ACCs to recognize and prioritize these cases for “fast track grants.”

That, in turn, would enable many asylum applicants to be timely admitted in legal asylum status, work authorized, and on the way to green cards and naturalization. Significantly, it would also avoid the largely self-created, self-aggravated, ever-growing EOIR backlogs that seem to “drive” the “haste makes waste,” sloppy, “any reason to deny” decision-making that still exists throughout our broken and biased asylum system.

The REAL problem here its that meritorious cases like or similar to these that require expert recognition, proper preparation and documentation, and officials committed to “protection not rejection,” are likely to be summarily rejected and wrongfully pushed back across the border by the “Biden/Miller Lite” procedures and toxic official attitudes toward asylum now being promoted by both the Administration and the GOP.

It’s disturbingly clear that the needed positive changes in the immigration legal system are NOT “coming from the top” in the Biden Administration. Consequently, in addition to recruiting, training, and mentoring ever more members of the NDPA (including non-attorney accredited representatives), to hold the system accountable, it is ESSENTIAL that we get more NDPA “practical experts” on the Immigration Bench to spread and force due process, fundamental fairness, and best interpretations/practices on a resistant system from the “retail level” — the “grass roots” if you will.

That requires that NDPA experts with the qualifications apply for Immigration Judge vacancies en masse! You can’t be selected if you don’t apply! And, without better Federal Judges at all levels not only will injustice continue to prevail for immigrants, but our entire democracy will be imperiled! Better judges for a better America!

Yes, as I have acknowledged in prior posts, EOIR can be a tough place to work. But, human lives and the future of our democracy depend on our changing the system, from “the bottom up” if that’s the only way. This system is too important, with too much at stake, to be left to the whims and false agendas of tone-deaf politicos and inept, “go along to get along” bureaucrats!

🇺🇸Due Process Forever!

PWS

05-02-23

“WISCONSIN SPRING”

On my way to the Sharma-Crawford Clinic Litigation Trial College in Kansas City, May 4-6, 2023!

🇺🇸 Due Process Forever!

PWS😎

05-01-23

🤯 JUSTICE ON THE ROCKS! ☠️ THE GOP HAS CORRUPTED THE FEDERAL JUDICIARY, WHILE THE DEMS CAN’T BRING DUE PROCESS AND QUALITY TO THE LARGE JUDICIARY THEY “OWN!” — Latest Rebuke By 5th Shows EOIR’s Sloppiness, Misrepresentations, Misconstructions, DOJ’s “Defense Of the Indefensible” In Quest To Deny Asylum To Refugees! — Recent Reports On “Management” & “Leadership” Deficiencies Show “The Wheels Are Coming Off The EOIR Circus Wagon!” 🤡

injustice — Injustice
Public Realm
Dems spend lots of time whining about the destruction of the Federal Judiciary by GOP right-wing extremists. However, after two years in charge, they have done little to bring due process, fundamental fairness, and judicial expertise to America’s worst courts — the Immigration Courts — which they totally control!

The 5th Circuit didn’t mince any words in its latest (inexplicably) unpublished, 24-page takedown of EOIR’s ridiculous “judicial” failure with lives at stake!

https://www.ca5.uscourts.gov/opinions/unpub/20/20-60133.0.pdf

. . . .

Based on all of the evidence as a whole, and in light of the applicable caselaw, Reyes-Hoyes has made a compelling case of persecution. Nevertheless, we find a remand is necessary because the BIA did not make a determination as to Reyes-Hoyes’s credibility. The BIA did not mention credibility in its decision or express any doubts about the truth of Reyes- Hoyes’s testimony. The IJ did express some doubts about Reyes-Hoyes’s credibility, although he did not explicitly find her uncredible and ultimately stated he was not denying relief “based on a lack of sufficiency of proof.” However, the BIA did not adopt the IJ’s decision and thus did not incorporate any of the doubts the IJ had. “Generally speaking, a court of appeals should remand a case to an agency for decision of a matter that statutes place primarily in agency hands.” I.N.S. v. Orlando Ventura, 537 U.S. 12, 16 (2002). If Reyes-Hoyes is credible, she has shown persecution, but the credibility determination must be made by the factfinder, not by this court on appeal. See 8 U.S.C. § 1158(b)(1)(B)(iii); Avelar-Olivia v. Barr, 954 F.3d 757, 767 (5th Cir. 2020). Accordingly, the decision of the BIA is vacated in part, and we remand to the BIA for a determination on credibility.

. . . .

In sum, we conclude that, if Reyes-Hoyes is credible, the record compels the conclusion that Reyes-Hoyes suffered harm rising to the level of past persecution, but we remand for the BIA to consider her credibility in the first instance. We also conclude that the record compels the conclusion that safe internal relocation to parts of Guatemala—Mesata and Raul—was not possible. Additionally, we hold that the BIA procedurally erred in the remainder of its analysis concerning whether internal location was reasonable and whether Reyes-Hoyes had shown state action by not meaningfully considering the relevant substantial evidence.

. . . .

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

Here is my immediate reaction when Dan Kowalski at LexisNexis sent me the decison:

Wow! This is an EOIR/OIL error fest — replete with misrepresentations and mischaracterizations! Totally sloppy work! Why won’t they publish this? It’s a perfect example of how Garland has failed to get the job done!

And, here’s the reaction from my friend and Round Table Colleague “Sir Jeffrey Eagle Eyes” Chase:

24 pages; very detailed analysis of recurring asylum issues. Should certainly have been published.

BTW, please note footnote 9, an example of the ongoing problem with the government’s online regs continuing to list the enjoined “death to asylum” regs that the previous administration tried to push through. The Fifth Circuit continues to believe that the internal relocation reg was amended effective January 19, 2021. Have cases been decided based on this erroneous belief?

Lest you doubt the “complete FUBARness” of EOIR, check these out:

EOIR ranked 420 out of 432 in list of USG “Best Places to Work” (97th percentile) https://naij-usa.us20.list-manage.com/track/click?u=fb6095c093c4ba52c1a1f5cec&id=e8849a6c94&e=a00508cc44;
Second worst component of DOJ;
Worst of all the small and mid-sized agencies ranked;
While the “curve” for “subagencies” has gone up since 2007, EOIR’s score has cratered, plunging dramatically during the Trump years;
EOIR ranked at or near the bottom on key metrics, including, significantly, “leadership style” (some of the “credit” for this abysmal score should go to DOJ, which has failed to provide dynamic, due-process-oriented leadership over the last six years);
GAO study just cited EOIR for a number of management deficiencies including “blowing off” “our [GAO’s] 2017 recommendation to develop a strategic workforce plan to address current and future staffing needs, EOIR hasn’t done so—even though it had a significant and growing backlog of 1.8 million pending cases at the start of FY 2023, more than triple the number that it had in FY 2017.”
The NAIJ continues to raise technology and health and safety defects with EOIR “management;”
Notably, during this period of abject failure, EOIR has found time and resources to waste (and potential “goodwill” to squander) on unneeded nonsense like “IJ Dashboards,” “production quotas,” “expedited dockets,” more layers of bloated headquarters bureaucracy, and, perhaps the biggest boondoggle of all, a totally absurd and duplicative “Office of Policy” for an agency that has demonstrated a disturbing inability to carry out its “core function:” Providing Due Process for all through fair, timely, expert, correct adjudications!

EYORE — “Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up” — As Dems founder in their commitment to restore justice, could new Immigration Judges from the NDPA — unswervingly committed to due process, fundamental fairness, and best practices — get this poor little fella back on his feet and improve the culture and atmosphere at the “retail level” of EOIR, even in the face of indifference and incompetence from those in charge? Lives and futures — perhaps the future of our democracy — are at stake!

What we really need is a “lean, not mean, due process machine” @ EOIR. Why can’t the Dems deliver? That’s the age-old question among human rights experts!

🇺🇸 Due Process Forever!

PWS

04-30-23

⚖️ “STANDARDS [SHOULD] MATTER” — Judge Rosemary Pooler (Dissenting) “Schools” Colleagues On How Standards Of Review Are Improperly Manipulated To Favor DHS!

Hon. Rosemary S. Pooler
Senior Circuit Judge
Second Circuit
PHOTO: Law.com

https://www.ca2.uscourts.gov/decisions/isysquery/7c64a6f4-549e-4ec9-8278-1e538e4b4bd7/2/doc/19-2044_21-6533_complete_opn.pdf

Hernandez v. Garland, 2d Cir., 04-21-23, Walker, Pooler, Park, Circuit Judges

POOLER, Circuit Judge, dissenting:

2 Standards matter. A standard of review is the essential mechanism that

3 defines an appellate court’s proper role in reviewing the record presented. All

4 appellate courts must adhere to the proper standard of review. The Board of

5 Immigration Appeals (“BIA” or “the Board”) is no exception. Here, the BIA

6 applied a standard that substantially deviated from the clear error standard and

7 improperly made factual findings that contradicted those made by the

8 Immigration Judge (“IJ”). The BIA’s failure to adhere to the proper standard is

9 “the type of error that requires remand.” De La Rosa v. Holder, 598 F.3d 103, 108

10 (2d Cir. 2010). Accordingly, I respectfully dissent.

11 This Court lacks jurisdiction to review purely discretionary decisions by

12 the BIA, see 8 U.S.C. § 1252(a)(2)(B)(ii), but we retain jurisdiction over

13 “constitutional claims or questions of law,” Noble v. Keisler, 505 F.3d 73, 77 (2d

14 Cir. 2007) (quoting § 1252(a)(2)(D)). When reviewing decisions, “[t]he Board will

15 not engage in de novo review of findings of fact determined by an immigration

16 judge. Facts determined by the immigration judge, including findings as to the

17 credibility of testimony, shall be reviewed only to determine whether the

18 findings of the immigration judge are clearly erroneous.” 8 C.F.R. §

1

1 1003.1(d)(3)(i). “[W]hen the BIA engages in factfinding in contravention of 8

2 C.F.R. § 1003.1(d)(3)(iv), it commits an error of law, which [the Court has]

3 jurisdiction to correct.” Padmore v. Holder, 609 F.3d 62, 67 (2d Cir. 2010); see also

4 Rizal v. Gonzales, 442 F.3d 84, 89 (2d Cir. 2006) (explaining that the Court will

5 vacate BIA decisions “that result from flawed reasoning or the application of

6 improper legal standards”). Though the BIA “may review questions of law” and

7 “all other issues” on appeal de novo, see § 1003.1(d)(3)(ii), it is explicitly barred

8 from “engag[ing] in factfinding in the course of deciding cases” aside from

9 taking “administrative notice of facts that are not reasonably subject to dispute,”

10 § 1003.1(d)(3)(iv)(A).

11 Here, the BIA recited the precise legal standard at the beginning of its May

12 2019 decision. Special App’x at 7 (citing § 1003.1(d)(3)). But we do not simply

13 “rely on the Board’s invocation of the clear error standard; rather, when the issue

14 is raised, [the Court’s] task is to determine whether the BIA faithfully employed

15 the clear error standard or engaged in improper de novo review of the IJ’s factual

16 findings.” Rodriguez v. Holder, 683 F.3d 1164, 1170 (9th Cir. 2012); see also Chen v.

17 Bureau of Citizenship & Immigr. Servs., 470 F.3d 509, 514 (2d Cir. 2006) (noting that

18 despite “cit[ing] the proper legal standard at the outset of its decision, [the BIA]

2

1 failed to apply this deferential standard of review”). Despite its invocation of the

2 clear error standard, the BIA did not ultimately apply this standard of review to

3 Oscar Hernandez’s case. Merely reciting the standard does not transform the

4 BIA’s impermissible factfinding into a permissible exercise of discretion. Such lip

5 service should not suffice.

6 The majority opinion characterizes the BIA’s impermissible factfinding as a

7 simple “de novo reweighing of the equities based on the facts found by the IJ.”

8 Maj. Op. at 3. That is not the case. Without identifying any of the IJ’s findings as

9 clearly erroneous, the BIA implicitly rejected the IJ’s factual findings and

10 substituted the facts found by the IJ with its own factual findings. If the BIA

11 rejects the IJ’s findings, we expect it to “supply cogent reasons for its rulings,”

12 which the BIA failed to provide. See Lin v. Lynch, 813 F.3d 122, 129 (2d Cir. 2016).

13 The BIA completely disregarded the IJ’s credibility determination when it

14 concluded, contrary to the IJ’s findings, that it “d[id] not find [Hernandez’s]

15 explanation convincing” regarding the circumstances of his 2016 arrest. Special

16 App’x at 10. This divergence in characterization of the 2016 incident was central

17 to the BIA’s decision. In its attempt to parse out the definition of “convincing,”

18 the majority claims the BIA did not overturn the IJ’s factual findings, arguing the

3

1 BIA’s intended use of the word meant it was not “persuaded” by Hernandez’s

2 explanation, not that his testimony was not “truthful.” Maj. Op. at 11. This is an

3 unconvincing distinction. Next, the majority suggests the BIA doubted that

4 Hernandez warranted discretionary relief, not the truthfulness of his testimony.

5 Id. at 12. That clarification, however, does not do much to support the majority’s

6 argument. The BIA’s “de novo” reconsideration of whether Hernandez merited a

7 favorable exercise of discretion was premised on its factual determination that he

8 had “continued to engage in violent behavior” following his first arrest and

9 conviction in 2009. Special App’x at 10. The only evidence cited for this

10 determination was that Hernandez’s “most recent arrest in 2016 . . . included

11 abusive behavior toward his spouse”—a characterization directly at odds with

12 the IJ’s findings. Special App’x at 10.

. . . .

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

You can read the full decision, including Judge Poolers’ full dissent, at the link.

As Judge Pooler points out, manipulation of the standards of review can be used either to improperly substitute judgement on fact-findings (BIA) or too avoid critical review of BIA’s actions (Circuit majority).

Thanks to Dan Kowalski over at LexisNexis for passing this along.

🇺🇸 Due Process Forever:

PWS

04-23-23

Provided by a veteran immigration practitioner:

🇺🇸 Due Process Forever!

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🇺🇸 Due Process Forever!

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🇺🇸 Due Process Forever!

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BIA Headnote:

🇺🇸 Due Process Forever!

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🇺🇸Due Process Forever!

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🇺🇸 Due Process Forever!

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Download the AA Fact Sheet here:

🇺🇸 Due Process Forever!

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Pooja Asnani reports from Sanctuary For Families NY:

Dan Kowalski reports from LexisNexis Immigration Community:

🇺🇸Due Process Forever!

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🇺🇸 Due Process Forever!

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The 5th Circuit didn’t mince any words in its latest (inexplicably) unpublished, 24-page takedown of EOIR’s ridiculous “judicial” failure with lives at stake!

🇺🇸 Due Process Forever!

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Hernandez v. Garland, 2d Cir., 04-21-23, Walker, Pooler, Park, Circuit Judges

🇺🇸 Due Process Forever:

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