Category: Litigation

⚖️👩🏽‍⚖️ MORE NDPA CLE: Ellsberg, Harris, Schmidt, Among Headliners @ Inaugural Fourth Circuit Asylum Law Conference @ William & Mary Law on March 11!

Dr. Mary Ellsberg
Dr. Mary Ellsberg
Founding Director
Global Women’s Institute
George Washington University
PHOTO: GWU
Professor Lindsay Muir Harris
Professor Lindsay Muir Harris
UDC Law
Me
Me

https://www.eventbrite.com/e/the-inaugural-fourth-circuit-asylum-law-conference-tickets-203071732017?aff=speaker

The Inaugural Fourth Circuit Asylum Law Conference

MAR

11

The Inaugural Fourth Circuit Asylum Law Conference

by William & Mary Law School Immigration Clinic

 

11

The Inaugural Fourth Circuit Asylum Law Conference

by William & Mary Law School Immigration Clinic

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$20 – $250

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Event Information

Join us for a full-day virtual conference discussing Fourth Circuit asylum law and best practices with experts. 6.5 VA & NC CLE credits.

About this event

Join the William & Mary Law School Immigration Clinic, William & Mary Center for Racial and Social Justice, and Immigrant Justice Corps for the Inaugural Fourth Circuit Asylum Law Conference.

Conference Schedule:

Panels and Sessions include:

  • One Year In: The Biden Administration and Asylum Policy
  • Developments in Fourth Circuit Case Law
  • Increasing Access to Pro Bono Counsel in Underserved Areas: Virginia as a Case Study
  • Working Across Disciplines: Best Practices for Attorneys and Mental Health Professionals in Asylum Seeker Evaluations
  • Country Conditions: From Page to Practice

CLE Credit and DOJ Accredited Representative Certifications

This event has been approved for 6.5 credit hours of CLE credit from Virginia and North Carolina. Attorneys seeking CLE credit must purchase tickets indicating that CLE credit is provided (indicated by “CLE” listed by the ticket type).

Attorneys from other jurisdictions who are not seeking CLE credit from Virginia or North Carolina are welcome to attend.

DOJ Accredited Representative certifications will be provided to those who register as DOJ Accredited Representatives seeking certification.

Zoom Webinar Information

Zoom information for the event will be sent to the email address used to register. For security reasons, we do not post the Zoom link information. All Zoom registration information will be provided in a separate email closer to the date of the event.

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Date and time

Fri, March 11, 2022

9:00 AM – 5:00 PM EST

Location

Online event

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Eventbrite’s fee is nonrefundable.

Organizer

William & Mary Law School Immigration Clinic

Organizer of The Inaugural Fourth Circuit Asylum Law Conference

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Our panel will be “Country Conditions: From Page to Practice.”

🇺🇸Due Process Forever!

PWS

02-25-22

Related posts:

  1. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  2. WHEN ARTICLE III COURTS FAIL: U.S. “Orbits” Refugee Families To Dangerous Chaos In Guatemala Under Clearly Fraudulent “Safe Third Country” Arrangements As Feckless U.S. Courts Fail To Enforce Constitutional Due Process & U.S. Asylum Laws In Face Of Trump Regime’s Contemptuous Scofflaw Conduct!
  3. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”
  4. JOURNAL ON MIGRATION & HUMAN SOCIETY (“JMHS”) PUBLISHES MY TRIBUTE TO JUAN OSUNA (1963-2017): “An Overview and Critique of US Immigration and Asylum Policies in the Trump Era”

😎👍🏼⚖️🗽 MORE FREE NDPA TRAINING FROM THE EXPERTS: 6 Months After the Fall of Aghanistan: Free Webinar Mar. 9 1-2 pm ET!

Professor Stephen Yale-Loehr
Professor Stephen Yale-Loehr
Cornell Law

Cornell Law School and the Cornell Migrations Initiative, along with other organizations, are hosting a free public webinar on Wednesday March 9 from 1-2 pm ET entitled “After the Fall: The Future of Afghan Allies Fleeing the Taliban.”

Six months after the fall of Afghanistan, a lot has been done, but a lot remains to be done.The United States evacuated over 100,000 Afghans to the United States or third countries.Yet an estimated 200,000 Afghans who helped the U.S. military or government remain in Afghanistan, fearing persecution and famine.Moreover, those who have made it to the United States have mostly entered on humanitarian parole, which is a temporary status that expires after two years.They need ways to remain in the United States permanently.

Learn what Cornell University and other organizations have done to assist Afghans at risk, what remains to be done, and how you can help.

Speakers include Joel Kelsey, chief of staff to U.S. Senator Richard Blumenthal; Chis Purdy, director of Veterans for American Ideals and Outreach at Human Rights First; Nell Cady-Kruse from the Evacuate Our Allies Coalition; Camille Mackler, executive director of Immigrant ARC; and Katie Rahmlow, a Cornell law student who has worked on several Afghan cases. Cornell law professor Stephen Yale-Loehr, who directs an Afghanistan asylum clinic at Cornell Law School, will moderate.

To register for the free webinar, go to https://ecornell.cornell.edu/keynotes/overview/K030922a/

Stephen Yale-Loehr

Professor of Immigration Law Practice, Cornell Law School

Faculty Director, Immigration Law and Policy Program

Faculty Fellow, Migrations Initiative

Co-director, Asylum Appeals Clinic

Co-Author, Immigration Law & Procedure Treatise

Of Counsel, Miller Mayer

Phone: 607-379-9707

e-mail: SWY1@cornell.edu

Twitter: @syaleloehr

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

Thanks so much Steve for passing this along! An all-star lineup to be sure! 🌟🌟🌟 Don’t miss it! Required registration available at the above link.

🇺🇸Due Process Forever!

PWS

02-24-22

Related posts:

  1. ⚖️👩🏽‍⚖️ MORE NDPA CLE: Ellsberg, Harris, Schmidt, Among Headliners @ Inaugural Fourth Circuit Asylum Law Conference @ William & Mary Law on March 11!
  2. REPORT FROM FBA, AUSTIN: Read My Speech “JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW”
  3. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  4. SUZANNE MONYK @  LAW360:  Experts Say New Asylum Rule Unconstitutional Because It Guts Due Process🏴‍☠️, Effectively Repeals Asylum Statute, Will Result in Near 100% Denial Rate — While Denials & Illegal “Deportations to Death☠️” Will Soar, Asylum Seekers Not Likely to be Deterred From Coming, Meaning That Court Backlogs & Avoidable Litigation Will Continue to Mushroom!

😎👍🏼⚖️ARLINGTON PRACTITIONER ARNEDO S. VELERA BEATS EOIR, OIL — 11th Cir. “Outs” Another Sloppy Analysis By Garland’s BIA In CIMT Case! — Hernandez Zarate v. Garland

 

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/ca11-cimt-remand-hernandez-zarate-v-garland

Dan Kowalski reports for LexisNexis:

CA11 CIMT Remand: Hernandez Zarate v. Garland

Hernandez Zarate v. Garland

“The question presented in this appeal—one which has led to a circuit split—is whether a conviction for falsely representing a social security number, see 42 U.S.C. § 408(a)(7)(B), is a CIMT. … The BIA explained that § 408(a)(7)(B) requires intent to deceive, and as a result Mr. Zarate’s conviction was for a CIMT. Noting that the circuits were divided on the issue, it quoted our decision in Walker v. U.S. Att’y Gen., 783 F.3d 1226, 1229 (11th Cir. 2015), for the proposition that, “[g]enerally, a crime involving dishonesty or false statement is considered to be one involving moral turpitude.” The BIA did not, however, address whether a violation of § 407(a)(7)(B) is inherently base, vile, or depraved. And that, as we will later explain, is a significant omission. … Our holding today does not foreclose the possibility that a conviction for a violation of § 408(a)(7)(B) may be a CIMT. But if the BIA is going to hold that it is, it will need to do what it has so far failed to do in Mr. Zarate’s case—it will have to apply its two-pronged moral turpitude standard in toto and decide whether the statute, under the categorical approach, involves conduct that is “reprehensible,” i.e., conduct that is “inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.” Silva-Trevino, 26 I. & N. Dec. at 833–34 (internal quotation marks omitted). See also Simon-Kerr, Moral Turpitude, 2012 Utah L. Rev. at 1007–08 (criticizing courts for “ignor[ing] community moral sentiments when applying the [moral turpitude] standard”). We remand to the BIA for that purpose.”

[Hats way off to Arnedo Silvano Valera!]

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Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

My colleague Hon. “Sir Jeffrey” Chase of the Round Table 🛡⚔️ offers the following cogent “instant analysis:”

Besides from what this says about the BIA being too lazy and hellbent on affirming removal orders for even the 11th Circuit’s liking, this is really interesting in its addressing the issue of applying “community moral sentiments”.What community are we talking about, and at what period of time?

There’s also a concurring opinion that does a very deep dive into the process for determining whether a statute is divisible.Could you even imagine the BIA engaging in the necessary analysis?

“Deep analysis” isn’t exactly in the “BIA playbook” under Garland. No, Garland’s “good enough for government work culture” at the DOJ tolerates the “whatever it takes to get to ‘no’” standard that was instilled by Sessions and Barr and, remarkably, still permeates much of the BIA’s work that is being rejected by the Article IIIs.

I note that the “deep dive” concurring opinion referenced by “Sir Jeffrey” was written by Senior Circuit Judge Gerald B. Tjoflat, a 92-year-old Gerald Ford appointee whose intellectual engagement and analytical work product puts the Garland BIA to shame! 

🇺🇸Due Process Forever!

PWS

02-19-22

Related posts:

  1. 🏴‍☠️👎🏽🤮 AIMLESS DOCKET RESHUFFLING (“ADR”) ON STEROIDS! — EOIR Dysfunction Shows What Happens When “Captive Court System” Kowtows To Political Handlers Rather Than Serving The Public! — Jason Dzubow, The Asylumist, Reports!
  2. ⚖️🗽🧑🏽‍⚖️”MEDLEY OF INJUSTICE” — CIRCUITS CONTINUE TO LOWER HAMMER 🔨 ON BIA: Anti-Asylum Misogyny; Illegal & Incredibly Stupid “Policies;” “Perplexing” Lack Of Legal Knowledge Highlighted In Latest Batch Of Reversals! — “Attempted rape by a gang of men, in broad daylight on a public street, is especially terrorizing because it powerfully demonstrates the perpetrator’s domination, control over the victim and imperviousness to the law. Requiring evidence of additional harms both minimizes the gravity of the sexual assault and demeans the victim.”
  3. 🌬🤯MORE BLOWBACK FOR GARLAND’S “COURTS” — Problems Emerge On Credibility (1st Cir., 10th Cir.), Agfel (9th Cir.)
  4. CIMT: PRACTICAL SCHOLAR “SIR JEFFREY” CHASE ⚔️🛡 EXPLAINS HOW A “SUPREME CONSTITUTIONAL TANK” FROM 71 YEARS AGO CONTINUES TO SCREW 🔩 IMMIGRANTS!

🚂🛤GARLAND’S DEPORTATION RAILROAD KEEPS ROLLIN’ — WITH A LITTLE HELP FROM TWO GOP JUDGES IN 4TH — Mejia-Velasquez v. Garland — After 6 Years, 3 Flawed Tribunals, A Woman Claiming Politically-Motivated Gang Abuse In Honduras Sent Packing Back To Danger & Corruption Without A Merits Hearing!

 

Train
Train
Dennis Adams, Federal Highway Administration; levels adjustment applied by Hohum
Public domain. — Garland’s Deportation Railway retains most of his predecessors’ engineers, conductors, and crew.  It’s often slow, unreliable, erratic, and subject to arbitrary unannounced schedule changes. It continues to bypass “Due Processville” and “Fundamental Fairness City.”

 

https://www.ca4.uscourts.gov/opinions/201192.P.pdf

Mejia-Velasquez v. Garland, 4th Cir., 02-16-22, published

PANEL: NIEMEYER, MOTZ, and RICHARDSON, Circuit Judges.

OPINION BY: Judge Niemeyer

DISSENT: Judge Motz

KEY QUOTE FROM DISSENT:

Under the current immigration statutes, DHS has good reason to require applicants for relief from removal to submit fingerprints and other biometrics. But before DHS does so, it must first comply with specified notice obligations. Where, as here, DHS fails to do so, I would not fault the applicant. As the Supreme Court explained in Niz-Chavez, “[i]f men must turn square corners when they deal with the government, it cannot be too much to expect the government to turn square corners when it deals with them.” 141 S. Ct. at 1486.

I respectfully dissent.

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

The IJ and the BIA relied on a wrong BIA precedent. The 4th Circuit majority judges recognized its incorrectness, but took OIL’s invitation to fashion another rationale for denying this asylum applicant a hearing on the merits of her life or death claim. While the respondent was represented by counsel, the disputed “warnings” and dialogue relating to the missing biometrics were not translated into Spanish, the only language she understood.

While this case was pending, USCIS finally delivered the long and inexplicably delayed biometrics appointment letter to the respondent. But, that made no difference to a group of judges anxious to railroad her back to Honduras (one of the most dangerous and thoroughly corrupt countries in the hemisphere) without a meaningful chance to be heard.

With a dose of macabre ☠️ irony, the 4th Circuit’s tone-deaf decision came just as the US was requesting extradition of former Honduran President, and Obama and Trump Administrations’ buddy, Juan Orlando Hernández on drug trafficking charges! https://lawprofessors.typepad.com/immigration/2022/02/violence-in-honduras-tied-to-ex-president-now-arrested.html

Of all the Federal Judges who looked at this case over the years, only Judge Motz was interested in providing the respondent a due process hearing on her life-determining claim. The rest evidently were more fixated on creating reasons for NOT hearing her case. With the same amount of judicial and litigation effort, likely less, the respondent probably could have received a due process hearing on the merits of her claim. Additionally, there would have been consequences for the BIA’s defective “good enough for government work” precedent.

Of course, like Garland, none of the exalted judges involved in this disgraceful dereliction of duty have actually represented an asylum applicant in Immigration Court and had to deal with the confusing, convoluted, backlogged, and often notoriously screwed up DHS/EOIR biometrics process. See, e.g., “USCIS Biometrics Appointment Backlog,” https://www.stilt.com/blog/2021/02/biometrics-appointment-backlog/.

I suspect that folks contesting a parking ticket get more consideration in our system than this asylum applicant got from Garland’s unfair and dysfunctional Immigration Courts and the OIL lawyers who defend these mis-handled cases. And, in the world of “refugee roulette,” where human lives are treated like lottery tickets, a different Circuit panel of judges might have joined Judge Motz in getting it right.

The problem starts with EOIR — tribunals that receive deference without earning it through expertise, quality scholarship, and prioritizing due process, fundamental fairness, and best practices. It’s aggravated and multiplied by Garland — an Attorney General indifferent to injustice and the trail of broken lives and dashed hopes left in its wake. And, it’s aided, abetted, and enabled by judges like the panel majority here, who can’t be troubled with the hard work of understanding the consequences of their dilatory approach and demanding fair, competent, and reasonable expert judging from EOIR.

As several of my colleagues have said about the broken, dysfunctional, unfair Immigration Court system, the haphazard review by some Circuit Courts, and the disturbing systemic lack of judicial courage when it comes to fairly applying the Due Process Clause of our Constitution to migrants of color: “The cruelty is the point.”

It’s also worthy of note that the failure of all the Federal Judges, save Judge  Motz, to make any meaningful inquiry into the respondent’s clearly expressed fear of return to Honduras appears to violate mandatory requirements for withholding of removal under the INA and international conventions. Perhaps that’s not surprising as Federal Judges have allowed Garland, Mayorkas, and their predecessors to use the transparent pretext of “Title 42” to systemically violate the legal and human rights of refugees at our borders — every day!

It’s also worth putting into context the Biden Administration’s continuing pontification about the human rights of Ughyurs, Afghans, women, and other persecuted minorities, as well as their professed commitment to racial justice in the U.S., which has not been matched by actions. Indeed, the Biden Administration’s actual approach to human rights looks much more like “Miller Lite Time” than it does a courageous, competent, and fair reinstitution of the rule of law!

According to recent reports, many of the Ughyurs and Afghans who were fortunate enough to reach the U.S. and avoid arbitrary “turn backs” at our borders, are now mired in the endless, mindless Mayorkas/Garland bureaucracy that masquerades as an “asylum system” — subject to long waits, missing work authorizations, and sometimes arbitrary and secretive “denials” blasted by human rights advocates. In a functional system these would be the “low hanging fruit” that could rapidly be removed from limbo and given the ability to fully function in our society. But, not in the “Amateur Night at the Bijou” atmosphere fostered by Mayorkas and Garland.

The “strict enforcement” of regulatory requirements on the respondent in this case stands in remarkable contrast with the lackadaisical “good enough for government work” approach of Garland’s BIA and DOJ to the Government’s intentional non-compliance with the statutory requirements for a Notice to Appear (“NTA”).  See, e.g., https://immigrationcourtside.com/2022/02/01/%f0%9f%97%bd%e2%9a%96%ef%b8%8fhon-jeffrey-chase-garland-bias-double-standard-strict-compliance-for-respondents-good-enough-for-govern/ Talk about “double standards” at Garland’s DOJ!

🇺🇸 Due Process Forever!

PWS

02-16-22

Related posts:

  1. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  2. ⚖️🗽🧑🏽‍⚖️”MEDLEY OF INJUSTICE” — CIRCUITS CONTINUE TO LOWER HAMMER 🔨 ON BIA: Anti-Asylum Misogyny; Illegal & Incredibly Stupid “Policies;” “Perplexing” Lack Of Legal Knowledge Highlighted In Latest Batch Of Reversals! — “Attempted rape by a gang of men, in broad daylight on a public street, is especially terrorizing because it powerfully demonstrates the perpetrator’s domination, control over the victim and imperviousness to the law. Requiring evidence of additional harms both minimizes the gravity of the sexual assault and demeans the victim.”
  3. ⚖️🧑🏽‍⚖️JUDICIAL REVIEW — C.A. 2 — Brace Of Bad BIA Bobbles On Basics Brings “Culture Of Denial” Into Focus — Justice Will Continue To Be Illusive @ EOIR 👎🏽 Until Garland Steps Up & Replaces His Fatally Flawed BIA With Real Judges Who Are Progressive Practical Scholars In Immigration, Due Process, Human Rights, With A Firm Commitment To Bringing Racial & Gender Equity To Now-Disgraced Immigration Courts!🤮
  4. FELIPE DE LA HOZ @ THE NATION: “The Shadow Court Cementing Trump’s Immigration Policy” — “It’s not a court anymore, it’s an enforcement mechanism,” said Paul Wickham Schmidt, who was himself chair of the BIA between 1995 and 2001 and now writes a popular immigration blog called Immigration Courtside. “They’re taking predetermined policy and just disguising it as judicial opinions, when the results have all been predetermined and it has nothing to do or little to do with the merits of the cases.”

🗽ATTN NDPA: LAW YOU CAN USE — IN ACTION AND LIVING COLOR! 🎥 — ABA VIDEOS PRESENTS:  “Master Calendar — Episode 1 Of Fighting For Truth, Justice, & The American Way In America’s Most Arcane & Dysfunctional ‘Courts’” — Featuring Blockbuster Due Process Superstars 🤩 Of Stage, Screen, & Internet: Stephanie Baez, Denise Gilman, & Michelle Mendez!

 

🌟 🌟 🌟 🌟 🌟

Stephanie Baez
Stephanie Baez ESQ
Pro Bono Counsel
ABA Commission on Immigration
PHOTO: ABA

🌟 🌟 🌟 🌟 🌟

Denise L.; Gilman
Professor Denise L. Gilman
Clinical Professor, Director Immigration Clinic
UT Austin Law
PHOTO: UTA

🌟 🌟 🌟 🌟 🌟

Michelle N. Mendez
Michelle N. Mendez, ESQ
Director of Legal Resources and Training
National Immigration Project, National Lawyers Guild
PHOTO: NIPNLG

https://www.youtube.com/watch?v=

“Join the ABA Commission on Immigration for a 3-part series on the Mechanics of Immigration Court. This series covers the nuts and bolts of how to practice in immigration court. Part I takes an in depth look at the Master Calendar Hearing and Filing Applications for Relief with Immigration Court. Topics to be covered include reviewing the Notice to Appear, getting your client’s court file, how to prepare for the initial Master Calendar Hearing and what to expect, best practices for appearing via WebEx and Open Voice, and a brief overview of common forms of relief and prosecutorial discretion. This webinar is designed for pro bono attorneys and immigration practitioners who are new to immigration law, or for anyone who wants to brush up on their practical skills.”

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

PLAYING IN HOME, OFFICE, AND CLASSROOM THEATERS NOW!

RATED G — Suitable & Highly Recommended for All Audiences

Win cases, save lives, achieve racial justice, fulfill the wrongfully withheld promises of the U.S. Constitution, force change into a deadly and dysfunctional system that has been weaponized to “Dred Scottify” the other and degrade humanity!

Make an “above the fray” AG finally pay attention to and address the disgraceful, due-process-denying, wasteful mess in “his wholly-owned parody of a court system.” This is what being a lawyer in 21st Century America is all about! 

The video is 1 hour and 15 minutes!

“If you can win a case in this system, everything else in law, indeed in life, will be a walk in the park!”  — Paul Wickham Schmidt, ImmigrationCourtside

Don’t miss the sequel!

🇺🇸Due Process Forever!

PWS

02-16-22

 

Related posts:

  1. THE TRUTH IS OUT, THANKS TO MICHELLE MENDEZ @ CLINIC: Practice Pointers on Matter of Castillo-Perez & “Takeaways” From FOIA Trove On In Absentias!
  2. 🇺🇸😎⚖️🗽👍🏼LAW YOU CAN USE:  Michelle Mendez and CLINIC Publish A New Practice Advisory on Opening & Closing Statements in Immigration Court
  3. ⚖️🗽🧑🏽‍⚖️CAMILLE J.  MACKLER @ JUST SECURITY “GETS IT!” — How Come Judge Garland & The Biden Administration Don’t? — “If we want to re-build a better, stronger immigration system, we need to start with immigration courts.” — Get Involved! Get Angry! Say No To Institutionalized Racism, Misogyny, & Dehumanization (“Dred Scottification”) @ EOIR! Force Judge Garland To Pay Attention! Demand Change, Now!
  4. ⚖️👩🏽‍⚖️ MORE NDPA CLE: Ellsberg, Harris, Schmidt, Among Headliners @ Inaugural Fourth Circuit Asylum Law Conference @ William & Mary Law on March 11!

⚖️NDPA: LAW YOU CAN USE: Professor Geoffrey A. Hoffman Says Success Could Be In Your Background! 😎🗽

Republished from ImmigrationProf Blog:

https://urldefense.com/v3/__https://lawprofessors.typepad.com/immigration/2022/02/guest-post-foreground-and-background-issues-by-geoffrey-a-hoffman.html__;!!LkSTlj0I!GtiDnj-eYO_mcLN0fG2g1OUH6UIraTViIBHbVFCS5G6EmSA6TpFuullv_q9ueiqcr6i08C9xlU9jG7unFbaIZmAGOmUw$

Thursday, February 10, 2022

Guest Post: Foreground and Background Issues by Geoffrey A. Hoffman

By Immigration Prof

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Foreground and Background Issues by Geoffrey A. Hoffman*

I want to say a bit about “foreground” versus “background” issues in immigration cases. I have noticed puzzlement at these concepts and recently when lecturing noticed that people do not appreciate the difference. In addition, it is not a common way of thinking about the law. It has become crucial for me, however, in my experience to clearly and effectively distinguish between these two concepts. It is also a rich source of ideas, strategies and techniques in a variety of cases, so let me try to explain it here. The other motivation for laying out the theory is that (in the future) I can point to this piece of writing as a “backgrounder” for my lectures … Sorry for the pun!

First, what are some foreground issues? You can start by readily imagining the elements of  any claim – take for example an asylum case.  In such a case, the applicant (or a respondent, in court) has the burden to prove most (but not all) of the issues. Those may include past persecution, future persecution, nexus (“on account of” one of the five statutory grounds), etc. The applicant may or may not have to prove that he or she cannot safely internally relocate or that there has been a fundamental change in circumstances in the country of origin. Nevertheless those are all “foreground” issues. Other pretty straightforward issues that have to be adjudicated and will be evaluated by the IJ include (1) credibility; (2) sufficiency of the evidence or corroboration; and (3) related to credibility, the consistency or coherence of the applicant’s story. Of course, background and foreground do not apply just to asylum, but can be imagined in the context of any case, and in any field of the law.

At this point, I would implore students to shout-out any “background” issues they can think of. In a pedestrian sense, all issues that come up in the course of a hearing or series of proceedings can be “brought to light” – by the judge or either party – and therefore get converted from “background” to “foreground.” But, many times these issues are not brought up, and often go unaddressed. If they are not brought up by counsel, for example, they may be waived and therefore a rich source of argument on appeal may be lost.

Some examples of background issues, and by now you probably see where I am going, include, interpreter (verbal) or translation (written) errors, transcription issues, competency or more saliently “incompetency” issues, jurisdiction, firm resettlement, other bars to relief, U.S. citizenship as a defense to deportation, other defenses, the existence of qualified relatives, unexplored avenues for relief, etc., etc. Basically, any issue that is lurking  behind the scenes in any immigration court litigation can be seized upon and (in appropriate cases) be used on appeal when the BIA is reviewing what happened below before the trial judge.

A good example from an actual case may be helpful as an illustration to the reader at this point.

In my first pro bono BIA appeal years ago I utilized a series of “background” issues that resulted successfully (albeit after several months or years) in:  (1) a remand to the IJ; (2) termination of the case on remand; and (3) ultimately,  an (affirmative) grant of asylum for the mother and young child before USCIS. The case involved a young Haitian mother and her 7 or 8 year-old son.  I got the case on appeal and read the transcript immediately.  What struck me on reviewing the record was that at the very beginning of the proceedings, at the Master Calendar Hearing, an attorney or the judge mentioned very briefly in passing that the young boy was deaf. He had a disability that resulted in his being fitted with a device, a cochlear implant. The comment went unexplored or unremarked upon throughout the pendency of proceedings. Ultimately, the judge denied the political asylum claim of the mother. The fact that the child would be persecuted on account of his disability was not argued, mentioned, or even touched upon in the IJ’s decision denying relief.

As appellate counsel, I wondered if this “background” issue might be addressed on appeal. By researching how to make this a “foreground” issue on appeal, and hopefully a basis for a good remand, I learned about a very helpful case, Matter of Lozada (still good law) and was able to follow the rules and strict procedures in that case to prove that the prior attorney was ineffective by failing to bring out a key argument that could have been dispositive of the entire case.

The task was not an easy one. It should not be overlooked that Lozada and the case’s not insignificant requirements are burdensome. Moreover, the motion to remand had to be very thoroughly documented with expert affidavits, NGO reports, witness statements, and not to mention medical documents.

Once remanded, I noticed a further issue: in the file there was a one-page document with an old agency stamp which happened to be a copy of the I-589 asylum application that my client had never received an interview on and which had not been adjudicated.  In bringing this further “background” issue to the Court’s attention, the burden shifted to my opposing counsel to provide the Department’s position on when, if ever, the agency had provided the required affirmative interview as required by Due Process, the INA, and the regulations.

Because the government could not prove that the interview had ever occurred, the motion to terminate was granted and I was permitted to file affirmatively (again) with USCIS, arguing this time the dire circumstances that would befall my clients in Haiti in consideration of the disability of the son and other details about the case involving the political situation in their home country.

Given these considerations, it is important for attorneys on appeal to take the record not as a given, as static, but something dynamic that can be researched and creatively explored at every level.  A part of the case that was not appreciated previously can and often does exist.  It may be a change of law that occurred while the case was winding its way through the lengthy and frustrating backlog (which stands of this writing at 1.6 million cases). It could be misdirection or mistaken advice by notarios or prior counsel. It can take the form of errors, made perhaps innocently and innocuously by interpreters that, if uncorrected, doom the respondent’s chances.

A further point: the retrospective stance of an appeal makes seeing background issues perhaps easier than seeing them in real time. What is really hard sometimes is seeing such issues as they happen in the context of the trial court setting. A key example of such issues that often get overlooked is burden of proof. We often see attorneys conceding deportability or inadmissibility, often overlooking key arguments or defenses. These are not really background but should be foreground issues, especially where the burden is on the government in most situations to prove by clear and convincing evidence the ground of deportability, now removability, has been proven. Other key arguments, for example, surrounding admissibility of statements of ICE officers, or others such as in the I-213 record of inadmissibility / deportability are also largely overlooked.

Finally, I want to mention in closing further fall-out from Niz-Chavez v. Garland and Pereira v. Sessions, and the latest developments surrounding the defective NTA issue. The defective NTA problem is probably one of the most underappreciated “background” issues because it implicates “jurisdiction,” or as the Board has left open, and it still remains to be decided, at the very least a “claims-processing” rule violation.

More specifically, for everyone who has an in absentia order, the rule in Rodriguez v. Garland, 15 F.4th 351, 354–56 (5th Cir. 2021), in the Fifth Circuit, and more recently, Singh v. Garland, (No. 20-70050), in the Ninth Circuit, has given us important opportunities to raise this as a crucial background issue.  Even though these cases are at odds now with Matter of Laparra, 28 I&N Dec. 425 (BIA 2022), there are two circuits finding that in absentia orders must be reopened where the NTA was defective under most circumstances.

Given these developments there is no question that the defective NTA issue is not going away anytime soon.   And if, as I think the Board will soon find, a defective NTA is indeed a claims-processing rule violation, at the very least, it will be important to raise such a “background” issue to reopen proceedings, obtain a remand, or otherwise preserve the procedural issue to ensure relief is available for many respondents.

 

*Clinical Professor, University of Houston Law Center; Individual Capacity and institution for identification only

KJ

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

Thanks, Geoffrey, for giving us such a timely and much-needed dose of your “accessible practical scholarship!” And, as always, thanks to Dean Kevin Johnson and ImmigrationProf Blog for getting this out to the public so quickly.

I’d pay particular attention to Geoffrey’s “red alert’ ❗️about defective NTA issues and the BIA’s flailing effort to again shun the Supremes and best practices in Matter of Laparra — a decision that has been “thoroughly roasted” by “Sir Jeffrey” Chase and me, among others.  See, e.g.,https://immigrationcourtside.com/2022/02/01/%f0%9f%97%bd%e2%9a%96%ef%b8%8fhon-jeffrey-chase-garland-bias-double-standard-strict-compliance-for-respondents-good-enough-for-govern/

Laparra is already in trouble in two Circuits at opposite ends of the spectrum — the 9th and the 5th. As Geoffrey points out, the potential of “counter-Laparra” litigation to force some due process back into both the trial and appellate levels of Garland’s dysfunctional “courts” is almost unlimited! 

But, litigation challenging Laparra and raising defective NTAs as a “claims processing rule” must be timely raised at the first opportunity. It’s a great example of “background issues” that talented NDPA litigators must “bring to the foreground” and use to save lives! It also shows the importance of great practical scholarship and meticulous preparation. Good lawyering wins!

Thanks again Geoffrey!

🇺🇸Due Process Forever!

Related posts:

  1. ⚖️👍🏼😎LAW YOU CAN USE: Professor Geoffrey Hoffman Tells Us How To Use Niz-Chavez v. Garland To Fight DHS/EOIR’s “Fake Date NTA” Travesty!
  2. 👎🏽“GOOD ENOUGH FOR GOVERNMENT WORK” IS GOOD ENOUGH FOR GARLAND! ☹️ — FUNDAMENTALLY UNFAIR HEARINGS, BOGUS IN ABSENTIA REMOVAL ORDERS, UNREASONED PSG DENIALS, FAILURE TO FOLLOW CIRCUIT & OWN PRECEDENTS — The Life-Threatening ☠️☠️⚰️⚰️🪦 Errors Continue To Flow From EOIR’s “Culture Of Denial” — What’s Missing? — Accountability, Judicial Excellence, Due Process, Fundamental Fairness!
  3. 🌬🤯MORE BLOWBACK FOR GARLAND’S “COURTS” — Problems Emerge On Credibility (1st Cir., 10th Cir.), Agfel (9th Cir.)
  4. ☹️HE BEAT THE GOVERNMENT TWICE IN COURT — But, After Three Years In Jail Without Being Charged With Any Crime, Omar Ameen Still Can’t Get A Bond From Garland’s Courts —  How Can A System Where The Prosecutor Makes The Rules & Picks The Judges, Mostly From The Ranks Of Former Prosecutors, Provide The “Fair & Impartial Judging” Required By Due Process?

😎NYLAG WINS SETTLEMENT REQUIRING BIA TO MAKE UNPUBLISHED DECISIONS PUBLIC! — NYLAG v. Board of Immigration Appeals

NDPA Superstar Liz Gibson (“The Gibson Report”) sends this item:

From: Beth Goldman <BGoldman@nylag.org>

Sent: Thursday, February 10, 2022 11:03 AM

To: NYLAG All <nylagall@nylag.org>

Subject: Victory for Immigrants and Their Advocates!

 

All,

I am proud to share that NYLAG and co-counsel Public Citizen reached a historic settlement in NYLAG v. Board of Immigration Appeals (18 Civ. 9495 (S.D.N.Y.)). Under the settlement entered last night, the Board of Immigration Appeals (BIA) will for the first time make the vast majority of its decisions available to the public by publishing them online, helping to level the playing field for immigrants.

NYLAG brought this case to challenge the BIA’s longstanding failure to make its judicial decisions publicly available, which meant that neither immigrants nor their attorneys could access these crucial documents to help them defend their cases and seek relief. This gave an unfair advantage to the government’s lawyers, who could access these same decisions to advocate for removal of NYLAG’s clients and immigrants across the country, in proceedings already stacked against them. To challenge this practice, NYLAG made a request under the Freedom of Information Act (FOIA) that BIA post all of its final orders in immigration cases in its electronic reading room– which FOIA has required since 1996 for all federal agencies.

Last February, NYLAG and co-counsel Public Citizen won a critical victory in the case, when the U.S. Court of Appeals for the Second Circuit ruled that people can sue to enforce the FOIA requirement that federal agencies post certain documents online so that they are accessible to the public.

Last night, the United States District Court for the Southern District of New York approved the settlement agreement between NYLAG and the BIA, under which the BIA has agreed to place nearly all its opinions into an online reading room. This will ensure that immigrants and immigration advocates across the country (including NYLAG’s own Immigrant Protection Unit’s staff and clients) will have access to these opinions within six months of when they are issued. The Board also must post prior decisions dating back to 2016.

This victory is a testament to NYLAG’s ability to create large-scale change. Kudos to the NYLAG attorneys involved in this case – Danielle Tarantolo, Jessica Ranucci, and Jane Stevens (before her retirement) of SLU; and Jodi Ziesemer and Melissa Chua of IPU –and our dedicated co-counsel at Public Citizen. This victory could not have been achieved without their partnership, diligence, and hard work.

Beth

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

Congrats to all concerned! As noted in Beth Goldman’s last paragraph, while Garland has been reluctant to make progressive changes and to bring much needed management and substantive reforms to EOIR, advocacy groups have been able to force some systemic improvements through litigation. 

It seems like a wise AG would “clean out the deadwood” @ EOIR and bring in dynamic experts who can solve problems and make the necessary changes to restore due process to his ridiculously broken system. But, that apparently would be an AG “other than Garland.”

🇺🇸Due Process Forever!

PWS

02-10-22

Related posts:

  1. THE GIBSON REPORT — 03-01-21 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group — FEATURING: Under The EOIR Big Top 🎪 Robed TV Carnival Barkers Hand Out Death Sentences ☠️ With Ignorance, Indolence, Indifference, & Insult To Injury!
  2. 🧑🏽‍⚖️⚖️🗽🇺🇸WHO’S JUDGE IS IT ANYWAY? — The Crisis Of Independence In Our Immigration Courts! — Coming April 7, 2021! — Sponsored By The HNBA! — Don’t Miss It!
  3. THE GIBSON REPORT — 08-30-21 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group
  4. ⚖️THE GIBSON REPORT — 02-07-22 — Compiled By Elizabeth Gibson Esquire, NY Legal Assistance Group — BONUS: “Ethics On Vacation @ DHS & DOJ”

🔥BURNED AGAIN! — Garland’s BIA Torched By 2d Cir. For Multiple Errors In Legal Standards Relating To Asylum,Withholding, & CAT! — Ojo v. Garland

 

https://www.ca2.uscourts.gov/decisions/isysquery/cc2301b5-aa22-4767-9199-a8061927397c/1/doc/19-3237_complete_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/cc2301b5-aa22-4767-9199-a8061927397c/1/hilite/

Ojo v. Garland, 2d C ir., 02-09-22, published 

PANEL: CHIN, BIANCO, AND MENASHI, Circuit Judges.

OPINION: JOSEPH F. BIANCO, Circuit Judge

DISSENTING OPINION: MENASHI, Circuit Judge

SUMMARY BY COURT:

Olukayode David Ojo, a native of Nigeria, seeks review of a September 27, 2019 decision of the Board of Immigration Appeals affirming an April 15, 2019 decision of an immigration judge, which denied asylum, withholding of removal, and relief under the Convention Against Torture. See In re Olukayode David Ojo, No. A088-444-553 (B.I.A. Sept. 27, 2019), aff’g No. A088-444-553 (Immigr. Ct. N.Y.C. Apr. 15, 2019).

We grant Ojo’s petition for review and vacate the agency’s denial of Ojo’s claims for asylum, withholding of removal, and CAT protection because those determinations were permeated with several legal and procedural errors. First, insofar as Ojo’s request for asylum was rejected as untimely, the agency applied the wrong legal standard to his claim of changed circumstances and the agency’s alternative discretionary determination failed to indicate the requisite examination of the totality of the circumstances. Second, with respect to Ojo’s application for withholding of removal, the agency erred when it incorrectly categorized his federal conviction for wire fraud and identity theft as “crimes against persons,” and concluded that they fell within the ambit of “particularly serious crimes” without evaluating the elements of the offenses as required under the agency’s own precedent. Finally, with respect to his CAT claim, the agency erred in concluding that Ojo lacked a reasonable fear of future persecution or torture in Nigeria due to his status as a criminal deportee without even addressing the declaration of his expert supporting his claim.

Accordingly, the petition for review is GRANTED, the BIA’s decision is VACATED, and the case is REMANDED to the BIA for further proceedings consistent with this opinion.

JUDGE MENASHI dissents in a separate opinion.

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

The majority opinion is 51 pages; Judge Menashi’s dissent another 35 pages. That’s 86 pages of Article III time trying to straighten out the BIA’s sloppy work and mis-application of basic legal concepts. 

It would be in everyone’s best interests if Garland jettisoned his “Miller Lite holdover BIA” and replaced them with real appellate judges — experts in human rights and asylum law with reputations for careful practical, due-process-focused scholarship — Judges like his sole BIA appointment to date, Judge Andrea Saenz.

It’s painfully obvious that the out of control problems in immigration law will NOT be solved with the BIA currently in place. They lack the expertise, temperament, and background to get “the retail level of our justice system” back on track. 

As this case, among others, illustrates, Garland’s failure to institute long overdue personnel and quality control reforms at EOIR is continuing to “bleed over” into the Article IIIs, occupying an increasing amount of their time. It also creates astounding inconsistencies among Circuits and among panels in the same Circuit. Garland’s “personal court system” is dysfunctional on multiple levels and is sowing more dysfunction throughout our justice system!

Garland and his lieutenants, including “above the fray” Solicitor General Liz Prelogar, also should take a look at the OIL “defense” in this case. It’s basically this: 

“The respondent is a bad guy. So, it doesn’t matter if the BIA applies the wrong legal standards because they have discretion to deport any bad guy for any reason or even for the wrong reason. Even if the BIA didn’t do its job, you, Court of Appeals, should do it for them because, as we said, this is one bad dude who needs deporting. Did we mention that he’s a bad guy?”

The combined abysmal performance of EOIR and OIL, enhanced by the lack of leadership and engagement from Garland and his senior managers, is eroding the foundations of the U.S. legal system at an alarmingly rapid rate!

The majority was written by Judge Joseph F. Bianco, a recent Trump appointee; the dissenter, Judge Steven Menashi, is also a Trump appointee whose rise from right-wing “campus troll” to the Federal Bench was controversial. See, e.g., https://www.vox.com/policy-and-politics/2019/9/12/20858813/steven-mensashi-ethnonationalism-trump-nominee.

I will say that at least he thought about, analyzed, and explained his views in much greater detail than the so-called “subject matter experts” at the BIA.

The answer is to replace the ongoing “EOIR Clown Show” 🤡 with real expert judges, at both the trial and appellate levels, who will consistently get these right in the first (or second) instance. That would “move” dockets (without violating rights), reduce the burdens on the Article IIIs, and promote (rather than actively undermine) consistency. It would also produce a consistent body of judicial scholarship on due process, racial justice, and best judicial practices in immigration, human rights, and fundamental Constitutional law that would help guide and solve systemic problems in the overall Federal legal system.

Why not bring in the talent and creative problem solving to turn a disgraceful, deadly, resource-wasting failure into a model judiciary? It’s a question that Garland has yet to answer!

🇺🇸Due Process Forever!

PWS

02-10-22

Related posts:

  1. 🆘🤮IS 11TH CIR. GROWING WEARY OF GARLAND’S SCOFFLAW BIA? —Two Trips To The Circuit, & The BIA Still Violates Own Regulations, Ignores Precedent, Spouts Gibberish While OIL’s Defense Of This Nonsense & Malfeasance By EOIR Raises Serious Ethical Questions! — THAMOTAR v. U.S. ATT’Y GEN. — Garland’s Dysfunctional & Systematically Unjust Courts Undermine OUR Democracy☠️ — Demand An IMMEDIATE End To The Scofflaw Nonsense🤡 🧹 At OUR Justice Department! 🏴‍☠️
  2. ⚖️🧑🏽‍⚖️JUDICIAL REVIEW — C.A. 2 — Brace Of Bad BIA Bobbles On Basics Brings “Culture Of Denial” Into Focus — Justice Will Continue To Be Illusive @ EOIR 👎🏽 Until Garland Steps Up & Replaces His Fatally Flawed BIA With Real Judges Who Are Progressive Practical Scholars In Immigration, Due Process, Human Rights, With A Firm Commitment To Bringing Racial & Gender Equity To Now-Disgraced Immigration Courts!🤮
  3. ⚖️🗽🧑🏽‍⚖️”MEDLEY OF INJUSTICE” — CIRCUITS CONTINUE TO LOWER HAMMER 🔨 ON BIA: Anti-Asylum Misogyny; Illegal & Incredibly Stupid “Policies;” “Perplexing” Lack Of Legal Knowledge Highlighted In Latest Batch Of Reversals! — “Attempted rape by a gang of men, in broad daylight on a public street, is especially terrorizing because it powerfully demonstrates the perpetrator’s domination, control over the victim and imperviousness to the law. Requiring evidence of additional harms both minimizes the gravity of the sexual assault and demeans the victim.”
  4. 😎WIN ONE, LOSE ONE☹️:  9TH CIR. ANNIHILATES MATTER OF ARMENDAREZ-MENDEZ (SUA SPONTE REOPENING), WHILE 11TH  CIR. WOODENLY ENDORSES 👎🏻 MATTER OF L-E-A- (NEXUS)!☠️⚰️

⚖️THE GIBSON REPORT — 02-07-22 — Compiled By Elizabeth Gibson Esquire, NY Legal Assistance Group — BONUS: “Ethics On Vacation @ DHS & DOJ”

 

Elizabeth Gibson
Elizabeth Gibson
Attorney, NY Legal Assistance Group
Publisher of “The Gibson Report”

PRACTICE ALERTS

 

Mandatory E-Filing with EOIR, Starting FRIDAY

 

EOIR Updates

EOIR: EOIR reminds interested stakeholders that hearings on Feb. 8, 2022, and beyond will proceed as scheduled, subject to local operational and case-specific decisions. Please monitor EOIR’s website for information about the agency’s operations nationwide.

EOIR NYC: In an effort to provide more clarity on operations at each of the NYC immigration courts from Feb. 8 onward, [EOIR] is providing additional guidance. See attached.

 

EADs Valid Longer

USCIS: In the interest of reducing the burden on both the agency and the public, USCIS has revised its guidelines to state that initial and renewal EADs generally may be issued with a maximum validity period of up to 2 years for asylees and refugees, noncitizens with withholding of deportation or removal, and VAWA self-petitioners; or up to the end of the authorized deferred action or parole period to applicants in these filing categories

 

NEWS

 

After review, U.S. maintains border policy of expelling migrants, citing Omicron

CBS: After a recent internal review, the Biden administration decided to maintain a pandemic-era order put in place under former President Donald Trump that authorizes the rapid deportation of migrants from the U.S.-Mexico border, the Centers for Disease Control and Prevention (CDC) told CBS News Thursday.

 

Bill Aims to Remove US Immigration Courts from Executive Branch

VOA: U.S. House Representative Zoe Lofgren, a Democrat from California who leads the House Subcommittee on Immigration and Citizenship, unveiled the legislation Thursday.

 

148 Groups Ask Biden To Fund $50M For Migrant Atty Access

Law360: A group of 148 organizations supporting immigrant and civil rights sent a letter to President Joe Biden and congressional leaders urging them to allocate at least $50 million to provide “immediate and dramatic” expansion of legal representation for people facing immigration proceedings.

 

83,000 Afghans Made It To The US. Now They Need Lawyers

Law360: The arrival in the United States of 83,000 displaced Afghans following the military’s withdrawal from Afghanistan over the summer has put stress on the already overburdened immigration system and created an access to justice crisis that Congress needs to address, attorneys say. See also Additional $1.2 billion in resettlement assistance authorized earlier this week by President Biden.

 

Internal documents show heated back-and-forth between DeSantis and Biden admin over care of migrant children

CNN: An ongoing feud over President Joe Biden’s immigration policies is escalating in Florida where Gov. Ron DeSantis is threatening to keep long-standing shelters from caring for migrant children, culminating in a heated back and forth unfolding in internal correspondence obtained by CNN.

 

Feds Pressed To Free Immigrant Detainees As Ill. Ban Kicks In

Law360: Immigrant rights groups urged the Biden administration on Tuesday to release people held in immigration detention in Illinois amid fears that U.S. Immigration and Customs Enforcement will send the detainees out of state as Illinois shuts down its last two detention centers.

 

Mexican authorities evict Tijuana migrant camp near border

WaPo: About a hundred members of the police, National Guard and army on Sunday evicted 381 migrants, mainly Central Americans and Mexicans, from a makeshift camp they had been staying in for almost a year in Tijuana at the U.S. border crossing.

 

Robot Dogs Take Another Step Towards Deployment at the Border

DHS: “The southern border can be an inhospitable place for man and beast, and that is exactly why a machine may excel there,” said S&T program manager, Brenda Long. “This S&T-led initiative focuses on Automated Ground Surveillance Vehicles, or what we call ‘AGSVs.’ Essentially, the AGSV program is all about…robot dogs.”

 

LITIGATION/CASELAW/RULES/MEMOS

 

BIA Reinstates Removal Proceedings After Finding §2C:35-10(a)(1) of New Jersey Statutes Annotated Is Divisible with Respect to Specific Substance Possessed

AILA: BIA found §2C:35-10(a)(1) of New Jersey Statutes Annotated is divisible and the record of conviction can be reviewed under the modified categorical approach to determine whether the specific substance possessed is a controlled substance under federal law. (Matter of Laguerre, 1/20/22)

 

BIA Dismisses Appeal After Finding §714.1 of Iowa Code Is Divisible with Regard to Type of Theft

AILA: BIA found Iowa Code §714.1 is divisible with respect to whether a violation of it involved theft by taking without consent or theft by fraud or deceit, permitting use of modified categorical approach to determine whether violation involved aggravated felony theft. (Matter of Koat, 1/27/22)

 

BIA Rules Respondent’s Conviction for Conspiracy to Commit Wire Fraud Constitutes a Particularly Serious Crime

AILA: BIA found the amount of forfeiture ordered in a criminal proceeding may be considered in determining whether a crime of fraud or deceit resulted in a loss to victim(s) exceeding $10,000, if the amount ordered is sufficiently traceable to the conduct of conviction. (Matter of F-R-A-, 2/3/22)

 

Unpub. BIA Termination Victory

LexisNexis: Helen Harnett writes: “I thought you might be interested in this BIA decision. The IJ terminated proceedings because the NTA did not contain a time or date.”

 

CA1 Holds That Irregularities in “Record of Sworn Statement” Lacked Sufficient Indicia of Reliability for Use in Assessing Credibility

AILA: In light of unexplained irregularities in the record, the court vacated the BIA’s denials of withholding of removal and relief under the Convention Against Torture (CAT) and remanded to the agency for further factfinding. (Bonilla v. Garland, 1/12/22)

 

CA1 Says Conviction in Rhode Island for Driving a Motor Vehicle Without Consent Is Not Categorically a Theft Offense

AILA: The court held that the petitioner’s conviction for driving a motor vehicle without consent of the owner or lessee under Rhode Island General Laws (RIGL) §31-9-1 did not constitute a categorical aggravated felony theft offense. (Da Graca v. Garland, 1/18/22)

 

CA1 Holds That BIA Properly Applied Heightened Matter of Jean Standard to Petitioner’s Waiver Request

AILA: The court held that the BIA adequately considered the question of extraordinary circumstances called for in Matter of Jean, and found it lacked jurisdiction to consider the relative weight the BIA gave the evidence in denying the inadmissibility waiver. (Peulic v. Garland, 1/11/22)

 

CA4 Finds That “Prosecution Witnesses” Is Not a PSG

AILA: The court agreed with the BIA that the Honduran petitioner’s proposed particular social group (PSG) of “prosecution witnesses” lacked particularity, and found no error in the BIA’s decision upholding the IJ’s adverse credibility finding as to petitioner. (Herrera-Martinez v. Garland, 1/5/22)

 

CA4 Finds BIA Abused Its Discretion in Denying Continuance to Petitioner with Pending U Visa Application

AILA: Where the petitioner had a pending U visa application, the court held that the BIA abused its discretion in denying his motion for a continuance, finding that the BIA had departed from precedential opinions in holding that he had failed to show good cause. (Garcia Cabrera v. Garland, 1/6/22)

 

4th Circ. Revives Guatemalan Asylum Case Over Family Ties

Law360: The Fourth Circuit breathed new life into a Guatemalan migrant’s asylum case, faulting an immigration judge for failing to tie death threats that the man received to his son, who was targeted for gang recruitment.

 

CA5 Finds Proposed PSG of Honduran Women Unable to Leave Domestic Relationship Was Not Cognizable

AILA: The court concluded that the BIA did not abuse its discretion in holding that the petitioner’s proposed particular social group (PSG)— “Honduran women who are unable to leave their domestic relationships”—was not legally cognizable. (Jaco v. Garland, 10/27/21, amended 1/26/22)

 

CA5 Finds Petitioner Removable Under INA §237(a)(2)(A)(ii) for Having Been Convicted of Two CIMTs After Admission

AILA: The court concluded that res judicata did not bar the removal proceedings, deadly conduct was categorically a crime involving moral turpitude (CIMT), and petitioner was admitted to the United States when he adjusted to lawful permanent resident (LPR) status. (Diaz Esparza v. Garland, 1/17/22)

 

CA5 Says Government Rebutted Presumption of Future Persecution Based on Guatemalan Petitioner’s Sexual Orientation and Identity

AILA: The court held that because petitioner, who was homosexual and identified as transgender, had said that she could probably safely relocate in Guatemala, the BIA did not err in finding that the government had rebutted the presumption of future persecution. (Santos-Zacaria v. Garland, 1/10/22)

 

CA5 Upholds Withholding of Removal Denial to Petitioner with Felony Assault Conviction

AILA: The court affirmed the BIA’s determination that petitioner’s felony assault conviction was a particularly serious crime rendering him ineligible for withholding of removal, because he had failed to show how the alleged errors compelled reversal. (Aviles-Tavera v. Garland, 1/4/22)

 

CA5 Withdraws Prior Opinion and Issues Substitute Opinion in Parada-Orellana v. Garland

AILA: The court denied the petitioner’s petition for panel rehearing, withdrew its prior panel opinion of 8/6/21, and held that the BIA did not abuse its discretion by applying an incorrect legal standard when it denied petitioner’s motion to reopen. (Parada-Orellana v. Garland, 1/3/22)

 

CA6 Finds Petitioner Forfeited Ineffective Assistance Claim Because He Failed to Comply with Third Lozada Requirement

AILA: The court held that BIA did not abuse its discretion in denying the motion to reopen based on ineffective assistance, finding that Matter of Lozada requires more than a statement that the noncitizen is “not interested” in filing a bar complaint.(Guzman-Torralva v. Garland, 1/13/22)

 

CA7 Upholds Asylum Denial to Christian Chinese Petitioner Who Acknowledged Discrepancies in Her Asylum Application

AILA: The court held that the record supported the IJ’s and BIA’s conclusion that the Chinese Christian petitioner did not meet her burden of establishing her eligibility for asylum given the discrepancies in her testimony and the lack of corroborative evidence. (Dai v. Garland, 1/24/22)

 

CA7 Says BIA Legally Erred by Considering Arguments That the Government First Raised on Appeal

AILA: The court held that the BIA legally erred by considering arguments that the government did not present to the IJ, and that the BIA engaged in impermissible factfinding on the conditions in Kosovo, rendering its decision to deny remand an abuse of discretion. (Osmani v. Garland, 1/24/22)

 

CA8 Upholds BIA’s Decision Denying Motion to Reopen Even Though Petitioner Made a Prima Facie Case for Relief

AILA: The court held that the BIA did not abuse its discretion in denying petitioner’s successive motion to reopen, and that the BIA did not deprive the petitioner of a constitutionally protected liberty interest in declining to reopen proceedings sua sponte. (Urrutia Robles v. Garland, 1/26/22)

 

CA9 Holds That BIA Sufficiently Complied with Notice Requirements Applicable to a Minor in Immigration Proceedings

AILA: The court rejected the petitioner’s contention that, because she was actually a minor when she was released on her own recognizance without notice of her hearing to a reasonable adult, the notice provided her was inadequate. (Jimenez-Sandoval v. Garland, 1/13/22)

 

CA9: Panel Nixes Deportation For Missing Court, Cites Faulty Notice

Law360:An Indian man can’t be deported for missing an immigration court date after he received a notice to appear that didn’t specify a date and time, even though that information came in a later notice, the Ninth Circuit has ruled.

 

CA9 Finds Petitioner’s Conviction for Arson in California Was Not an Aggravated Felony

AILA: The court held that arson in violation of California Penal Code (CPC) §451 was not a categorical match to its federal counterpart, and thus that the petitioner’s conviction under CPC §451(b) was not an aggravated felony that rendered him removable. (Togonon v. Garland, 1/10/22)

 

CA9 Declines to Rehear Velasquez-Gaspar v. Garland En Banc

AILA: The court issued an order denying the rehearing en banc of  Velasquez-Gaspar v. Garland, in which the court upheld the BIA’s conclusion that the Guatemalan government could have protected the petitioner had she reported her abuse. (Velasquez-Gaspar v. Garland, 1/25/22)

 

CA11 Finds Petitioner Failed to Prove That Florida’s Cocaine Statute Covers More Substances Than the Federal Statute

AILA: The court held that the petitioner, who had been convicted of cocaine possession under Florida law, had failed to show that Florida’s definition of cocaine covers more than its federal counterpart, and thus upheld the BIA’s denial of cancellation of removal. (Chamu v. Att’y Gen., 1/26/22)

 

Feds Fight Detention Probe In Migrant Counsel Access Suit

Law360: The U.S. Department of Homeland Security urged a D.C. federal court to halt immigration advocates’ efforts to inspect a large detention center accused of denying detainees access to counsel, calling a probe “particularly intrusive” amid debate over the lawsuit’s viability.

 

EOIR to Close Fishkill Immigration Court

AILA: EOIR will close the Fishkill Immigration Court due to the closure of the Downstate Correctional Facility in which the court is located. Holding hearings at the location will cease at close of business on February 17, 2022. Pending cases at time of closure will transfer to Ulster Immigration Court.

 

Form Update: Form I-864, Affidavit of Support Under Section 213A of the INA, Form I-864W, Request for Exemption for Intending Immigrant’s Affidavit of Support, Form I-864EZ, Affidavit of Support Under Section 213A of the Act

USCIS: Starting April 7, 2022, we will only accept the 12/08/21 edition.

 

Form Update: Form I-824, Application for Action on an Approved Application or Petition

USCIS: Starting April 7, 2022, we will only accept the 12/02/21 edition.

 

RESOURCES

·         AILA: Practice Alert: Escalating Problems with Virtual Hearings and Contacting the Court

·         AILA: Can They Do It? The Myth of the Tech-Challenged Client

·         AILA: Sleep Debt: A Contributing Factor for Ethics Mishaps

·         AILA: Practice Alert: Local OPLA Guidance on Prosecutorial Discretion

·         AILA: Practice Alert: In-Person Asylum Interviews Return But COVID-19 Precautions Continue

·         AILA: Practice Resource: Fraudulent Document Standard and Matter of O–M–O–

·         AILA: Taking the Measure of Lozada

·         AILA Meeting with the USCIS Refugee, Asylum & International Operations Directorate 

·         ASAP: February Updates

·         Asylos

o    The Bahamas: State protection for families of gang members who face persecution by gangs (AME2021-15)

o    Iraq: Situation of divorced, single mothers in Iraqi Kurdistan (MEN2021-19)

o    Hungary: Treatment of Roma Women and State Protection (CIS2021-09)

o    Russia: Domestic Violence (CIS2021-08)

·         CLINIC: Department of Homeland Security (DHS), I-9 and REAL ID Policies

·         CLINIC: COVID & U.S. Citizenship and Immigration Services (USCIS)

·         CLINIC: COVID & Department of State

·         CLINIC: COVID & ICE

·         CLINIC: COVID & EOIR

·         MPI: Four Years of Profound Change: Immigration Policy during the Trump Presidency

·         USCIS Statement on the International Day of Zero Tolerance for Female Genital Mutilation

·         USCIS: Overview of myUSCIS for Applicants

 

EVENTS

 

 

ImmProf

 

Monday, February 7, 2022

·         U.S. Hispanic population continued its geographic spread in the 2010s

Sunday, February 6, 2022

·         Poetry Break: Immigration by Ali Alizadeh

·         Refugee Olympic Team at 2022 Winter Olympics in Beijing?

·         After review, Biden Administration maintains Title 42 border policy of expelling migrants

Saturday, February 5, 2022

·         WaPo Debunks JD Vance Talking Points on Biden & Unlawful Migration

·         NPR Politics Podcast: Democratic Activists Say Biden Has Failed To Deliver On Immigration Promises

Friday, February 4, 2022

·         From the Bookshelves: Joan is Okay by Weike Wang

·         The Toll of MPP (Remain in Mexico Policy) on Children

·         “The Disillusionment of a Young Biden Official” by Jonathan Blitzer for The New Yorker

·         Bill Introduced in Congress to Make Immigration Courts More Independent

·         Shalini Bhargava Ray on “Shadow Sanctions for Immigration Violations” in Lawfare

Thursday, February 3, 2022

·         Border Patrol to Use Robot Dogs

·         DACA Recipients Continue to Contribute

·         Immigration Article of the Day: Restructuring Public Defense After Padilla by Ingrid Eagly, Tali Gires, Rebecca Kutlow & Eliana Navarro Gracian

Wednesday, February 2, 2022

·         New TPS Advocated for Migrants from Honduras, Guatemala, El Salvador, and Nicaragua

·         San Francisco apologizes for history of racism, discrimination against Chinese Americans

·         A Mexican American is the first Latina president of Harvard Law Review

·         From the Bookshelves: Go Back to Where You Came From: And Other Helpful Recommendations on How to Become American by Wajahat Ali

·         MPI Releases Report on Immigration Policy Changes During Trump Administration

·         Covid infections surge in immigration detention facilities

Tuesday, February 1, 2022

·         In Today’s WTF Deportation News

·         DeSantis Plays Politics with the Lives of Migrants

·         Congress, not Biden, should be held accountable for immigration reform

Monday, January 31, 2022

·         WES: Canada’s Enduring Appeal to Prospective Immigrants in the Face of COVID-19

·         Race, Sovereignty, and Immigrant Justice Conference

·         AB 1259 Extends Post-Conviction Relief to Trial Convictions in California That Lack Immigration Advisal

·         From the Bookshelves: No One is Illegal: Fighting Racism and State Violence on the U.S.-Mexico Border by Justin Akers  Chacón and Mike Davis

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Liz’s “Item 4” under “Litigation,” upholding termination for a statutorily defective NTA, inspired the following additional thoughts.

ETHICS ON VACATION @ DHS & DOJ: Apparently a Frivolous DHS Appeal Asking BIA To Publish Intentional Misconstruction of 7th Circuit Law is SOP For Mayorkas, Garland, & Underlings! 

By Paul Wickham Schmidt

Courtside Exclusive

Feb. 9, 2022

So, DHS argues on appeal that the BIA should violate, and intentionally and dishonestly, “misconstrue” 7th Circuit precedent. And, for a good measure, publish the result to insure that no IJ in the 7th Circuit gets it right in the future. 

BIA Chairman Wetmore, a former OILer who, whatever his shortcomings might be, does recognize the importance of not “overtly dissing” the Article IIIs, correctly says “No.” Perhaps, as suggested by my colleague Hon. “Sir Jeffrey” Chase, Wetmore had in mind that the 7th Circuit previously threatened to hold the Board in contempt for willfully ignoring its orders. See   https://immigrationcourtside.com/2020/01/25/contempt-for-courts-7th-cir-blasts-bia-for-misconduct-we-have-never-before-encountered-defiance-of-a-remand-order-and-we-hope-never-to-see-it-again-members-of-the-board-must-count-themse/

Why aren’t there ethical problems with this outrageous, unprofessional DHS appellate argument? Why isn’t this a precedent, as it provides helpful guidance and can be used to prevent future frivolous litigation by DHS? Why is there no accountability for this frivolous appeal, request to publish, and the blatant effort by DHS counsel to “pull the wool over the eyes” of the IJ and the BIA?

The pattern of taking a frivolous appeal, making unethical arguments, and asking the BIA to publish as a precedent shows the arrogant view of ICE that they “have EOIR in their pocket” (certainly consistent with the Sessions/Barr rhetoric) and that there will be neither accountability nor consequences for frivolous and unethical conduct by DHS attorneys! By not publishing the result as a precedent, the BIA leaves it open for other IJs and single Appellate Judge BIA “panels” to get it wrong in the future. It also sends a signal that taking a whack at making misleading arguments for illegal and unethical results has no downside at Mayorkas’s DHS or Garland’s BIA.

Wonder why there are gross inconsistencies and endless backlogs at EOIR?  A totally undisciplined, unprofessional system where “anything goes” and “almost anything” will be defended in pursuit of removal orders certainly has something to do with it! It’s simply been building, under Administrations of both parties, since 2001!

The one-sided BIA precedent process — publishing mainly cases favorable to DHS — is no accident either. Pro-DHS rulings can be used by OIL (correctly or incorrectly) to argue for so-called “Chevron deference” or its evil cousin “Brand X” disenfranchisement of Article III Judges.

By contrast, precedents favorable to individuals merely promote due process, fundamental fairness, best practices, consistency, and efficiency. They might also be used to curb misbehavior by IJs and DHS counsel. Nothing very important in the eyes of EOIR’s DOJ political overlords.

GOP AGs, from Ashcroft through Sessions and Barr, have made it clear that precedents favorable to DHS Enforcement are far less likely to be “career threatening” or “career limiting” for their “captive judges.” On the other hand, precedents  standing for due process, vindicating migrants’ rights, or curbing “outlier” behavior by IJs and DHS attorneys can be risky. And, perhaps surprisingly, Dem AGs in the 21st Century also have been “A-OK” with that, as Garland demonstrates on a daily basis.

Where are Ur Mendoza Jaddou (yes, she’s at USCIS, not ICE,  but she’s “upper management,” knows the issues, and has access to Mayorkas) and Kerry Doyle at DHS? Whatever happened to Lisa Monaco, Vanita Gupta, and Lucas Guttentag at DOJ? 

These are the types of “real time” problems that leadership can and should be solving by setting a “no nonsense due process first” tone and bringing in and empowering expert Appellate Judges (“real judges”) and DHS Chief Counsel who will put due process, fundamental fairness, and ethics foremost! But, apparently it’s “below the radar screen” of Biden Administration leadership at DHS and DOJ.

The case for an independent Article I Court has never been stronger! Garland’s lack of leadership and furthering of injustice adds to Chairperson Lofgren’s case for fundamental change and removal of EOIR from DOJ, every day!

 Due Process Forever!

PWS

02-09-22

Related posts:

  1. 🆘🤮IS 11TH CIR. GROWING WEARY OF GARLAND’S SCOFFLAW BIA? —Two Trips To The Circuit, & The BIA Still Violates Own Regulations, Ignores Precedent, Spouts Gibberish While OIL’s Defense Of This Nonsense & Malfeasance By EOIR Raises Serious Ethical Questions! — THAMOTAR v. U.S. ATT’Y GEN. — Garland’s Dysfunctional & Systematically Unjust Courts Undermine OUR Democracy☠️ — Demand An IMMEDIATE End To The Scofflaw Nonsense🤡 🧹 At OUR Justice Department! 🏴‍☠️
  2. THE GIBSON REPORT— 01-02-22 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group — Garland’s Aimless Docket Reshuffling (“ADR”) Squeezes Refugees On Both Ends Of His Ludicrous Backlog, As Those Patiently Waiting Given Court Dates Nearly A Decade In The Future, While Recent Arrivals Mindlessly Rocketed To The “Front Of The Line” Struggle To Find Lawyers & Prepare Cases — Plus Other New Year News From The Dystopian World Of U.S. Immigration!
  3. THE GIBSON REPORT — 02-14-21💝 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group — Mandatory E-Filing @ EOIR Starts & Lots Of Other “Interesting Stuff!”  — CMS Study Shows How Garland Is Ignoring the “Low Hanging Fruit” On His Out of Control EOIR Backlog! ☹️
  4. 🧑🏽‍⚖️⚖️🗽🇺🇸WHO’S JUDGE IS IT ANYWAY? — The Crisis Of Independence In Our Immigration Courts! — Coming April 7, 2021! — Sponsored By The HNBA! — Don’t Miss It!

🤯GARLAND, MAYORKAS SLAM-DUNKED BY NGOs ON SEMI-FRIVOLOUS DEFENSE OF TRUMP’S CRUEL, ☠️⚰️ ILLEGAL WORK DENIAL FOR ASYLUM SEEKERS! — AsylumWorks v. Marorkas, D.D.C.😎⚔️⚖️

Joan Hodges Wu
Joan Hodges Wu
Founder & Executive Director
AsylumWorks — The “lead plaintiff” in this case. Joan is a true NDPA “Warrior Queen.”⚔️👸🏼

Dan Kowalski reports for Lexis/Nexis:

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/court-vacates-two-trump-era-rules-that-denied-work-authorization-to-asylum-seekers

Court Vacates Two Trump-Era Rules That Denied Work Authorization To Asylum Seekers

NIJC, Feb. 8, 2022

“A federal court ruled that two rules issued by the Trump administration restricting — and in some cases eliminating — access to work authorization for asylum seekers were illegally issued and are therefore invalid.

More than a year ago, a group of nearly 20 asylum seekers along with three organizations sued the Department of Homeland Security (DHS) challenging these rules. The individual asylum seekers include transgender women, parents with small children, and children and adults who fled political persecution, gender-based violence, or gang and drug-cartel violence. The rules prevented or delayed their access to a work permit. The organizational plaintiffs — AsylumWorks, the Tahirih Justice Center, and Community Legal Services in East Palo Alto — argued that the rules derailed their missions to provide employment assistance and legal and social services to asylum seekers.

The National Immigrant Justice Center, Quinn Emanuel Urquhart & Sullivan, LLP, the Center for Gender & Refugee Studies, Kids in Need of Defense, and Tahirih Justice Center provided counsel in the case.

Plaintiffs challenged the substantive provisions that drastically curtailed access to work authorization, and they argued that the rules were invalid because purported Acting DHS Secretary Chad Wolf issued them even though he was not lawfully installed as DHS Secretary. The rules took effect in August 2020 and were partially enjoined by a different court in September 2020, but that decision left many of the rules’ harmful provisions in place. Despite these ongoing harms and despite a change in administration, the government dragged its feet arguing that the rules should remain in place “for the time being” to allow “developing administrative actions” to resolve the case.

The U.S. District Court for the District of Columbia refused to entertain these delay requests, and rejected the government’s “interpretative acrobatics” to justify Mr. Wolf’s purported authority to engage in rulemaking. Instead, the court followed numerous other courts around the country and concluded that “Wolf’s ascension to the office of Acting Secretary was unlawful.” The court also rejected the Biden administration’s attempt to ratify one of the rules in question, reasoning that the ratification “did not cure the defects … caused by Wolf’s unlawful tenure as Acting Secretary.”

Reflections from Counsel and Organizational Plaintiffs:

“The ability to earn an income is critical to asylum seekers’ ability to survive in the United States as they pursue protection from persecution,” said Keren Zwick, director of litigation at the National Immigrant Justice Center. “The court’s decision recognizes that the government cannot neglect to fill a cabinet position with a Senate-approved candidate for 665 days and then rely on unvetted, temporary officials to strip asylum seekers of access to a livelihood in the United States.”

“The court got it right,” said Annie Daher, senior staff attorney at the Center for Gender & Refugee Studies. “People seeking asylum should be treated with dignity and fairness as they pursue their legal claims. Access to work permits allows asylum seekers to provide for their families, obtain vital legal representation, and ultimately find safety and security in the United States. Today’s ruling will make a life-saving difference for our plaintiffs and for all people who turn to this country for refuge.”

“Children seeking asylum often need a USCIS-issued ‘employment authorization’ document as their only form of photo ID, to access education and other services critical to their stability and well-being during the asylum process,” said Scott Shuchart, senior director, legal strategy, at Kids in Need of Defense. “The court correctly restored access to these important documents for, potentially, thousands of unaccompanied children who will now have the opportunity to build a more secure life in the United States as they pursue lifesaving protection.”

“The right to work is an essential component of humanitarian protection,” said Joan Hodges-Wu, executive director and founder of AsylumWorks. “Work is not only imperative to economic survival; it also represents a means for asylum seekers to maintain personal dignity and self-respect during the long and protracted legal process. The court took a critical step toward upholding the rights of asylum seekers by vacating illegally-issued rules created to deter individuals and families seeking safety from harm. We applaud the court’s decision and look forward to continuing our work to help asylum seekers prepare for and retain safe, legal, and purposeful employment.”

“This decision restores the critical ability of countless survivors of gender-based violence to work, and thus be independent and provide for their families, while their asylum applications are pending—a process that often takes many years,” said Richard Caldarone, senior litigation counsel at the Tahirih Justice Center. “It also makes clear that the government remains obligated to promptly decide survivors’ requests for work authorization rather than leaving them in bureaucratic limbo for months or years. The decision takes arbitrary and punitive restrictions on work permanently off the books. We applaud the court’s decision and look forward to its immediate implementation.”

“We are thrilled that our motion for summary judgment was granted. This decision will have an enormous impact on our clients and so many other asylum seekers who come to this country seeking safety and justice,” said Christina Dos Santos, the Immigration Program director at Community Legal Services in East Palo Alto. “The Trump-era rules were punitive and cruel to asylum seekers, preventing them from receiving the right to work, potentially for years, as they waited to have their cases heard in our backlogged immigration court system. We have seen first hand how these policies forced asylum-seekers and their families into poverty and destitution. A resolution was urgently needed. We applaud the court’s decision.””

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

Garland’s poor judgement, legally deficient, ethically questionable defenses of illegal and inhumane Trump-era immigration policies continue to astound! Also, the inane maneuvers conducted by Mayorkas, presumably with Garland’s approval, attempting to illegally “ratify” one of these rules is simply disgraceful! Chief Judge Beryl A. Howell strongly and correctly rejected this flailing waste of Government resources in her opinion.

Chief Judge Howell’s decision describes a compendium of some of the most egregious evasions of rules and wasteful attempts to paper them over, by both the Trump and Biden Administrations, that can be imagined. It’s an appalling example of the failure of Biden’s “good government” pledge! Inflicting this utter nonsense on the Federal Courts and on individuals fighting for their lives and rights, and stretching the resources of their pro bono lawyers, is on Garland! It’s inexcusable!

Alfred E. Neumann
Has Alfred E. Neumann been “reborn” as Judge Merrick Garland? 
PHOTO: Wikipedia Commons

Congrats to my good friend Joan, AsylumWorks, the Tahirih Justice Center, and all the other great NGOs who are “taking it to” Garland and and his flailing Justice Department as well as to Mayorkas and his lousy, inept, illegal gimmicks being used to “shore up” grotesquely cruel and unfair Trump policies that Biden & Harris were elected to change! Gotta wonder what Ur Mendoza Jaddou and other folks who were supposed to “just say no” to these disgraceful policies are doing over at DHS!

Here’s what Joan said about the case:

WE WON! 🗽 The court ruled in AsylumWorks’ favor and struck down a series of Trump era rules that significantly delayed – and in many cases outright denied – work permits for asylum seekers.Today, justice prevailed.

 

🇺🇸Due process Forever!

Best,

—

Joan Hodges-Wu, MA, LGSW
Founder & Executive Director  | AsylumWorks

Justice DID indeed prevail! That’s thanks to you, Joan, your fellow NGOs, and some great pro bono lawyers who showed that despite campaign promises, true “justice” for all persons under our Constitution resides elsewhere than at our flawed and failing Department of “Justice” under Garland’s uninspired and often tone deaf “leadership.”  

🇺🇸 Due Process Forever!

PWS

02-08-22

Related posts:

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  2. ⚖️🗽🧑🏽‍⚖️”MEDLEY OF INJUSTICE” — CIRCUITS CONTINUE TO LOWER HAMMER 🔨 ON BIA: Anti-Asylum Misogyny; Illegal & Incredibly Stupid “Policies;” “Perplexing” Lack Of Legal Knowledge Highlighted In Latest Batch Of Reversals! — “Attempted rape by a gang of men, in broad daylight on a public street, is especially terrorizing because it powerfully demonstrates the perpetrator’s domination, control over the victim and imperviousness to the law. Requiring evidence of additional harms both minimizes the gravity of the sexual assault and demeans the victim.”
  3. WOW, HERE’S A SURPRISE: MANY KIDS FLEEING VIOLENCE IN THE NORTHERN TRIANGLE KNOW NOTHING ABOUT BIDEN BORDER POLICIES — They Are Just Trying To Save Their Lives!
  4. 🤮🤯🏴‍☠️👎🏽GARLAND’S DOJ GOES “FULL MILLER LITE” ON TRAUMATIZED REFUGEE FAMILIES! — Some Dem “Strategists” Like New Policy: Dis Progressives, Abandon Campaign Promises, Trash Vulnerable Migrant Families Of Color In Hopes Of Appeasing White Nationalist GOP Nativists!

⚖️👎🏽🤮☠️HUMAN RIGHTS GROUPS BLAST BIDEN, HARRIS, GARLAND, MAYORKAS FOR ILLEGAL RETURNS TO COLOMBIA, CONTINUATION OF MILLER’S XENOPHOBIC, DEADLY & CORRUPT TITLE 42 ABUSES OF HUMANITY!

https://bit.ly/3upncgP

Letter to Biden/Harris on Expulsions of Venezuelan Asylum Seekers to Colombia

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Dear President Biden and Vice President Harris:

We, the undersigned organizations committed to the rights of asylum seekers and refugees, write to express our serious concerns over reports that the U.S. Department of Homeland Security (DHS) has begun a new practice of using Title 42 to expel Venezuelan migrants to Colombia. We understand that the first two Venezuelan individuals to be expelled under this policy were flown to Colombia on January 27, 2022 and that additional Title 42 expulsion flights to the country are expected to take place on “a regular basis” for Venezuelans who “previously resided” in Colombia. This practice represents a concerning and unacceptable escalation to your administration’s misguided approach to border and migration policy that flouts domestic and international refugee and human rights law. We urge you to cease these and other Title 42 expulsions immediately, to prioritize protection and access to asylum in your regional and domestic migration policies, and to engage asylum and human rights experts as you pursue new policies.

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One year into your administration, you have continued the misuse of a xenophobic Trump-era policy that weaponized an obscure provision of Title 42 of the U.S. code to summarily block and expel individuals, often repeatedly, from the U.S. southern border, without providing them the opportunity to seek asylum or the ability to access any protection screening required by law. These new flights to Colombia come amidst troubling reports that your administration  placed on hold plans to restart asylum processing at U.S. ports of entry and that high-level officials have resisted ending Trump-era asylum restrictions, including Title 42 expulsions.

Title 42 expulsions have nothing to do with protecting public health and are not necessary to protect the public from the spread of COVID-19. Since the start of the COVID-19 pandemic, public health experts, the UN Refugee Agency, and other humanitarian advocates have demonstrated that it is possible to protect public health and ensure access to asylum simultaneously. In fact, the Centers for Disease Control and Prevention (CDC) objected to the use of Title 42 for mass expulsions of migrants and confirmed such expulsions lacked a valid public health basis. Your Chief Medical Advisor Dr. Anthony Fauci has himself stated that immigrants are “absolutely not” driving a COVID-19 outbreak and that expelling migrants is not a solution to an outbreak.

Over the past twelve months, your administration expelled people—often expelling the same person repeatedly—from the U.S. southern border more than one million times. In just the first seven months of your administration, U.S. border officials carried out 704,000 expulsions, a significant increase from the Trump administration’s 400,000 expulsions conducted over ten months. In addition to the new expulsion flights to Colombia, DHS also carries out land expulsions to Mexico and expulsion flights to send individuals and families back to their countries of origin, including Haiti, Guatemala, Honduras, and Brazil. Even though your administration has acknowledged that “Haiti is grappling with a deteriorating political crisis, violence, and a staggering increase in human rights abuses…” – the U.S. has since September 2021, inexplicably chartered nearly 150 flights of almost 16,000 Haitians, including families with infants, back to a country that is unquestionably unsafe without offering them any opportunity to seek protection before expulsion. These expulsions under Title 42 violate the law and risk sending people back to dangerous conditions – sometimes the very ones that caused them to seek safety in the first place.

As you are aware, Venezuela is currently facing a severe economic, political, and humanitarian crisis. Millions of Venezuelans have left the country due to political persecution, a collapse of basic services, food insecurity, and rampant violence. Over 1.7 million Venezuelans are being hosted in Colombia and many have been granted temporary status there and only a small percentage of Venezuelans have sought asylum in the United States; however, Colombia is not safe for all Venezuelan migrants and refugees. Venezuelans, and all other individuals fleeing persecution have the right to seek asylum under U.S. law and to have their claims for protection assessed on a case-by-case basis. Your administration is blatantly violating the law by expelling these people to other countries in the region, such as Colombia, and we are deeply troubled by the informal and opaque arrangements with third countries that facilitate these expulsions. Your administration terminated several such agreements with Central American countries when you came into office, making these new flights especially concerning.

During its first year in office, your administration committed to a comprehensive regional approach to migration, aiming to strengthen asylum systems and refugee resettlement programs in the region and promote “safe, orderly, and humane migration.” Despite this pledge, your administration’s actions suggest that the United States seeks out negotiations with countries throughout Latin America that externalize its borders further south, shifts responsibility to countries already hosting millions of refugees, and impedes people’s ability to seek protection in the United States. Earlier this month, under pressure from your administration, the Mexican government implemented new requirements that Venezuelans obtain a visa to travel to Mexico. According to reports, your administration has also requested that Mexico sign a safe third country agreement, which could effectively block most individuals (except Mexicans) from seeking asylum in the United States.

We urge your administration to abandon efforts to prevent people from seeking asylum through externalized migration controls in the region and to undermine the right of people to seek protection in the United States. As you pursue other regional efforts, it is imperative that your administration operate with increased transparency and engage with asylum and human rights experts about potential efforts such as anticipated regional compacts on migration with other countries in the Americas. While regional protections must be strengthened, these efforts must not and need not come at the expense of existing protection mechanisms and access to asylum at the U.S.-Mexico border, including at ports of entry.

Your administration has the responsibility to uphold U.S. refugee law and treaty obligations. We call on your administration to cease further expulsions of Venezuelan migrants to Colombia, and  to immediately end its use of all expulsions under Title 42. Our organizations continue to welcome the opportunity to engage on and inform how to promote a protection centered approach to “safe, orderly, and humane migration,” including restoring access to asylum at the border, including at ports of entry.

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Let’s be clear about the equation:

immigrants’ rights = human rights = civil rights = racial justice = economic stability = common good

By failing miserably on the first, the Administration has found itself flailing and failing on the rest.

Nowhere is this more apparent than at DOJ! Garland has squandered the precious first year in office by NOT cleaning house at EOIR and bringing in practical experts in immigration/human rights/due process to remake and reform the system so that it can deal fairly, timely, and justly with asylum applicants applying at the border and and elsewhere in the U.S., as they are legally entitled to do.

Instead of expertly culling the vast majority of backlogged pending cases which are neither priorities nor viable removal cases at this point, Garland has built the unnecessary, largely self-created backlog at a record pace to more than 1.6 million with no end in sight! Add that to his disgraceful failure to stand up against illegal and immoral policies and clear violations of human rights at the border by his own Administration and you get today’s catastrophic situation.

“Standing tall” for the rule of law (and human decency) is supposed to be the Attorney General’s job. Why are these NGOs being forced to do it for him?

How bad have things gotten at Garland’s DOJ? This has already been a tough week that saw his DOJ attorneys “blow” a plea bargain in a major civil rights case, be excoriated by the 4th Circuit in a published case for a miserably botched performance in what should have been a routine “reasonable fear” case, and have Chairwoman Lofgren introduce her Article 1 bill with a broadside against DOJ’s horrible stewardship over EOIR. 

As if to punctuate Chairwoman Lofgren’s critique, Garland topped it off with this gem: a beatdown in a pro se Salvadoran asylum case, which OIL basically failed to “pull” although the BIA decision conflicted with Garland’s own more recent precedent, from a Fourth Circuit panel that included two recent Trump appointees not heretofore known for vigorously defending asylum seekers’ rights! https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/pro-se-ca4-psg-remand-luna-deportillo-v-garland

Folks, this is NOT “good government.” Not by a long shot!

There is no more important task — NONE — facing DOJ than pumping some due process and quality back into immigration law and making the long overdue management, personnel, procedural, and legal quality reforms at EOIR. 

Yes, that apparently would require Garland to take on some folks at the White House who obviously consider human rights to be a “political strategy,” integrity and courage optional, and live in mortal fear of Stephen Miller and far-right nativists. It would mean taking decisive actions to treat asylum seekers and other migrants (including many individuals of color) as “persons” under our Constitution. It would end the intentional “Dred Scottification of the other.” It would send some Sessions/Barr “plants and holdovers” packing from their current jobs!

Unquestionably, these moves would incite predictable, tiresome, apoplectic reactions by Miller and the GOP White Nationalist cabal on the Hill. They would put Garland “in the spotlight” and interrupt the serenity of his inner sanctum on the 5th floor of the DOJ where he apparently likes to contemplate the world and “things other than due process for immigrants.” 

But, taking on folks like that is what good lawyers are supposed to do. As a public lawyer, it’s not just about being somebody’s “mouthpiece” — it’s standing up for the rule of law!

I among many others have said from the outset that Garland won’t be able to sweep the total meltdown at EOIR and in immigration legal positions under the table, much as he obviously would like them to go away! Yes, he inherited an awful mess from his Trump predecessors. But, almost a full year in, that doesn’t absolve him of responsibility for failing to initiate the common sense steps to fix it and to bring in experts who actually know what they are doing and have the guts and backbone to follow through — even when the going gets tough, as it undoubtedly will. The problems at DOJ go far beyond EOIR; but, EOIR must be the starting place for fixing them. There is no more time to lose! 

Alfred E. Neumann
It’s time for Garland to start worrying about running “America’s most unfair and dysfunctional courts,” defending grotesque human rights violations and scofflaw policies by his own Administration, and a DOJ that takes untenable and embarrassingly bad legal positions before the Federal Courts. Much as he’d like to pretend that “immigration doesn’t matter,” or expressed a different way “human lives don’t matter if they are only migrants,” he’s starting to get pressure from Congress, the Article IIIs, and NGOs to fix EOIR and “shape up” the DOJ’s lousy, sometimes unprofessional and ethically questionable, approach to immigration, human rights, and racial justice issues. Justice for immigrants is the starting point for achieving racial justice in America.
PHOTO: Wikipedia Commons

Garland’s failure to institute widely recommended common sense legal reforms — government for the common good — at EOIR undermines our democracy while endangering “real” human lives every day! That’s a toxic legacy that he won’t be able to avoid!

🇺🇸Due Process Forever!

PWS

02-04-22

Related posts:

  1. 😰NO HAPPY NEW YEAR FOR FAMILIES IN “THE NEW AMERICAN GULAG”☠️⚰️ — As Kakistocracy Of War Criminals 🤮🏴‍☠️ Departs, Will President Biden Have The Wisdom & Guts To Move Beyond “The Dem Border Alarmists” & Get The Progressive Leaders 🦸🏽‍♂️⚖️ From The NDPA In Place To Bring Due Process & Order To The Border?🗽🇺🇸
  2. VICE PRESIDENT HARRIS THINKS RULE OF LAW DOESN’T APPLY TO RICH NATION THAT ILLEGALLY TURNS DESPERATE REFUGEES AWAY, SUGGESTS GUATEMALANS SHOULD DIE IN PLACE! — “Deterrence Statement” Won’t Stop Migration, Won’t Appease Nativist-Restrictionists, But Will Cost Her Support From Human Rights Progressives Who Helped Elect Her!  — There Will Be No Workable Solutions At Our Southern Border Without a Functional, Robust Legal Asylum System That Complies With Due Process!
  3. 🆘🤮IS 11TH CIR. GROWING WEARY OF GARLAND’S SCOFFLAW BIA? —Two Trips To The Circuit, & The BIA Still Violates Own Regulations, Ignores Precedent, Spouts Gibberish While OIL’s Defense Of This Nonsense & Malfeasance By EOIR Raises Serious Ethical Questions! — THAMOTAR v. U.S. ATT’Y GEN. — Garland’s Dysfunctional & Systematically Unjust Courts Undermine OUR Democracy☠️ — Demand An IMMEDIATE End To The Scofflaw Nonsense🤡 🧹 At OUR Justice Department! 🏴‍☠️
  4. PURE BS 💩 — TRUMP’S “BIG LIE” ABOUT MIGRANT APPEARANCES FOR HEARINGS BOGUS AS $3 BILL 🤮👎🏻— Replacing DHS/EOIR With Rational, Qualified, Fact-Based Governance & Real Judiciary Could Bring Appearance Rate Close To 100%!  — Two Items From ImmigrationProf Blog!

👎🏽ANOTHER 4TH CIRCUIT PUTDOWN FOR GARLAND — AO & IJ COMPLETELY BOTCH “REASONABLE FEAR REVIEW” — OIL COMPOUNDS PROBLEM BY ADVANCING SEMI-FRIVOLOUS DEFENSES!

Dan Kowalski reports for LexisNexis:

Tomas-Ramos v. Garland

https://www.ca4.uscourts.gov/opinions/201201.P.pdf

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca4-on-nexus-tomas-ramos-v-garland#

“After Adan de Jesus Tomas-Ramos, a citizen and native of Guatemala, reentered the United States illegally in 2018, a removal order previously entered against him was reinstated. But because Tomas-Ramos expressed a fear of returning to Guatemala, an asylum officer conducted a screening interview to determine whether he reasonably feared persecution or torture in his home country. The asylum officer determined that Tomas-Ramos failed to establish a reasonable fear of such harm, and so was not entitled to relief from his reinstated removal order. An Immigration Judge (“IJ”) concurred with that determination. Tomas-Ramos now petitions for review of the IJ’s order on two grounds. He first contends that the IJ’s finding that he lacked a reasonable fear of persecution or torture was erroneous. We agree. The primary ground for the IJ’s decision was that there was no “nexus” between the harm Tomas-Ramos faced and a protected ground. But the agency incorrectly applied the statutory nexus requirement. Instead, the record compels the conclusion that Tomas-Ramos was persecuted on account of a protected ground, in the form of his family ties. And in light of that error, we cannot determine that the other reason given by the IJ for her decision – that Tomas-Ramos could avoid harm by relocating – was supported by substantial evidence. Accordingly, we grant the petition for review, vacate the agency’s decision, and remand for further proceedings.”

[Hats off to Michael D. Lieberman, Simon Y. Sandoval-Moshenberg, Stacy M. Kim, Paul F. Brinkman, and Michael A. Francus!]

— 

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

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

    • DOJ’s error-studded performance (or lack thereof) in this case is disgraceful!
    • I guarantee that there are plenty of other unjust, legally defective reasonable fear and credible fear decisions where these came from. Just most folks never get any meaningful judicial review.
    • Both the IJ and the AO got the basics of nexus and the applicable 4th Circuit case law totally wrong here. How are is this acceptable performance from what are supposed to be “expert” courts? Why hasn’t Garland brought in real experts, committed to due process and best practices, to take charge and straighten out this mess?
    • Disturbingly, the Biden Administration wants to turn this type of clearly inadequate procedure with poorly trained officers and judges and incorrect applications of the law loose on the merits determinations for all asylum seekers at the border!
    • Rather than being a check on bad judges, Garland’s OIL continues to “defend the indefensible” with arguments that don’t meet “the straight-face test.” Aren’t ethical codes equally applicable to Government lawyers?
    • Worse yet, Garland continues to unethically defend the scofflaw behavior of the Biden Administration by using a Stephen Miller era “COVID pretext” to deny most asylum seekers at the Southern Border any process, even the pathetic one used here!
    • The “wheels have come off” @ Garland’s DOJ and he’s driving on the axel hubs! When is someone going to pull him over and make him fix it?
    • Believe it or not, these are life or death cases! ☠️ Why is Garland allowed to treat the lives and rights of migrants and those associated with them so frivolously?
    • The IJ’s attempt to bar the R’s attorney from participating in the “credible fear” review is ridiculous! It shows the deep problems in Garland’s broken system which too often is deaf to due process, hostile to attorneys, and immune from common sense and best practices! Why would the “default” for regulatory silence be “no participation” rather than a “strong presumption that attorneys can fully participate?” What kind of “court” bars attorneys from speaking for their clients? Why would any judge not want to listen to attorneys, who are there to help them make correct decisions? The IJ’s conduct here was particularly egregious given that she had already made a clearly wrong decision before cutting off the attorney’s attempt to point out her errors! What a complete farce that Garland has failed to address!
    • This is another case where Circuit Judge Allison Jones Rushing, a Trump appointee with solid conservative credentials, once thought to be a possible contender for the “ACB seat,” joined her colleagues (Judge Harris and Chief Judge Gregory) to overturn a wrong, anti-immigrant decision by EOIR. Her approach in this and another recent case shows more sensitivity to due process, scholarship, and the rights of individual immigrants than many decisions emanating from Biden’s Immigration Courts under Garland.
    • I’m not suggesting that Judge R is necessarily going to become a leading defender of due process for immigrants. But, based on these somewhat random “snippets,” she seems more “reachable” and open to sound arguments on the issues than some other Trump appointees, points worth keeping in mind for NDPA advocates!
    • She’s also young. So, she will be reviewing immigration cases and making law for decades to come.

🇺🇸Due Process Forever!

PWS

02-02/22

Related posts:

  1. BLOWING THE BASICS: 4th Cir. Says BIA Got Nexus & Political Opinion Wrong in Guatemalan Asylum Case — Lopez-Ordonez v. Barr — The Facts Were Compelling, But The BIA Worked Hard to Wrongfully Deny Protection!
  2. ⚖️🧑🏽‍⚖️JUDICIAL REVIEW — C.A. 2 — Brace Of Bad BIA Bobbles On Basics Brings “Culture Of Denial” Into Focus — Justice Will Continue To Be Illusive @ EOIR 👎🏽 Until Garland Steps Up & Replaces His Fatally Flawed BIA With Real Judges Who Are Progressive Practical Scholars In Immigration, Due Process, Human Rights, With A Firm Commitment To Bringing Racial & Gender Equity To Now-Disgraced Immigration Courts!🤮
  3. 😎WIN ONE, LOSE ONE☹️:  9TH CIR. ANNIHILATES MATTER OF ARMENDAREZ-MENDEZ (SUA SPONTE REOPENING), WHILE 11TH  CIR. WOODENLY ENDORSES 👎🏻 MATTER OF L-E-A- (NEXUS)!☠️⚰️
  4. ⚖️🗽🧑🏽‍⚖️”MEDLEY OF INJUSTICE” — CIRCUITS CONTINUE TO LOWER HAMMER 🔨 ON BIA: Anti-Asylum Misogyny; Illegal & Incredibly Stupid “Policies;” “Perplexing” Lack Of Legal Knowledge Highlighted In Latest Batch Of Reversals! — “Attempted rape by a gang of men, in broad daylight on a public street, is especially terrorizing because it powerfully demonstrates the perpetrator’s domination, control over the victim and imperviousness to the law. Requiring evidence of additional harms both minimizes the gravity of the sexual assault and demeans the victim.”

🏴‍☠️🤮👎🏽⚰️🤯 SCOFFLAW BIA BREAKS RULES, VIOLATES OWN PRECEDENTS, HEMORRHAGES FUNDAMENTAL UNFAIRNESS IN HELPING DHS, 7TH CIR. FINDS IN LATEST REBUKE OF GARLAND’S STAR CHAMBERS — “Culture Of Denial,” Anti-Immigrant Bias Continue Unabated @ Garland’s EOIR!

Star Chamber Justice
At ICE, there’s no need to bother presenting evidence, arguments, or making a record below because we know we can “rack up” victories before our stooges at Garland’s BIA!

Dan Kowalski reports for LexisNexis:

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/ca7-slaps-the-bia-again-osmani-v-garland

CA7 Slaps the BIA Again: Osmani v. Garland

Osmani v. Garland

“In 2019, the Department of Human Services (“DHS”) sought to remove Ilir Osmani, a refugee of the Kosovo War, based on his criminal convictions and crimes of moral turpitude. An Immigration Judge (“IJ”) granted Osmani’s petition for an adjusted status under 8 U.S.C. § 1159(a) and for waiver under 8 U.S.C. § 1159(c). The Board of Immigration Appeals (“BIA”) reversed the IJ’s ruling based on new arguments the government, after failing to take any position before the IJ or to provide any notice to Osmani, raised for the first time on appeal and denied Osmani’s motion to remand for additional factfinding on the conditions in Kosovo. We find the BIA legally erred by considering arguments the government did not present to the IJ, put Osmani on notice of, or develop any record evidence to support. In denying Osmani’s motion to remand, the BIA also abused its discretion by engaging in impermissible factfinding. Accordingly, we grant Osmani’s petition for review and remand to the BIA. … Accordingly, we GRANT the petition for review; VACATE the Board’s decision in this case; and REMAND to the BIA for further proceedings consistent with this opinion.”

[Hats way off to pro bono publico counsel Illyana A. Green, Chuck Roth and Matthew E. Price!  Query: ICE removed Osmani in 2021…will they bring him back?  Listen to the oral argument here.]

pastedGraphic.png pastedGraphic_1.png pastedGraphic_2.png

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The outrageous errors, pro-DHS bias, gross incompetence, and lack of judicial qualifications reflected by this BIA decision is absolutely stunning, as is the Biden Administration’s:

  • Deportation of the respondent while this court challenge to this error-fest was pending (the respondent was removed based on this illegal order in April 2021, well after the Biden Administration took office and a month after Garland was sworn in as Attorney General);
  • The DOJ’s prima facie unethical defense of the BIA’s denial of due process, failure to follow precedent, clear abuse of discretion, and legally indefensible actions here;
  • Continuing abuse of scarce pro bono resources and Article III judicial time by not bringing in fair, expert, new, due–process-dedicated BIA judges who would get these right in the first place, set proper precedents, and follow them (rather than avoiding them when they spell victory for the individual);
  • Also, who at DHS authorized an improper appeal on this record? (Obviously, DHS recognized that given the BIA’s pro-DHS bias, they could “mail it in” before the IJ, take a frivolous appeal, and  STILL HAVE THE BIA HAND THEM A TOTALLY UNDESERVED VICTORY!)

Folks, this is a Democratic Administration enabling this pattern of biased, unprofessional, and illegal conduct against immigrants which should bring a smile to Stephen Miller’s face! It’s also unfair and demoralizing to Immigration Judges who take the time to get it right and grant relief only to be arbitrarily and illegally reversed by Garland’s unqualified BIA on appeal!

Garland should have replaced leadership at EOIR and OIL, and also replaced the BIA, on “day one.” Instead, more than a year into a supposedly due-process-oriented Administration, the garbage continues to flow into the Article IIIs from Garland’s EOIR unabated, while the indefensible continues to be defended by OIL, like it’s “business as usual.” This happens because Garland’s message is that “Dred Scottification” of “the other” will be tolerated, defended, and protected at his DOJ.

Why is Garland being allowed to get away with running this system into the ground, ignoring due process, “blowing off” judicial and legal ethics, treating migrants unfairly, and building the unnecessary backlog at record levels?

🇺🇸Due Process Forever! 

PWS

01-25-22

Related posts:

  1. ⚖️🧑🏽‍⚖️JUDICIAL REVIEW — C.A. 2 — Brace Of Bad BIA Bobbles On Basics Brings “Culture Of Denial” Into Focus — Justice Will Continue To Be Illusive @ EOIR 👎🏽 Until Garland Steps Up & Replaces His Fatally Flawed BIA With Real Judges Who Are Progressive Practical Scholars In Immigration, Due Process, Human Rights, With A Firm Commitment To Bringing Racial & Gender Equity To Now-Disgraced Immigration Courts!🤮
  2. 🆘🤮IS 11TH CIR. GROWING WEARY OF GARLAND’S SCOFFLAW BIA? —Two Trips To The Circuit, & The BIA Still Violates Own Regulations, Ignores Precedent, Spouts Gibberish While OIL’s Defense Of This Nonsense & Malfeasance By EOIR Raises Serious Ethical Questions! — THAMOTAR v. U.S. ATT’Y GEN. — Garland’s Dysfunctional & Systematically Unjust Courts Undermine OUR Democracy☠️ — Demand An IMMEDIATE End To The Scofflaw Nonsense🤡 🧹 At OUR Justice Department! 🏴‍☠️
  3. ⚖️🤯🤮GARLAND’S OHIO JUDICIAL MELTDOWN — “High-Asylum-Denying” Immigration Judges Appointed By Barr & Sessions Remain On Garland’s Bench In Cleveland Despite Referring To Migrants As “Illegals” & “Pretty Virgins!” — EOIR Disciplinary System Remains As Opaque As Ever Under Garland!🏴‍☠️ Yulin Cheng Reports @ Columbus Dispatch!
  4. ⚖️🗽🧑🏽‍⚖️CAMILLE J.  MACKLER @ JUST SECURITY “GETS IT!” — How Come Judge Garland & The Biden Administration Don’t? — “If we want to re-build a better, stronger immigration system, we need to start with immigration courts.” — Get Involved! Get Angry! Say No To Institutionalized Racism, Misogyny, & Dehumanization (“Dred Scottification”) @ EOIR! Force Judge Garland To Pay Attention! Demand Change, Now!

🤯👎🏽MORE CIRCUIT REJECTS FOR GARLAND & PRELOGAR — 1st & 3rd Cirs “Just Say No” To DOJ’s Ill-Advised Positions On “Theft Offense” & Derivative Citizenship!  — It’s Part Of A Larger Leadership Failure @ Garland’s Broken DOJ!

From Dan Kowalski @ LexisNexis:

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca1-on-categorical-approach-da-graca-v-garland

CA1 on Categorical Approach: Da Graca v. Garland

Da Graca v. Garland

“Aires Daniel Benros Da Graca petitions for review of a decision of the Board of Immigration Appeals (the “Board”) affirming his order of removal and denying his requests for cancellation of removal and voluntary departure. Because we find that a conviction under Rhode Island General Laws (“RIGL”) § 31-9-1 is not categorically a theft offense, we grant the petition for review, vacate the decision below, and remand for further proceedings.”

[Hats off to Randy Olen and Robert F. Weber!]

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

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca3-derivative-citizenship-victory-jaffal-v-director

CA3 Derivative Citizenship Victory: Jaffal v. Director

https://www2.ca3.uscourts.gov/opinarch/203148p.pdf

 

“Appellant Imad Jaffal, born in Jordan, seeks a declaration that he is entitled to derivative U.S. citizenship under former 8 U.S.C. § 1432(a). That statute provides that “a child born outside the United States automatically acquires United States citizenship if, while the child is under the age of eighteen, the parent with legal custody of the child is naturalized while that child’s parents are legally separated.” Jaffal’s father was naturalized when Jaffal was seventeen years old, and Jaffal presented evidence to the District Court that he was in the sole legal custody of his father when his father was naturalized and his parents were separated. The District Court, however, declined to accept Jaffal’s evidence of his parents’ divorce. Because we conclude that was error, we will reverse the order of the District Court and remand the matter with instructions to issue a judgment declaring Jaffal to be a national of the United States.”

[Hats way off to Alexandra Tseitlin!]

pastedGraphic.png

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Here’s my favorite quote from Judge Torresen’s decision in  Da Garcia v. Garland:

Despite this apparent disconnect between RIGL § 31-9-1 and the Board’s definition of theft offense, the Board in Da Graca’s case determined that to prove the statute’s overbreadth, the Petitioner was required to identify actual cases in which Rhode Island had enforced the statute against de minimis deprivations of ownership interests. Da Graca contests the Board’s imposition of an actual case requirement and argues that he “need not necessarily proffer specific examples of Rhode Island prosecutions in order to establish a ‘realistic probability’ that the state would apply its statute to conduct that falls outside the generic definition of a crime.” We agree with Da Graca.

Essentially, Garland’s BIA “makes it up as it goes along” to reach a denial, then Prelogar’s DOJ attorneys defend the illegal result. Sounds like a really bad system, lacking accountability, expertise, common sense, and, sometimes, professional responsibility. 

Lest you think that the legal nonsense being produced by Garland’s BIA and the USCIS is “below Prelogar’s radar screen” in her exulted position, that’s NOT true! Every adverse decision suffered by the USG must be reported to the SG’s Office with an analysis and recommendations from the agency’s attorneys, the litigators who handled the case, the appellate section of litigating division (here the Civil Division), and the SG’s staff. No appeal, petition for rehearing en banc, or petition for cert. can be filed without the express authorization of the SG’s Office. 

So, Prelogar is well aware of the bad positions, unfairness, and poor work product DOJ attorneys are defending (sometimes with a lack of candor or misleading the courts) and their abuses of the time of the Article IIIs. 

Even with the “real” (Article III) Federal Courts moving markedly to the right (following four years of Trump-McConnell appointments and eight years of lackadaisical performance by the Obama Administration), and rules that strongly favor the Government on judicial review, DOJ’s haphazard performance under Garland and Prelogar continues to earn a stream of avoidable “kickbacks” from the Article IIIs. The DOJ system is broken in many places — EOIR is just the most obvious, most pressing, and most easily addressed area of failure.

There is a tendency of immigration advocates, perhaps still hoping to curry favor with an Administration that largely ignores and despises them, to overemphasize the largely cosmetic and low impact “positive” changes made by the Biden Administration. See, e.g., https://www.lexisnexis.com/LegalNewsRoom/immigration/b/outsidenews/posts/biden-at-the-one-year-mark-a-greater-change-in-direction-on-immigration-than-is-recognized;

https://lawprofessors.typepad.com/immigration/2022/01/biden-keeps-trump-immigration-policiesand-stephen-miller-is-loving-it.html

At the same time they acknowledge but downplay the existential crippling effects of Garland’s failure to bring progressive reforms to EOIR, his defense of disgraceful, immoral, and inhumane “Miller Lite” positions in Federal Court, his intentional indifference to human suffering and the complete breakdown of the rule of law at our borders, and his disdain for removing the Trump enablers, deadwood, and poor lawyers from DOJ — at all levels.

I have a radically different perspective on the future of meaningful progressive immigration reforms, based on my nearly 50 years of involvement with the system on both sides and at all levels — more than most folks. 

There will be no meaningful, sustainable immigration reforms without a radically reformed, remade, Immigration Court system with a judiciary of due-process-oriented progressive experts who have the courage to “speak truth to power,” stand up for the legal, constitutional, and human right of the most vulnerable, and put integrity, humanity, and the best interests of our nation above career advancement, survival, or “ingratiation with the powers that be.” That’s NOT Garland’s DOJ — which remains largely the out of control, often ethically challenged morass that he inherited from his predecessors.

Let’s not forget that through intentional misuse of precedents, weaponization of EOIR, and White Nationalist litigation strategies, Jeff Sessions was able to largely disable the entire asylum system, including USCIS Asylum Offices, and shift USCIS Adjudications from service to “enforcement only,” in preparation for the “final eradication” of asylum and crippling of our entire legal immigration system by his crony and former subordinate, Stephen Miller. And, the folks who helped him do that and “went along to go along” with abuses are still largely on board and in key positions in Garland’s DOJ — actually operating with his apparent “stamp of approval.” Outrageous!

From a due process, human rights, progressive, good government, equal justice, racial equality standpoint, as well as from any aspect of moral leadership on fundamental values, Garland’s performance at DOJ has been unacceptable. Has Garland visited any of the camps in Mexico or gone to the “New American Gulag” to witness first-hand the human carnage for which he is responsible? Heck no! That’s a job for progressive experts whose input and advice he then shuns, ignores, and “tunes out!”

For progressive advocates to downplay the Biden Administration’s gross failures or “over-cheer” incremental progress that means little without fundamental reforms at EOIR and the DOJ only deepens the fecklessness of their own positions and furthers the disrespect and under-appreciation of their efforts, potential power, and value that has become an endemic feature of the Democratic Party. 

The Biden Administration might talk a good game, particularly around election time; but, in reality, they are governing largely in fear of and like nativist Republicans — but getting no “political return” whatsoever for betraying their supposed values and their base (see, Catherine Rampell). Advocates reward and tolerate such disgraceful and intellectually dishonest conduct at their own peril!

Meanwhile, Suzanne Clark, President of the U.S. Chamber of Commerce, certainly no “progressive shill,” speaks truth about the need for and our ability to accept more immigrants:

Allowing more immigrants into the US would help mitigate both soaring inflation and the current labor shortage, the CEO of the US Chamber of Commerce said.

“We need more workers,” Suzanne Clark told reporters Tuesday, per CNN. “We should welcome people who want to come here, go to school, and stay.”

“That is a place the government could be particularly helpful and we do believe it would be anti-inflationary,” she said, per CNN.

https://apple.news/AT8YmOLhiTOCuUFZijTLJCQ

Those immigrants are right in front of us: rotting in camps at the border, being returned to danger or death with no process — both as a result of Garland’s failure to re-establish our legal asylum system at the border — or languishing in Garland’s mushrooming 1.6 million Immigration Court backlog! It doesn’t take a “rocket scientist” to see that instead of wasting time, money, and resources on mindless “enforcement” intended to deter and discourage those who might help us by helping themselves, we should have set up fair and timely processing systems, staffed by experts, that would identify the many individuals at the border and already in the U.S. who can qualify to remain under fair and properly generous interpretations of asylum law, withholding, CAT, U & T visas, “stateside processing waivers,” cancellation of removal” (for those already here), TPS, and other possibilities. 

This is just as much”law enforcement” and “maintaining the integrity of our system” as are the efforts to increase deportations, terrorize communities, or close borders to “deter” migrants (primarily those of color) that has been practiced to some degree by every Administration. It also makes sense, economically, practically, and ethically.

It starts with an Attorney General and DOJ with the courage and vision to end the “deterrence only” misconstruction of our laws and stand up for the legal and human rights of migrants, regardless of race, color, creed, or manner of entry. That’s not what Garland has been doing to date! Too bad, because there will be no resolution of immigration issues — nor will there be racial justice in America — without an AG who will stand up for the real rule of law rather than the parody of the law and justice purveyed by Miller and his White Nationalists and still being parroted and too often defended by Garland and his minions.

🇺🇸Due Process Forever.

PWS

01-21-22

Related posts:

  1. ⚖️🗽🧑🏽‍⚖️”MEDLEY OF INJUSTICE” — CIRCUITS CONTINUE TO LOWER HAMMER 🔨 ON BIA: Anti-Asylum Misogyny; Illegal & Incredibly Stupid “Policies;” “Perplexing” Lack Of Legal Knowledge Highlighted In Latest Batch Of Reversals! — “Attempted rape by a gang of men, in broad daylight on a public street, is especially terrorizing because it powerfully demonstrates the perpetrator’s domination, control over the victim and imperviousness to the law. Requiring evidence of additional harms both minimizes the gravity of the sexual assault and demeans the victim.”
  2. WOW, HERE’S A SURPRISE: MANY KIDS FLEEING VIOLENCE IN THE NORTHERN TRIANGLE KNOW NOTHING ABOUT BIDEN BORDER POLICIES — They Are Just Trying To Save Their Lives!
  3. PURE BS 💩 — TRUMP’S “BIG LIE” ABOUT MIGRANT APPEARANCES FOR HEARINGS BOGUS AS $3 BILL 🤮👎🏻— Replacing DHS/EOIR With Rational, Qualified, Fact-Based Governance & Real Judiciary Could Bring Appearance Rate Close To 100%!  — Two Items From ImmigrationProf Blog!
  4. VICE PRESIDENT HARRIS THINKS RULE OF LAW DOESN’T APPLY TO RICH NATION THAT ILLEGALLY TURNS DESPERATE REFUGEES AWAY, SUGGESTS GUATEMALANS SHOULD DIE IN PLACE! — “Deterrence Statement” Won’t Stop Migration, Won’t Appease Nativist-Restrictionists, But Will Cost Her Support From Human Rights Progressives Who Helped Elect Her!  — There Will Be No Workable Solutions At Our Southern Border Without a Functional, Robust Legal Asylum System That Complies With Due Process!

TAL KOPAN @ SF CHRON: NO DUE PROCESS HERE☹️: GARLAND’S DESPICABLE “STAR CHAMBERS” CHEERED “ENGINEERED IN ABSENTIA” DEPORTATION ORDERS — Garland Fails To Provide Justice @ The Border Or In Biased “Courts,” But Inflicts Outrageous “Miller Lite” Anti-Due-Process “Gimmicks” On Vulnerable Migrants!🤮🤮🤮🤮🤮👎🏽👎🏽👎🏽👎🏽👎🏽

Tal Kopan
Tal Kopan
Washington Reporter, SF Chronicle

Immigration court officials cheered results of fast-tracked deportation orders, emails reveal

WASHINGTON — Last June, the San Francisco Immigration Court quietly tested a new idea: Fast-track the cases of immigrants whose mail wasn’t reaching them. In the trial run, 80% of the immigrants scheduled were ordered deported for not showing up.

Top officials were effusive with praise over the results, emails obtained by The Chronicle show, and rushed to set up more hearings: “Very positive!” emailed one of the top supervising immigration judges overseeing the nation’s hundreds of courts.

The newly uncovered emails reveal that the fast-track docket for immigrants with returned mail, which was first reported by The San Francisco Chronicle last fall, was cheered at the highest levels of the courts and pursued with full awareness that scores of immigrants would likely be ordered deported as a result.

Advocates and attorneys for immigrants raised concerns about the practice as a sort of deportation conveyor belt last year, as many of the lawyer-less immigrants may have no idea they missed a court hearing, much less that they were ordered deported during it, because they didn’t know how to update their address with the court or thought that Immigration and Customs Enforcement would do so on their behalf. The immigration courts are run by the Justice Department, with judges hired and ultimately overseen by the attorney general.

The emails were obtained through a Freedom of Information Act request by a nonprofit watchdog group, American Oversight, prompted by The Chronicle’s reporting. The group shared the records with The Chronicle.

The Department of Justice declined to comment specifically on the emails, noting that removal orders for failing to appear in court are legally valid and that issuing notices with new hearing dates gives unreachable immigrants an opportunity to appear in court and avoid a deportation order.

Chronicle analysis of available data last year found that the practice significantly increased the number of immigrants who were ordered deported for not being present in court, called an “in absentia” removal order. As many as 173 people were given deportation orders because of such proceedings in August and September — a nearly ninefold increase from the 20 similar orders given the previous seven months combined.

More here:

https://www.sfchronicle.com/politics/article/Immigration-court-officials-cheered-results-of-16791798.php

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Star Chamber Justice
This guy doesn’t realize that he could have avoided “justice” in Garland’s Star Chambers by not appearing for his hearing!

For Garland’s “judiciary,” the object appears to be avoiding fair hearings rather than conducting them! Perhaps, that’s understandable (not justifiable) considering how poorly many of his courts’ decisions fare upon judicial review in the Article IIIs. 

For his cowardly attacks on migrants and backlog-building mismanagement and misdirection of EOIR, Garland gets “Courtside’s” coveted “Five Puke-Five Thumbs Down Award!” 🤮🤮🤮🤮🤮👎🏽👎🏽👎🏽👎🏽👎🏽 

While Garland is failing in his job, his concerted efforts to break apart and “alienate” key segments the Dem coalition that elected Biden is succeeding and should pay great dividends (for the GOP and Trump) in the Fall Midterms! No wonder Garland’s running the system into the ground using “Trump/Miller holdovers.”

Garland and his equally poorly performing lieutenants (Monaco, Gupta, Clarke, Prelogar) are giving us a “Master Class” in “Why Dems Can’t Govern and Blow Elections 101.” 

A party that lacks the courage to act on the values it espoused to get elected doesn’t stand for anything at all!🤮👎🏽

Maybe lots of Dems pulled the lever because they wanted more of Gauleiter Stephen Miller’s White Nationalist policies. But, I haven’t heard of any!

🇺🇸Due Process Forever!  

PWS

01-20-21

Related posts:

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  3. 🏴‍☠️🤮👎🏻⚰️☠️BIDEN, HARRIS, GARLAND, MAYORKAS CONTINUE THE ILLEGAL, RACIST TRUMP/MILLER ANTI-ASLUM POLICIES @ THE BORDER — It Must Stop, Say Advocates! —  “The policy has disproportionately affected Black migrants, who are often Haitian.”
  4. ⚖️🤯🤮GARLAND’S OHIO JUDICIAL MELTDOWN — “High-Asylum-Denying” Immigration Judges Appointed By Barr & Sessions Remain On Garland’s Bench In Cleveland Despite Referring To Migrants As “Illegals” & “Pretty Virgins!” — EOIR Disciplinary System Remains As Opaque As Ever Under Garland!🏴‍☠️ Yulin Cheng Reports @ Columbus Dispatch!