Litigation – Page 22 – immigrationcourtside.com

👎🏽“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!

Alfred E. Neumann — Will Garland ever be held accountable for threatening the lives of migrants and undermining our entire justice system by running the most dysfunctional “court system” in America on his watch?
PHOTO: Wikipedia Commons

Dan Kowalski reports @ LexisNexis Immigration Community:

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca9-on-fundamental-fairness-alcaraz-enriquez-v-garland

CA9 on Fundamental Fairness: Alcaraz-Enriquez v. Garland

Alcaraz-Enriquez v. Garland

“Despite its obligation under Saidane, the DHS made no effort—good faith or otherwise—to procure for Alcaraz’s cross-examination the witnesses whose testimony was embodied in the probation report and upon whose testimony the BIA ultimately relied in denying his appeal. See id. This failure impugned the probation report’s reliability and rendered the BIA’s procedure fundamentally unfair. … Based on the BIA’s failure to require the DHS to make a good faith effort to present the author of the probation report or the declarant for Alcaraz’s cross-examination and the prejudice generated therefrom, we grant in part Alcaraz’s petition and remand for a hearing that comports with the requirements of § 1229a(b)(4)(B). … On remand, cross-examination of the author of the probation report (or the declarant) could affect both the IJ’s credibility determination as to Alcaraz and the BIA’s decision to credit the probation report’s version of events over Alcaraz’s.”

[Hats off again to Bob Jobe!]

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5th Cir. on illegal in absentia, defective notice, blown MTR:

https://www.ca5.uscourts.gov/opinions/unpub/20/20-60655.0.pdf

Rodriguez controls the outcome of this case. Here, as in Rodriguez, “[t]he initial NTA” sent to Lemus-Ayala “did not contain the time and date of [his] hearing.” Id. And just as in Rodriguez, see id., the BIA’s holding in this case that Lemus-Ayala was not entitled to recission of the in absentia removal order rested on the Board’s legal conclusion that an NTA “that does not specify the time and place of an individual’s removal hearing . . . meets the requirements of … §1229(a), so long as a hearing notice specifying this information is later sent to the individual.” The BIA’s conclusion to that effect was an abuse of discretion, as it was based on an erroneous interpretation of a statute. See Barrios-Cantarero, 772 F.3d at 1021.

An in absentia removal “order may be rescinded . . . upon a motion to reopen filed at any time if the alien demonstrates that the alien did not receive notice in accordance with . . . section 1229(a).” 8 U.S.C. § 1229a(b)(5)(C). Lemus-Ayala was not notified “in accordance with . . . section 1229(a),” and so, as in Rodriguez, the proper disposition is to vacate the BIA’s decision to deny Lemus-Ayala’s motion to reopen and rescind the in absentia removal order, and to remand the case for further proceedings. See 15 F.4th at 356.1

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

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

Dan Kowalski again:

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca4-on-psg-escobar-gomez-v-garland-unpub-2-1

CA4 on PSG: Escobar Gomez v. Garland (Unpub., 2-1)

Escobar Gomez v. Garland

“Carlos Escobar Gomez seeks review of the Board of Immigration Appeals’ (BIA) dismissal of his application for asylum. The BIA determined that Escobar Gomez was ineligible for asylum because he failed to establish membership in a particular social group defined with sufficient particularity. Because this ruling is not supported by a reasoned explanation, we grant the petition for review and remand to the BIA for further proceedings.” [Note the long and detailed concurrence by Judge Wynn.]

[Hats off to Nathan Bogart!]

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Even 4th Cir. “Ultra-conservative” Judge J. Harvie Wilkinson III has finally had enough, joining his panel colleagues in remanding after the BIA ignored both their own precedent and Circuit precedent on administrative closing in their “rush to no” to please their “partners” @ DHS Enforcement:

https://www.ca4.uscourts.gov/opinions/202322.U.pdf

Finally, Merida-Saenz asserts that the Board erred by failing to remand to the IJ for the administrative closure of his case pursuant to our decision in Romero v. Barr, 937 F.3d 282, 297 (4th Cir. 2019) (holding that IJs and the Board possess “the general authority to administratively close cases”). While the Board acknowledged that Merida-Saenz had argued for administrative closure on appeal, it neither explicitly resolved that argument nor applied any of the relevant administrative closure factors thereto. See In re Avetisyan, 25 I. & N. Dec. 688, 696 (B.I.A. 2012) (specifying administrative closure factors). Moreover, the Board’s resolution of Merida-Saenz’s continuance request did not resolve his administrative closure argument. Although a continuance and an administrative closure are similar forms of relief, they are distinct in purpose and in result. See Romero, 937 F.3d at 289, 294 n.12 (contrasting circumstances in which continuance is appropriate with circumstances in which administrative closure is appropriate); Gonzalez-Caraveo v. Sessions, 882 F.3d 885, 892 (9th Cir. 2018) (explaining that administrative closure is “like” a continuance but not identical thereto). Because the Board’s decision does not demonstrate that it has actually considered Merida-Saenz’s administrative closure argument, we grant the petition for review as to this argument and remand to the Board for further proceedings. See Gonzalez, 2021 WL 4888394, at *10 (remanding for Board to address administrative closure argument in first instance); Li Fang Lin v. Mukasey, 517 F.3d 685, 693-94 (4th Cir. 2008) (explaining that we cannot review the Board’s decision when the Board has given us “nothing to review”).

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

Obviously, the Article IIIs have their own due process problems with burying significant rulings, particularly in immigration, in highly inappropriate, approaching unethical, “unpublished” decisions. These aren’t “routine” cases except that material errors at Garland’s BIA are so frequent that Circuit Courts have wrongly come to view them as “routine” and thereby to “normalize” substandard judging.

That’s basically sweeping the festering and ever-growing problem of a dysfunctional and unjust EOIR “under the carpet” — something that both Garland and EOIR apparently have come to rely upon. The unpublished cases highlighted above each have important messages and analytical points for practitioners as well as the EOIR judges who screwed them up! Even Garland could learn by paying attention to the poor quality work being churned out by EOIR in his name!

You know you’ve hit rock bottom as an immigration jurist when even Judge Wilkinson can’t think of a way to paper over your errors and explain away your abuse of immigrants! The same might be said when you start getting reversed on a regular basis by the 5th Circuit — a court that almost never saw a migrant they didn’t want to dehumanize and deport!

In a real court system with real judges, DHS would be treated as a “party” not a “partner.” But, not in Garland’s courts, where judicial quality and fundamental fairness have gone to die and be buried. ⚰️🪦

Wonder why Dems struggle to govern? Look no further than the astounding lost opportunity for transforming EOIR into a real court system where great judges could be modeling due process, fundamental fairness, backlog-reducing better precedents, and best practices.

One of the best ‘fixes” for any broken system is appointing talented experts who will get the decisions right in the first place and promote excellence and efficiency by establishing, promoting, and, most of all enforcing, “best practices” systemwide, with particular emphasis on getting it right at the initial level, be that Immigration Court or the USCIS Asylum Office.

Of course, at EOIR that would mean appointing a BIA with judges who have the backgrounds and expertise to actually recognize what best interpretations and best practices are in the first place! Hint: It’s got nothing to do with bending over backwards to help “partners” at DHS enforcement, maximizing removal orders, positioning OIL to argue Chevron or Brand X, or thinking of new and creative ways that the system can be mis-used as a “deterrent” to individuals making claims for legal relief. Those were Sessions’s and Barr’s “priorities,” and Garland has done little to change the rancid culture in his Immgration Courts. See, e.g., https://immigrationcourtside.com/2021/12/15/%f0%9f%8f%b4%e2%80%8d%e2%98%a0%ef%b8%8f%f0%9f%91%8e%f0%9f%8f%bd%f0%9f%a4%ae-aimless-docket-reshuffling-adr-on-steroids-eoir-dysfunction-shows-what-happens-when/

Instead, Garland has given us a potentially fatal dose of “good enough for Government work” — on steroids, with lives and the foundations of our democracy hanging in the balance every day!🤮👎🏽👎🏽👎🏽👎🏽👎🏽🤡

It’s an entirely unnecessary, ongoing national disgrace!🤮

🇺🇸Due Process Forever!

PWS

12-20-21

🏴‍☠️👎🏽🤮 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!

https://www.asylumist.com/2021/12/01/cancel

-culture-in-immigration-court/

Cancel Culture in Immigration Court

December 1, 2021

For “respondents” (non-citizens in removal proceedings) and their lawyers, Individual Hearings in Immigration Court are a big deal. Evidence must be gathered. Affidavits have to be prepared, checked, and re-checked. Witnesses must be identified, convinced to attend the hearing, and prepared for trial. Respondents practice their testimony. In most cases, the noncitizen has been waiting for many months or years for the trial date. The result of the trial determines whether the applicant can remain in the United States or must leave. When a respondent receives asylum, he is permitted to stay in the U.S. If he loses, he may be deported to a country where he faces danger. In many cases, respondents have family members here or overseas who are counting on them, and the outcome of the case affects the family members as well as the respondent. All of this provokes anxiety and anticipation. In short, Individual Hearings are life-changing events that profoundly effect respondents and their families.

So what happens when the Individual Hearing is canceled?

“Sorry boys and girls, the ‘nice’ list is too long. We’ll reschedule Christmas for next year… or maybe the year after that.”

The first thing to know is that cancellations are common. Cases are canceled weeks, days or even minutes before the scheduled time. Indeed, we often cannot be sure that a case will actually go forward until the hearing begins.

Why does this happen?

There are many reasons, some more legitimate than others. The most common reason these days is the pandemic. Sometimes, courts close due to potential exposures. That is understandable, but as far as I can tell, these represent a small minority of Covid cancellations. I have had 50% or more of my Individual Hearings canceled over the last year and a half, and none of those was caused by a Covid exposure. I suspect that the large majority of these cancellations are due to reduced capacity to hear cases–since judges and staff are often working from home. Indeed, most pandemic cancellations seem to occur a week or two before the Individual Hearing. By that time, we’ve already completed and submitted the evidence, witness list, and legal brief, and have usually started prepping the client for trial. The client is also psychologically gearing up for the big event.

And then we check the online system and find that the case is off the docket.

What’s so frustrating about these cancellations is that we’ve been living with the pandemic since early 2020. The Immigration Courts should have adjusted by now. If cases need to be canceled, why not do that several months in advance? At least that way, applicants would not build up hope, only to have that dashed when the case is cancelled at the last minute. Also, it wastes attorney time–since we will have to submit updated country condition evidence (and perhaps other evidence) later, re-prep witnesses, and potentially prepare new legal briefs, if the law changes (which is more common than you’d like to think). For attorneys who charge hourly, this additional work will involve additional costs to the applicants. So all around, last minute cancellations are harmful, and it’s hard to understand why they are still so frequent.

“I’m double booked today, so let’s put off your heart surgery until 2023.”

Besides the pandemic, court cases are cancelled for a host of other reasons: Immigration Judges (“IJs”) are out sick, hearings get bumped to accommodate “priority” cases or sometimes cases are “double booked,” meaning that they are scheduled for the same time slot with the same IJ, and so only one can go forward. To me, all these are weak excuses for canceling individual hearings. Most courts have several judges, and so if one judge is out sick, or if a priority case must be scheduled at the last minute, another judge should be able to help out (in all but the most complicated cases, judges need little time to prepare for a hearing, and so should be able to adjudicate a case on short notice). Also, there is no excuse for double-booking cases. IJs should have a sense of their schedules and simply not overbook. In addition, all courts are overseen by Assistant Chief Immigration Judges (“ACIJs”), who should be available to hear cases if need be. Finally, given the ubiquity of video conferencing equipment and electronic records, judges can adjudicate cases remotely, and so there should almost always be a judge available to fill in where needed.

Of course, there are times when case cancellations are unavoidable, due to inclement weather, for example. But in an ideal world, these should be rare.

“Oy vey! I have to give priority to a better-looking couple. Let’s reschedule this wedding for later. Are you free in 2024?”

If the delay caused by case cancellations was measured in weeks or even months, the problem would not be so severe. But in many cases, hearings are postponed for one or two years–or even longer! This is obviously distressing for the applicant, as the long-anticipated end date is pushed back to who-knows-when. It is particularly devastating for applicants who are separated from family members. The long postponements are also a problem for the case itself, as evidence becomes stale and must be replaced with more up-to-date information, and laws change, which can require a new legal brief. In short, these delays often force the applicant (and the applicant’s lawyer) to do significant extra work on the case, and this can add additional costs in terms of legal fees.

It seems obvious to me that courts do not fully appreciate the damage caused by last minute cancellations. If judges and staff (and management) knew more about the harm these cancellations cause, perhaps they would make a greater effort to ensure that hearings go forward, and that any delayed hearings are rescheduled as quickly as possible.

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Readers of “Courtside” are familiar with the “toxic culture” of EOIR — actively encouraged by some Attorneys General, enabled and abetted by others.

The real problem here is that Immigration Courts are “led” by “managers” beholden to political agendas rather than the public they should serve. Also, since far too many EOIR “managers” and Immigration Judges have never represented individuals in Immigration Court, they are basically clueless as to the human and practical effects of their actions on individuals as well as on the dedicated, often pro bono or “low bono” lawyers who must guide their desperate and often re-traumatized clients through this morass.

At a time when the need for pro bono assistance has never been greater, the disgraceful dysfunction, mismanagement, and “studied user unfriendliness” of EOIR under Garland is actually discouraging attorneys from donating their time and endangering their emotional well-being! Could there be any worse public policy?

With so many extraordinarily talented, creative, courageous, independent legal minds out there in the private/NGO/academic sector of human rights/immigration/racial justice/due process this “intentional mediocrity (or worse)” is inexcusable. Yet, this massive failure of the U.S. justice system at the most basic level gets scant attention outside of Courtside, LexisNexis, ImmigrationProf Blog, Jeffrey S. Chase Blog, The Asylumist, and a few other specialized websites.

This “leading disintegrator of American justice and cosmic threat to our entire democracy” is largely “shoved under the carpet” by “mainstream media,” leaders of the legal profession (outside of immigration/human rights), politicians, policy makers, and the general public. Will they only “wake up” when it is too late and their own rights and futures have been diminished, dehumanized, and de-personified as if they were “mere migrants, not humans?”

In other words, who in America will always be immune from the “Dred Scottification of the other” now practiced, tolerated, and often even encouraged at the highest levels of our government? Don’t think it couldn’t happen to you! If immigrants, asylum seekers, and migrants in the U.S. are not “persons” under the Fifth Amendment, what makes YOU think that YOUR “personhood” will be honored by the powers that be!

In defense of today’s IJs, they actually have remarkably little control over their own dockets which are incompetently “micromanaged” from on high or by non-judicial “administrators.” Sound like a formula for an incredible, largely self-created, 1.5 million case backlog?

Cutting to the chase, the Immigration Courts are controlled by the Attorney General, a political official and a chief prosecutor to boot. Beyond that, no Attorney General has actually had to experience practice before the totally dysfunctional and intentionally user unfriendly “courts” he or she runs.

Foreign Service Officers must initially serve as consuls — the basic operating level of an embassy. Hotel managers usually start by working the front desk, where the “rubber meets the road” in the industry.

But, we enthrone those who are supposed to be the best, wisest, and fairest in the legal profession as Attorneys General and Article III Judges without requiring that they have had experience representing individuals at the “retail level” of our legal system — the U.S. Immigration Courts.

It doesn’t make sense! But, what does figure is that a system run by those without expertise and relevant experience, haphazardly “supervised” by Article III Judges who almost invariably exhibit the same blind spots, indifference to injustice, and lack of practical knowledge and expertise as those they are “judicially reviewing” has devolved into the worst court system in America. It’s an oppressive catastrophe where “liberty and justice are not for all” and survival is often more about the mood, mindset, or personal philosophy of the judge, or the “whim of the day” of DOJ politicos, than it is about the facts of the case or the most fair and reasonable applications of the law by experts! Is this really the way we should be determining who lives and who dies, who thrives and who will struggle just to survive?

These “courts” are not fair and impartial courts at all. They are places where service to the public comes last, poor leadership and mismanagement are tolerated and even rewarded, backlogs are out of control, due process, fundamental fairness, scholarship, and best practices scorned, and precious lives and human dignity routinely are ground to dust and scattered to the wind.

We deserve better from our legal system!

Once, there was a court system with a dream of a better future for all in America — a noble, if ambitious, vision, if you will: “through teamwork and innovation, become the world’s best administrative tribunals, guaranteeing fairness and due process for all.”😎

Now, sadly, that enlightened vision has disintegrated into a nightmare of dedicated dockets, biased precedents, endless backlogs, sloppy work, due process denying gimmicks, bogus statistics, mediocre judicial selections, secrecy, customer unfriendliness, dishonest blame shifting, and ridiculous Aimless Docket Reshuffling. ☠️

Attorney General Merrick Garland’s “limited vision” for EOIR is a continuing nightmare for those sentenced to appear and practice before his stunningly dysfunctional and “highly user unfriendly” Immigration “Courts.” Isn’t it high time to insist that those given responsibility for stewardship over America’s largest — and probably most consequential — Federal “Court” system actually have represented humans before those “courts?”
PHOTO: Thomas Hawk
Creative Commons
Amateur Night

Where there once was the promise of “light at the end of the tunnel,” now there is only “Darkness on The Edge of Town:”

Well lives on the line where dreams are found and lost
I’ll be there on time and I’ll pay the cost
For wanting things that can only be found
In the darkness on the edge of town
In the darkness on the edge of town

—- Bruce Springsteen

😎Due Process Forever!

PWS

12-15-21

☹️OFTEN INDIFFERENT OR OVERTLY HOSTILE TO THE CONSTITUTIONAL & HUMAN RIGHTS OF MIGRANTS & WOMEN, SUPREMES’ MAJORITY MIGHT GREEN-LIGHT “OPEN SEASON ON HUMANITY” FOR CBP AGENTS!☠️

Lydia Wheeler writes for Bloomberg Law’s Opening Argument:

https://openingargument.substack.com/p/kings-and-queens-of-border-puzzle

‘Kings and Queens’ of Border Puzzle Courts Divided on Liability

Lydia Wheeler

Welcome back to Opening Argument, a column where I dig into complicated legal fights, unpack issues dividing appeals courts, and discuss disputes ripe for Supreme Court review. On tap today: a look at when border patrol agents can be sued for violating someone’s constitutional rights.

Border patrol agents allegedly took Anas Elhady’s coat and shoes, and held him in a near-freezing cell without a blanket after he legally crossed the border back into the U.S. from Canada. Robert Boule was allegedly shoved to the ground by a border patrol agent who came onto his property without a warrant to check the immigration status of a guest at the inn Boule owns in Washington.

Can they each sue the agents for damages? The answer right now depends on which court is hearing their case.

The Supreme Court is expected to provide more clarity in a case it’s hearing later this term. Depending on how the justices rule, it could further insulate border patrol agents from liability.

If there’s no way to hold individual agents accountable for their conduct at the border, “then custom agents are kings and queens unto themselves,” said Elhady’s attorney Gadeir Abbas, a senior litigation attorney at the Council on American-Islamic Relations.

A 1971 Supreme Court decision gave people the right to hold federal officials liable when their constitutional rights are violated, but courts have been trying to figure out if or when that applies to immigration officials. So far, they’re coming to different conclusions.

The U.S. Court of Appeals for the Sixth Circuit said Elhady, who claimed his detainment violated his Fifth Amendment right to due process, didn’t have a right to sue the agents involved. The Ninth Circuit said Boule did.

. . . .

But the Supreme Court specifically refused to consider whether Bivens should be overruled when it agreed to hear the agent’s appeal in the Boule case. The justices will instead decide if you can bring a suit under Bivens for a First Amendment retaliation claim and whether you can sue federal officers engaged in immigration-related functions for allegedly violating your Fourth Amendment rights. Oral arguments in the case haven’t yet been scheduled.

“I could imagine a Supreme Court, in an opinion by Justice Alito saying something like ‘Yes Bivens still is the law, but we find that in this case involving enforcement of the immigration laws, Bivens claims really don’t fit and don’t belong, and limit Bivens one step further and say immigration cases are different,” said Kevin Johnson, the dean of University of California Davis School of Law.

If the court does that, Johnson, who’s written extensively on immigration law and civil rights, said it would embolden border patrol agents to feel like they can act with a great deal of discretion that will never be questioned.

To contact the reporter on this story: Lydia Wheeler in Washington at lwheeler@bloomberglaw.com

To contact the editor responsible for this story: Andrew Childers at achilders@bloomberglaw.com; Jo-el J. Meyer at jmeyer@bloombergindustry.com

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Read Lydia’s full report at the link.

Hard to argue with the analysis of Dean Kevin Johnson, the “most often cited” immigration scholar in America according to a recent survey.

Kevin R. Johnson
Dean
U.C. Davis Law, “Most Cited Immigration Practical Scholar”

The rampant abuses of legal and human rights by the CBP, systemic racial bias, and almost total lack of accountability have been well-documented by civil rights advocates. See, e.g., https://www.southernborder.org/border_lens_abuse_of_power_and_its_consequences

Here’s a telling excerpt from the foregoing report issued by the SPLC in 2020:

The number of deaths resulting from an interaction with CBP officers are indicators of the horrific culture of abuse, corruption, and disregard for human life that plagues the nation’s largest federal law enforcement agency. Unfortunately, these killings are not the only examples of abuse of power and corruption within CBP.

Numerous studies — both internal and external — have shown that CBP is plagued with a culture of impunity, corruption, and abuse. Its systemic problems also run deep. The discovery of a secret Facebook group full of racist, misogynist and xenophobic posts by Border Patrol agents brought to light more evidence of the agency’s culture of abuse. In it, agents routinely made sexist jokes, made fun of migrant deaths, and shared other hateful content. A year later, little action was taken by CBP, again pointing to the lack of transparency and accountability for the agency. Countless other reports have linked CBP to cases of officer misconduct, corruption and a general lack of accountability for criminal conduct and abusive actions.

Doesn’t sound to me like an ideal candidate for freedom from individual constitutional tort liability! Indeed, the reasons for applying Bivens to immigration agents appear quite compelling. Hard to think of a law enforcement agency more in need of “strict scrutiny.”

But, with the current Court majority, who knows? Kevin’s “highly educated guess” is as good or better than anyone else’s. After all, the Supreme’s majority had little difficulty enabling constitutional and human rights abuses carried out by the Trump regime on asylum seekers and other vulnerable migrants — in other words, “Dred Scottification” of the “other!”

Valerie Bauman
Investigative Reporter
Bloomberg
PHOTO: Twitter

Many thanks to Val Bauman over at Bloomberg for bringing this article to my attention. I’ve missed Val’s lively and incisive reporting on the “immigration beat” for her previous employer. Come on back to immigration, Val! We miss you!

🇺🇸Due Process Forever!

PWS

12-14-21

⚖️🗽NDPA OPPORTUNITY: GET SMARTER FASTER AS YOU PREPARE TO BATTLE FOR DUE PROCESS IN AMERICA’S WORST COURT SYSTEM!

Professor Stephen Yale-Loehr
Cornell Law

Free NYSBA asylum training CLE webinar Dec. 13 1-2 pm ET

Are you considering handling your first pro bono asylum case, but unsure of how to proceed? This free one-hour CLE training sponsored by the New York State Bar Association will orient you to the fundamentals of asylum eligibility and procedure, common issues to consider, and mentorship possibilities. Handouts will be provided.

When: Monday December 13, 2021, 1-2 pm ET

Where: online

Speakers: Victoria Neilson (Managing Attorney, Catholic Legal Immigration Network), Rebecca Press (Legal Director, UnLocal, Inc.), and Steve Yale-Loehr (Cornell Law School)

MCLE credits: 1.0

Cost: free

Event link and registration: https://nysba.org/events/handling-your-first-pro-bono-asylum-case-2/

If you aren’t an NYSBA member, call 800-582-2452 to register.

The CLE will be recorded and available to people who register but can’t attend the live event.

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

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Thanks, Steve, my friend, for passing this on! I’m grateful for all you do to educate, guide, support, and most of all inspire the NDPA in the never-ending fight to force our Government to make due process and fundamental fairness for all persons in America, regardless of race, creed, or status, a reality rather than the cruel farce it is today!

Never has the need for talented pro bono representation in Immigration Court been greater.

And, the Garland DOJ’s indifference to long overdue due process, quality control, personnel, and best practices reforms in the broken and backlogged EOIR system means that the battle to save lives and force change through aggressive litigation is just beginning and ultimately will succeed!

The good news: Given the endemic lack of expertise, discombobulated administration, and disregard for quality at EOIR, the “talent balance” favors the NDPA! Many deserving lives can be saved and at least some degree of accountability forced on Garland’s dysfunctional EOIR through aggressive, well prepared litigation that makes compelling records, advances correct interpretations and applications of the law, and resists and triumphs over the “race to the bottom” that has destroyed and perverted justice in our Immigration Courts.

🇺🇸Due Process Forever!

PWS

12-07-21

⚖️🛡⚔️ROUND TABLE CONDEMNS RESTART OF “REMAIN IN MEXICO!”

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

RT Statement – MPP Restart (Final)

December 6 , 2021
The Round Table of Former Immigration Judges is a group of 51 former Immigration Judges and Members of the Board of Immigration Appeals who are committed to the principles of due process, fairness, and transparency in our Immigration Court system.
There has been no greater affront to due process, fairness, and transparency than the MPP, or “Remain in Mexico” policy. Instituted under the Trump Administration, it appears to have been motivated by nothing other than cruelty.
Tragically, to comply with a most misguided court order, the Biden Administration, which promised us better, is today not only resuming the program with most of its cruelty intact, but expanding its scope to now apply to nationals of all Western Hemisphere countries.
In 1997, the BIA issued a precedent decision, Matter of S-M-J-, that remains binding on Immigration Judges and ICE prosecutors. In that decision, the BIA recognized our government’s “obligation to uphold international refugee law, including the United States’ obligation to extend refuge where such refuge is warranted. That is, immigration enforcement obligations do not consist only of initiating and conducting prompt proceedings that lead to removals at any cost. Rather, as has been said, the government wins when justice is done.”1
One of the cases cited by the BIA was Freeport-McMoRan Oil & Gas Co. v. FERC,2 a decision which concluded: “We find it astonishing that an attorney for a federal administrative agency could so unblushingly deny that a government lawyer has obligations that might sometimes trump the desire to pound an opponent into submission.”
The MPP policy constitutes the pounding into submission of those who, if found to qualify for asylum, we are obliged by international law to admit, protect, and afford numerous fundamental rights. The “pounding” in this instance is literal, with reports of those lawfully pursuing their right to seek asylum in the U.S. being subject to kidnappings, extortion, sexual abuse, and other
1 Matter of S-M-J-, 21 I&N Dec. 722, 728 (BIA 1997). 2 962 F.2d 45, 48 (D.C. Cir. 1992).

threats and physical attacks.3 This is the antithesis of fairness, in which the parties are not afforded equal access to justice.
Concerning due process, a statement issued by the union representing USCIS Asylum Officers, whose members interview asylum applicants subjected to the program, noted that MPP denies those impacted of meaningful access to counsel, and further impedes their ability to gather evidence and access necessary resources to prepare their cases.4 As former judges who regularly decided asylum claims, we can vouch for the importance of representation and access to evidence, including the opinions of country condition experts, in successfully obtaining asylum. Yet according to a report issued during the Trump Administration, only four percent of those forced to remain in Mexico under MPP were able to obtain representation.5 As of course, DHS attorneys are not similarly impeded, the policy thus fails to afford the parties a level playing field.
As to transparency, one former Immigration Judge from our group who attempted to observe MPP hearings under the prior administration was prevented from doing so despite having the consent of the asylum seeker to be present. A letter from our group to the EOIR Director and the Chief Immigration Judge expressing our concern went unanswered.
Like many others who understand the importance that a fair and independent court system plays in a free and democratic society, we had hoped to have seen the last of this cruel policy. And like so many others, we are beyond disappointed to learn that we were wrong. On this day in which MPP is being restarted, we join so many others both within and outside of government in demanding better.
We urge the Biden Administration to end its unwarranted expansion of MPP; to instead do everything in its power to permanently end the program; and to insure that in the interim, any court-ordered restart of MPP first accord with our international treaty obligations towards refugees, and with the requirements of due process and fairness on which our legal system is premised.
Contact Jeffrey S. Chase, jeffchase99@gmail.com
3 See the compilation of of publicly reported cases of violent attacks on those returned to Mexico under MPP by Human Rights First, available at https://www.humanrightsfirst.org/sites/default/files/ PubliclyReportedMPPAttacks2.19.2021.pdf.
4 American Federation of Government Employees, National Citizenship and Immigration Services Council 119, “Union Representing USCIS Asylum Officers Condemns Re-Implementation of the Migrant Protection Protocols” (Dec. 2, 2021).
5 Syracuse University, TRAC Immigration, “Contrasting Experiences: MPP vs. Non-MPP Immigration Court Cases,” available at https://trac.syr.edu/immigration/reports/587/.

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

Thanks to “Sir Jeffrey” Chase for leading this effort. It’s an honor and a privilege to serve with you and our other colleagues on the Round Table!

🇺🇸Due Process Forever!

PWS

12-06-21

☠️☠️ ☠️TRIPLE HEADER — 10TH CIRCUIT FINDS MULTIPLE MATERIAL ERRORS IN YET ANOTHER DISGRACEFUL WRONGFUL ASYLUM DENIAL BY GARLAND’S BIA!🤮

Four Horsemen — BIA Asylum Panel In Action
Albrecht Dürer, Public domain, via Wikimedia Commons

Dan Kowalski reports for LexisNexis Immigration Community:

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca10-corrects-massive-bia-failure-villegas-castro-v-garland#

CA10 Corrects Massive BIA Failure: Villegas-Castro v. Garland

Villegas-Castro v. Garland

“We conclude that the Board erred in three ways. First, the Board erred in overturning the grant of asylum. The Board decided that Mr. Villegas-Castro had not filed a new application. But if he hadn’t filed a new asylum application, he wouldn’t need to show a material change in circumstances. And with the remand, the immigration judge enjoyed discretion to reconsider the availability of asylum. Second, the Board erred in rejecting the immigration judge’s credibility findings without applying the clear-error standard. The immigration judge concluded that Mr. Villegas-Castro’s conviction had not involved a particularly serious crime. For this conclusion, the immigration judge considered the underlying facts and found Mr. Villegas-Castro’s account credible. The Board disagreed with the immigration judge’s credibility findings but didn’t apply the clear-error standard. By failing to apply that standard, the Board erred. Third, the Board erred in sua sponte deciding that Mr. Villegas-Castro was ineligible for (1) withholding of removal or (2) deferral of removal under the Convention Against Torture. The Board reasoned that the immigration judge had already denied withholding of removal under federal law and the Convention. But the Board’s general remand didn’t prevent fresh consideration of Mr. Villegas-Castro’s earlier applications. So the Board erred in sua sponte rejecting the applications for withholding of removal and deferral of removal under the Convention Against Torture. We thus grant the petition for judicial review, remanding for the Board to reconsider Mr. Villegas-Castro’s application for asylum, to apply the clear-error standard to the immigration judge’s credibility findings, and to reconsider the applications for withholding of removal and deferral of removal under the Convention Against Torture.”

[Hats off to Harry Larson, formerly of Quinn Emanuel Urquhart & Sullivan, LLP, Chicago, Illinois (Andrew H. Schapiro, Quinn Emanuel Urquhart & Sullivan, LLP, Chicago, Illinois, and Keren Zwick and Tania Linares Garcia, National Immigrant Justice Center, Chicago, Illinois, with him on the briefs), on behalf of the Petitioner, and Simon A. Steel, DENTONS US LLP, Washington, D.C., and Grace M. Dickson, DENTONS US LLP, Dallas, Texas, filed a brief for Amici Curiae, on behalf of Petitioner!]

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A prime example of the “any reason to deny culture,” that Garland has allowed to continue, at “work” — although it doesn’t appear the BIA actually did any “work” here beyond insuring that the bottom line in the staff attorney’s draft was against the asylum seeker!

As I raised yesterday, how is it that this fatally flawed group continues to get “Chevron deference” from the Article IIIs?

https://immigrationcourtside.com/2021/12/02/%e2%9a%96%ef%b8%8f4th-cir-chief-circuit-judge-roger-gregory-dissenting-castigates-colleagues-on-grantng-chevron-deference-to-bia/

Also, why isn’t every group of legal professionals in America “camped” on Judge Garland’s doorstep @ DOJ demanding meaningful change @ EOIR as the degradation of American justice and demeaning of human lives continue largely unabated?

🇺🇸Due Process Forever!

PWS

12-03-21

⚖️4TH CIR. — CHIEF CIRCUIT JUDGE ROGER GREGORY (DISSENTING) CASTIGATES COLLEAGUES ON GRANTNG “CHEVRON DEFERENCE” TO BIA!

Chief Judge Roger Gregory
U.S. Court of Appeals
Fourth Circuit

Pugin v. Garland, 4th Cir., 12-01-21, published, 2-1 (Chief Judge Gregory, dissenting)

https://www.ca4.uscourts.gov/opinions/201363.P.pdf

GREGORY, Chief Judge, dissenting:

The majority concludes that because the phrase “in relation to obstruction of justice”

in § 1101(a)(43)(S) is ambiguous, the Board of Immigration Appeals’ (“BIA”) renewed interpretation of this provision is due Chevron deference. The majority also concludes that the BIA’s interpretation of “reasonably foreseeable”—in the context of before an investigation or proceeding—is reasonable. Because, in my view, the phrase is not ambiguous, the BIA is not due Chevron deference. However, even if § 1101(a)(43)(S) is ambiguous, the BIA’s conclusion that a formal nexus to an ongoing investigation is not required—based solely on the express exception in § 1512 and the catchall provision that it wrongly interpreted—is unreasonable. Thus, I disagree that Petitioner’s conviction of “Accessory After the Fact to a Felony,” under § 18.2–19 of the Virginia Code, is a categorical match with the generic offense of § 1101(a)(43)(S). For these reasons, I respectfully dissent.

. . . .

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Of interest:

The “previous interpretation” discussed here, that the BIA subsequently “ditched” in favor of a more pro-DHS one, is Matter of Espinoza- Gonzalez, 22 I. & N. 889 (B.I.A. 1999), a “Schmidt Era” en banc decision written by Judge Ed Grant in which I joined.
64 pages of arcane discussion and citations from three Circuit Court of Appeals’ Judges who cannot agree on the result shows the continuing disingenuous absurdity of a system that claims that “unrepresented” immigrants receive due process — many of these cases require not only lawyers, but great lawyers with expertise in immigration, criminal law, and statutory interpretation to achieve fair resolution;
Both the majority and the dissent “talk around” a major problem in the misapplication of “Chevron deference” to the BIA: In recent years, the BIA invariably adopts “any interpretation” offered by the DHS over better interpretations offered by respondents and their lawyers — this is a “rigged system” if there ever was one. For Article III Courts to “legitimize” the bogus application of Chevron by a non-expert tribunal that views itself as an extension of DHS Enforcement is a disgraceful dereliction of judicial duty!

🇺🇸Due Process Forever!

PWS

12-02-21

⚖️9TH PANEL LETS IT ALL HANG OUT ON IMMIGRATION CASE — Goulart v. Garland

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/11/18/19-72007.pdf

From the dissent by U.S. District Judge Edward R. Korman, EDNY, sitting by designation:

Goulart is not a sympathetic character. I can understand the desire to remove convicted burglars from this country. Indeed, Judge VanDyke questions why I have bothered to “champion” the cause of a convicted burglar. The answer should be obvious. The judicial oath, which was adopted in the Judiciary Act of 1789, requires us to “administer justice without respect to persons, and do equal right to the poor and to the rich.” See 1 Stat. 73, 76 (codified at 28 U.S.C. § 453). We take such an oath, which derives from biblical teachings, see Deuteronomy 1:17, so as not to be blinded by our like or dislike of the parties. We are not called to decide whether Goulart is a good person, but rather whether a person who has been banished from the United States without legal justification should be permitted to seek to return. The Supreme Court has held that the precise statute under which Goulart was deported violates the Constitution. Principles of law and equity require that he be permitted to move for reconsideration in this case. I respectfully dissent.

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Wow! Three opinions on a three-judge panel! Been there, done that! Reminds me of my long gone days on the “Schmidt BIA” when we all took our jobs seriously, even if it often didn’t result in “fake unanimity” (the watchword of today’s dysfunctional BIA).

For those who like to apply “ideological analysis” to Article III decisions, this one doesn’t “fit the mold:”

Judge Richard A. Paez (“majority” opinion) is a Clinton appointee.

Judge Lawrence VanDyke (concurring opinion) is a Trump appointee.

Judge Edward R. Korman (dissenting opinion) is a Reagan appointee.

That being said, the majority’s rationale that a deported respondent should have been a “legal clairvoyant,” predicting the eventual Supreme Court decision finding the statute under which he was convicted unconstitutional, is a piece of absurdist legal sophistry. Wonder what the result might have been if the panel majority didn’t look at him as an “alien bank robber,” not deserving of fair treatment or legal rights? Reminds me of what my former “boss” the late “Iron Mike” Inman used to yell at me during heated arguments at the “Legacy INS OGC:” “What did they teach you at that law school!”

🇺🇸Due Process Forever!

PWS

11-20-21

🏴‍☠️👎🏽MORE REBUKES FOR GARLAND’S INEPT BIA, ASHCROFT: 1st Cir. Questions Ashcroft’s Matter Of Y-L-, 23 I&N Dec. 370 (AG 2002) Even As OIL Disavows BIA’s (Non) Analysis — 11th Slams BIA’s Unreasonable Rejection Of Future Persecution, Withholding, CAT For Sri Lankan!

From Dan Kowalski @ LexisNexis Immigration Community:

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca1-puts-a-dent-in-matter-of-y-l–decarvalho-v-garland#

CA1 Puts a Dent in Matter of Y-L-: DeCarvalho v. Garland

DeCarvalho v. Garland

“The Board of Immigration Appeals (BIA) held that Janito DeCarvalho’s conviction for possession of oxycodone with intent to distribute in violation of Mass. Gen. Laws ch. 94C, § 32A(a), constitutes a “particularly serious crime” that makes him ineligible for withholding of removal. See 8 U.S.C. § 1231(b)(3)(B)(ii). The BIA also denied DeCarvalho’s application for deferral of removal under the Convention Against Torture (CAT). DeCarvalho petitions for review of the BIA’s decisions, principally arguing that the Attorney General’s decision in Matter of Y-L- unlawfully presumes that all aggravated felonies involving trafficking in controlled substances are particularly serious crimes. See 23 I. & N. Dec. 270, 274–75 (U.S. Att’y Gen. 2002). We deny his petition for review insofar as he seeks CAT relief. We grant the petition in part, however, because the immigration judge (IJ) informed DeCarvalho, who was proceeding pro se, that he was eligible for potential relief only under the CAT. In so doing, the IJ treated DeCarvalho’s conviction for drug trafficking as if it were a per se bar to withholding of removal, a position that the government now disavows on appeal. We remand to the agency with instructions to give DeCarvalho a new hearing to determine whether he is entitled to withholding of removal.”

[Hats off to Trina Realmuto, Tiffany Lieu, and Jennifer Klein!]

***********

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca11-on-future-persecution-cat-jathursan-v-atty-gen#

CA11 on Future Persecution, CAT: Jathursan v. Atty. Gen.

Jathursan v. Atty. Gen.

“Pathmanathan Jathursan, a native and citizen of Sri Lanka, seeks review of the Board of Immigration Appeals’ (“BIA”) final order affirming the immigration judge’s denial of his application for asylum, withholding of removal, and relief under the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (“CAT”). The BIA found no clear error in the immigration judge’s findings that Jathursan failed to establish (1) past persecution on account of a protected ground, (2) a well-founded fear of future persecution on account of a protected ground, or (3) that he would more likely than not be tortured in the event he returned to Sri Lanka. Following oral argument, we grant Jathursan’s petition for review in part, vacate the BIA’s order in part, and remand to the BIA for further consideration of his asylum and withholding-of-removal claims based on his fear of future persecution as a Tamil failed asylum seeker. We also vacate and remand on the BIA’s denial of relief under CAT.”

[Hats off to Visuvanathan Rudrakumaran!]

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

What’s the “worst of all worlds?” Let’s try a ”holdover BIA” still channeling Trump/Miller biased nativist restrictionism combined with a Dem AG with infinite tolerance for substandard judging, an anti-immigrant culture, and bad decision making that disproportionately adversely affects people of color! 😎 Add that to an out of control, largely self-created, jaw-dropping 1.5 million case backlog and you get a formula for national disaster!

These “TRAC Lowlights” show a totally unacceptable and inept performance by the DOJ and Judge Garland that should have every American who believes in due process, equal justice, and “good government” outraged and demanding a change at DOJ! https://trac.syr.edu/immigration/quickfacts/?category=eoir

Highlights from data updated today on immigrants facing deportation in court include the following:

Immigration Courts recorded receiving 49,817 new cases so far in FY 2022 as of October 2021. This compares with 21,154 cases that the court completed during this period.

According to court records, only 0.68% of FY 2022 new cases sought deportation orders based on any alleged criminal activity of the immigrant, apart from possible illegal entry.

At the end of October 2021, 1,486,495 active cases were pending before the Immigration Court.

Los Angeles County, CA, has the most residents with pending Immigration Court deportation cases (as of the end of October 2021).

So far this fiscal year (through October 2021), immigration judges have issued removal and voluntary departure orders in 24.7% of completed cases, totaling 5,232 deportation orders.

So far in FY 2022 (through October 2021), immigrants from Guatemala top list of nationalities with the largest number ordered deported.

Only 20.7% of immigrants, including unaccompanied children, had an attorney to assist them in Immigration Court cases when a removal order was issued.

Immigration judges have held 2,011 bond hearings so far in FY 2022 (through October 2021). Of these 714 were granted bond.

You don’t have to be a Rhodes Scholar to see how an undisciplined system run by clueless politicos and bureaucrats (rather than judges and experts) that takes in more cases than it can decide, picks on unrepresented individuals, deports large numbers of Guatemalans to a country that is clearly in crisis, and grants bond to only 1/3 of the custody cases even with a minuscule percentage of so-called “criminal immigrants” in proceedings is failing, miserably, every day.

What’s even worse, is that there is NO credible plan to fix this! NONE! Throwing more bodies into the maelstrom, poorly thought out proposed asylum regulations, dedicated dockets, and misuse of Title 42 to block proper access to those seeking asylum and other forms of legal protection won’t do the trick. No qualified expert would propose any of the foregoing as the solution to fairly and legally reducing backlogs. That tells us all we need to. know about the qualifications of the folks “pulling the strings” on immigration in the Biden Administration.

The message: The GOP hates immigrants, and the Dems disrespect them!

We’ll see whether the Biden Administration’s contemptuous treatment of immigrants, their families, communities, and supporters, particularly their failure to “clean up, clean out, and reform” their wholly owned “courts” at EOIR, proves to be a great political strategy. Frankly, I can’t see how dumping on a key group of supporters from the last successful election proves to be a “winner” in 2022 or 2024!

The extraordinary quality of the work done by the NDPA all-stars 🌟highlighted above by Dan speaks for itself, as does the unacceptably poor quality of the legal work done by EOIR and a BIA that is bogusly presenting itself as “experts.” Obviously, as has been clear from the beginning of the Biden Administration, the wrong people are on the BIA and Team Garland has disgracefully failed to do the serious and gutsy “recruitment and replacement” necessary to fix this dysfunctional EOIR system and save lives!

The absolute disaster for our legal system and the reprehensible result of Garland & Co’s failure to “pull the plug” on the “Miller Lite BIA” and to make wholesale merit-based positive changes in the recruitment, selection, and composition of the Immigration Judiciary will go down as a legacy that not only will reflect ill on Garland and his lieutenants, but will also be a major factor promoting the failure of American democracy.

You can tell a lot about the values of a society by the way it treats the most vulnerable among it. Right now, sadly, that’s “nothing to write home about!”🤮

🇺🇸Due Process Forever!

PWS

11-18-21

🤮👎PROPER CAT ANALYSIS A VICTIM OF GARLAND’S “ANY REASON TO DENY” BIA — Arulnanthy v. Garland, 5th Cir.

Dan Kowalski reports from LexisNexis Immigration Community:

https://www.ca5.uscourts.gov/opinions/pub/19/19-60760-CV0.pdf

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca5-on-jurisdiction-cat-arulnanthy-v-garland#

“The collateral consequences of the BIA’s order ensure that Arulnanthy’s petition for review remains justiciable despite his removal to Sri Lanka. Substantial evidence supports the finding that Arulnanthy was not a credible witness. And the BIA was right to consider Arulnanthy’s lack of credibility fatal to his asylum claim. But the BIA’s refusal to consider his country-conditions evidence in the purely objective CAT context was error. We therefore REMAND the petition as to the CAT claim and DENY it in all other respects.”

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

This isn’t “rocket science” and the 5th Circuit is hardly known as a hotbed of due process and fundamental fairness for migrants!

But, when the BIA starts with “the migrant loses” as the “bottom line,” and then reasons backwards (if they bother reasoning at all, in their usual haste to keep the “deportation assembly line” moving) the “analysis” is likely to be defective. This 5th Circuit panel actually took their job of analyzing the record before them more seriously than Garland “faux expert” BIA!

One would think that a former Court of Appeals Judge would take due process, impartiality, and quality control seriously in his “wholly owned and operated ‘court’ system.” But, that would be someone other than Judge Garland!

🇺🇸Due Process Forever! Xenophobia, Never!

PWS

11-09-21

⚖️👎🏽LATEST QUAD OF ARTICLE III “BODY SLAMS” SHOWS ENDEMIC PROBLEM OF ANTI-IMMIGRANT BIAS, UNPROFESSIONAL WORK PRODUCT @ GARLAND’S BIA — Wrong On: PSG, Failure Of State Protection, Internal Relocation, Nexus, Right To Counsel, Statutory Interpretation!

Dan Kowalski reports for LexisNexis Immigration Community:

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca6-on-psg-zometa-orellana-v-garland-unpub

CA6 on PSG: Zometa-Orellana v. Garland (Unpub.)

Zometa-Orellana v. Garland

“Ana Mercedes Zometa-Orellana, a native and citizen of El Salvador, suffered regular beatings and rape by her domestic partner. She sought asylum and withholding of removal based both on political opinion and membership in a particular social group. An immigration judge (IJ) denied asylum and withholding of removal, and the Board of Immigration Appeals (BIA) affirmed that ruling. Since then, however, a crucial case on which both the BIA and the IJ relied to assess Zometa-Orellana’s particular social group was vacated by the Attorney General. And the IJ and BIA failed to consider the entire record in determining the El Salvadorian Government’s willingness to respond and Zometa-Orellana’s ability to relocate in El Salvador. For these reasons, we GRANT the petition, VACATE the BIA’s decision, and REMAND for further proceedings in accordance with this opinion.”

[Hats off to Dr. Alicia Triche!]

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https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca4-on-nexus-aleman-medrano-v-garland-unpub

CA4 on Nexus: Aleman-Medrano v. Garland (Unpub.)

Aleman-Medrano v. Garland

“Aleman-Medrano’s central argument on appeal is that the agency [EOIR: the IJ and the BIA] erred at the second step of the analysis, improperly rejecting his claim that he was targeted by gang members “on account of” his family ties to his daughter. We agree and, finding no independent basis on which to affirm the agency’s denial of relief, remand for further proceedings. … [W]e are compelled to conclude that Aleman-Medrano’s relationship with his daughter was at least one central reason why he, and not someone else, was threatened by MS-13. … MS-13’s threats to Aleman-Medrano arose “on account of” his family ties and that he thus has met the nexus requirement for both asylum and withholding of removal.”

[Hats off to Abdoul A. Konare!]

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

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca9-2-1-on-right-to-counsel-usubakunov-v-garland

CA9 (2-1) on Right to Counsel: Usubakunov v. Garland

Usubakunov v. Garland

“This is not a case of a petitioner abusing the system or requesting serial delays of his merits hearing—Usubakunov had found an attorney willing to take his case. Although it may be tempting to look for a bright-line rule, we hew to our precedent that the “inquiry is fact-specific and thus varies from case to case.” Biwot, 403 F.3d at 1099. In doing so, we do not suggest that there is “no limit,” Dissent at 19, to the permissible delay for obtaining a lawyer. Our factspecific inquiry here leads us to conclude that the IJ’s refusal to grant a continuance violated Usubakunov’s right to counsel. … This case illustrates diligence, not bad faith, coupled with very difficult barriers faced by a detained applicant who does not speak English. Usubakunov sought and identified counsel within the period the IJ originally thought reasonable, but he was stymied by counsel’s scheduling conflict. He had identified by name and organization the lawyer who would ultimately represent him, and Usubakunov thus sought his first continuance of the merits hearing. We conclude that “[u]nder these circumstances, denial of a continuance was an abuse of discretion because it was tantamount to denial of counsel.” Biwot, 403 F.3d at 1100. Given these unique circumstances, our grant of the petition will not open the floodgates of continuances, as we apply the same fact-based inquiry we have done for years. That concludes our inquiry, as a petitioner who is wrongly denied assistance of counsel at his merits hearing need not show prejudice. See Gomez-Velazco, 879 F.3d at 993 (citing Montes-Lopez v. Holder, 694 F.3d 1085, 1090 (9th Cir. 2012)). In light of the need to remand for a new hearing, we do not address Usubakunov’s other challenges. We grant Usubakunov’s petition for review and remand for further proceedings. PETITION GRANTED and REMANDED.”

[Hats off to Bardis Vakili (argued), ACLU Foundation of San Diego and Imperial Counties, San Diego, Kristin MacLeod-Ball, American Immigration Council, Brookline, Massachusetts; Mary Kenney, American Immigration Council, Washington, D.C.; for Amicus Curiae American Immigration Council; and Laura J. Edelstein, Jenner & Block LLP, San Francisco, California, for Amicus Curiae Women’s Refugee Commission!]

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

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/natz-victory-slams-matter-of-zhang-melara-v-mayorkas

Natz. Victory Slams Matter of Zhang: Melara v. Mayorkas

Melara v. Mayorkas

“Matter of Zhang, 27 I&N Dec. 569 (BIA 2019) is not entitled to deference by this Court because it is a dramatic break with past agency interpretation, is in conflict with the Department of State’s current interpretation of the false claim to citizenship ground of inadmissibility, and is a break from Congress’s clearly expressed intent. An agency’s interpretation of an unambiguous statute receives no deference if the interpretation is not in line with Congress’s clearly expressed intent. See, e.g., Valenzuela Gallardo v. Lynch, 818 F.3d 808, 815 (9th Cir. 2016). Matter of Zhang takes a dramatic and unique approach to the knowledge element out of the term “false claim to U.S. citizenship.” See, e.g., Richmond v. Holder, 714 F.3d 725, 729 (2d Cir. 2013) (assuming without deciding that false claim inadmissibility provision has knowledge element); Muratoski v. Holder, 622 F.3d 824, 828 (7th Cir. 2010) (agency determined that applicant lacked good moral character because he “knew or should have known” that he was not a United States citizen at the time he made that claim); Valdez-Munoz v. Holder, 623 F.3d 1304, 1308 (9th Cir. 2010) (reasonable factfinder would not be compelled to disagree with agency’s determination that applicant was inadmissible because he “intended to and did make a false claim of United States citizenship”). … The Court finds that Petitioner Antonio Fernando Melara has met his burden of proving each element of naturalization by preponderance of the evidence. Judgment is GRANTED for Petitioner.”

[Hats way off to Sabrina Damast and Patricia M. Corrales!]

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Individuals are being mistreated! Attorneys are frustrated! Due Process is mocked! Garland is disinterested in fixing the huge structural, personnel, and quality control problems at BIA/EOIR!

🇺🇸Due Process Forever!

PWS

11-03-21

⚖️🗽TIRED OF BUREAUCRATIC DOUBLESPEAK & BS ON ASYLUM FROM EOIR & DHS? — Get The “Real Skinny” On How U.S. Asylum Should Operate From This Free ABA Seminar Featuring Round Table 🛡⚔️ Experts Judge Joan Churchill, Judge Paul Grussendorf, & Judge Jeffrey Chase On Wednesday, Nov. 10! (Registration Required)

Judge Joan Churchill — Honorable Joan Churchill
Retired U.S. Immigration Judge
Member Round Table of Retired Judges

Hon. Paul Grussendorf
U.S. Immigration Judge (Ret.)
Member, Round Table of Former IJs
Author
Source: Amazon.com

American Bar Association International Law Section

Program Spotlight: Refugees and Asylum in the U.S.

&

Review of Domestic Interpretations at Odds with International Guidance

Presented by the American Bar Association International Law Section, Immigration & Naturalization Committee, and the International Refugee Law Committee

Wednesday, November 10, 2021

12:00pm ET – 1:00pm ET

Register Today for this Free Program:

This program will review the differences between the Refugee and Asylum processes (which includes Withholding of Removal) in order to provide clarity to new practitioners about the stark contrasts between the two U.S. refugee programs and to inform on international law compliance.

Topic 1: Contrast and compare Refugees and Asylum law and process, and

Topic 2: Compare U.S. domestic interpretations of the legal criteria of Refugees and Asylum seekers with international law and policy.

Moderator and Chair: Joan Churchill (Former Immigration Judge)

Speakers:

Topic 1: The Hon. Paul Grussendorf

Paul Grussendorf has worked with both the refugee and asylum programs in the United States and abroad. He headed a law school legal clinic at the The George Washington University Law School representing asylum seekers, served as an Immigration Judge handling asylum cases, worked as a Supervisory Asylum Officer with the U.S. Department of Homeland Security Office of Citizenship and Immigration Services [CIS], as a refugee officer with Refugee Affairs Division of USCIS, and as a refugee officer and supervisor with the UNHCR, the UN Refugee Agency.

Topic 2: The Hon. Jeffrey Chase

Jeffrey Chase is a retired Immigration judge for New York City. He has written extensively about the inter relationship of international law sources with the U.S. national law when administering cases involving asylum and refugee applications.

He has a blog entitled Opinions/Analysis on Immigration Law. He coordinates The Round Table of Retired Immigration Judges, an informal group of Retired Immigration Judges from both the trial and appellate level, who weigh in on topics relating to the administration of justice by the Immigration Court. The Round Table files amici briefs, and has issued position papers and testimony on issues affecting due process and the administration of justice by the Immigration Courts.

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

Many thanks to my round table friends and colleagues for putting this fantastic free program together and to the ABA International Law Section for sponsoring it!

In 1980, Congress enacted the Refugee Act of 1980 to bring the U.S. into compliance with the U.N. Convention & Protocol on The Status of Refugees, to which we are a signatory through the Protocol.

After some steady progress over the first two decades, today, as a result of actions taken by the last four Administrations since 2001, we are further away than ever from the goal of compliance. Bungling bureaucrats at DHS and DOJ wrongfully view large numbers of refugees and asylees as a “threat” to be “deterred,” rather than as the legal obligation and undeniable assets to our nation that they in truth are.

They fail miserably to fix systemic problems, to properly welcome refugees and asylees, and to adjudicate their claims in a fair and timely manner consistent with due process and racial justice. With stunning tone deafness, they eschew the advice of experts like Judges Churchill, Grussendorf, and Chase in favor of cruel, inept, and “bad faith” gimmicks, like gross misuse of Title 42 to suspend the asylum system indefinitely without Congressional approval.

One only has to look at the evening news to see firsthand what a horrible failure these “Stephen Miller Lite” policies have been and how they ruin lives and trash the reputation of our nation. The failure of the Biden Administration to make good on its campaign promises to migrants and refugees is nothing short of a national disgrace!

The first step in holding Mayorkas, Garland, and the others responsible for this ongoing mess accountable and restoring the rule of law is to understand how the system should and could work.

Then, you will have the tools to sue the hell out of the irresponsible public officials and their bumbling bureaucrats, lobby Congress for better protections for asylum seekers, and generate outraged public opinion until the rule of law, common sense, and human decency are restored to our land! And, we can save some lives that are well worth saving in the process!

Knowledge is power! The Biden Administration’s knowledge of how to implement an efficient, practical, legal, successful asylum system would fit in a thimble with room left over! Get the “upper hand” by listening to these Round Experts!

🇺🇸Due Process Forever!

PWS

11-02-21

☹️👎🏽BUMBLING BIA BADLY BUNGLES BASICS, AGAIN! — Applies Wrong Standard In Seeking To Reverse Valid CAT Grant — Obviously Frustrated 3rd Cir. Reinstates IJ Decision Following BIA’s Inept Attempt @ Appellate Review! — Arreaga Bravo v. A.G.

Woman Tortured — The BIA’s blunders in trying to help out their “partners” @ DHS Enforcement can sometimes seem almost comical. But, they are no laughing matter to those facing persecution or torture as a result! Why is Garland indifferent to life-threatening injustice in his courts?
Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons

https://www2.ca3.uscourts.gov/opinarch/203300p.pdf

Key Quote from Judge Greenaway’s decision:

Given the strength and rigor of the IJ’s underlying opinion, along with the BIA having exceeded its proper scope of review, we will vacate the BIA’s final order of removal and remand with instructions to reinstate the IJ’s opinion.

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

There is the good, the bad, the ugly, and the absurdly horrible. This latest BIA travesty falls in the latter category.

Not surprisingly, the Circuit opinion quotes liberally from the BIA’s insipid, mealy-mouthed “bureaucratic double-speak” language! To paraphrase my BIA colleague the late Judge Fred Vacca, thank goodness the 3rd Circuit finally put an end to this “pathetic attempt at appellate adjudication.”

Interesting that rather than remanding to give the BIA a chance to deny again on some newly invented specious basis, the court just reinstated the IJ opinion. There should be a message here! But, Garland and his lieutenants aren’t “getting it!”

This case illustrates deep systemic and personnel problems that Garland has failed to address. Instead of summarily dismissing the DHS’s frivolous appeal with a strong warning condemning it, these types of bad BIA decisions contribute to the unnecessary backlog and both encourage and reward frivolous actions by the DHS.

Additionally, reversing, for specious reasons, a well-done and clearly correct IJ decision granting relief, just to carry out the wishes of DHS Enforcement and political bosses, is intended to discourage respondents and their attorneys while unethically steering Immigration Judges toward a “norm of denial.”

Abused women of color from the Northern Triangle have been particular targets of the EOIR’s seriously skewed anti-immigrant adjudications. This makes the Garland DOJ’s claims to be a “champion of racial justice” ring all the more hollow and disingenuous in every context. There will be no racial justice in America without radical EOIR reform!

What ever happened to our first ever woman of color Veep? Hypothesize that one of the BIA Appellate Immigration Judges responsible for this mess had come before the Senate Judiciary Committee for confirmation. Wouldn’t you have had some questions about judicial qualifications? So, why is it OK to continue to employ them in untenured Executive Branch quasi-judicial positions where they exercise life or death power over many of the most vulnerable among us, overwhelmingly persons of color, many women, lots of them unrepresented! Kamala Harris, where are you?

It’s all part of an improper “culture of denial” at EOIR, led and “enforced” by the BIA. Garland has disgracefully failed to come to grips with the “anti-due process” that he fosters every day that the “Miller Lite Holdover BIA” remains in their appellate positions.

For heavens sake, with unnecessary “TV Adjudication Centers” coming out EOIR’s ears, reassign these purveyors of bad law and appellate injustice to those lower “courts” where they can do less cosmic damage and real, better qualified appellate judges can “keep on eye” on them!

I keep thinking (or perhaps hoping) that eventually Circuits will tire of continually redoing the BIA’s sloppy work product and then having the cases come back again, sometimes years later, denied on yet another bogus ground!

On the flip side, Judge Garland seems to have infinite “patience” with well-documented substandard performance and painfully obvious anti-immigrant, pro-DHS bias on the part of his BIA.

Wrongful denial of CAT costs lives and can improperly condemn individuals to gruesome and painful death! This is no way to run a court system! I guess it’s easier to “tolerate” lousy judicial performance when you aren’t the one being unfairly and illegally condemned to torture!

Past time for a “line change” in Falls Church!

🇺🇸Due Process Forever!

PWS

10-29-21

⚖️🗽🇺🇸👍🏼👩🏻‍⚖️ JUSTICE FOR KIDS IN COURT — ROUND TABLE ⚔️🛡 “WARRIOR QUEEN” 👸🏻 HON. SARAH BURR SPEAKS OUT FOR “FAIR DAY IN COURT FOR KIDS ACT OF 2021!” — “We cannot in good conscience allow any unaccompanied children to appear in immigration court alone.”

Hon. Sarah Burt — Hon. Sarah Burr
Retired U.S. Immigration Judge
Knightess of The Round Table
Photo Source: Immigrant Justice Corps website

https://thehill.com/opinion/judiciary/578076-why-are-children-representing-themselves-in-immigration-court

From The Hill:

As a retired immigration judge, I have watched with concern reports of the surge of unaccompanied immigrant children crossing the border into the United States. There are many reasons for concern—their housing, their health, their safety. To me, there is an additional, very real, and often overlooked question looming on the horizon: What will happen when these children, even toddlers and babies, appear alone in immigration court?

Yes, alone. While a person in immigration proceedings is entitled to be represented by a lawyer if they can afford it, there is no constitutional or even statutory right to appointed counsel in immigration proceedings. That means those who cannot afford a lawyer must appear in court alone, including children.

While I am pleased to see the Biden administration plans to provide government-funded legal representation for certain immigrant children in eight U.S. cities, this new initiative is still a far cry from the universal representation needed to support children in removal proceedings.

Imagine, if you can, a child — 2 years old, 10 years old or 17 years old — appearing before an immigration judge alone. How does a child, already intimidated and confused by the courtroom setting, understand the nature of the court proceedings and the charges against them? How can a child understand the complexities of immigration law, their burden of proof, and possible defenses against deportation? The short answer is they cannot.

. . . .

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

Read the rest of the op-ed at the above link.

The “Fair Day For Kids in Court Act of 2021” is endorsed by the “Round Table” ⚔️🛡 among many other groups in the NDPA!

Here’s a summary (courtesy of Hon. “Sir Jeffrey” S. Chase):

Senator Mazie Hirono (of [Round Table “Fighting Knightess” Judge] Dayna Beamer’s home state of Hawaii) plans to introduce the attached bill on Thursday, that would provide counsel for unaccompanied children in Immigration Court by:

Clarifying the authority of the federal government to provide or appoint counsel to noncitizens in immigration proceedings;
Requiring the appointment or provision of legal counsel to all unaccompanied children in proceedings unless they obtained counsel independently;
Mandating access to counsel for all noncitizens in CBP and ICE facilities;
Requiring that, if the government fails to provide counsel to an unaccompanied child and orders that child removed, the filing of a motion to reopen proceedings will stay removal; and
Requiring government reporting on the provision of counsel to unaccompanied children.

Here’s the text of the bill, which will be introduced by Sen. Hirono later this week:

Fair Day Text FINAL

Thanks Sarah and Jeffrey! So pleased to be part of the “support group” for this long-overdue and badly needed legislation that would do what to date Congress, the Federal Courts, and DOJ have failed to do: Enforce the Due Process Clause of the Fifth Amendment in Immigration Court!

And, of course, we should never forget the ongoing, daily work performed by NDPA Superhero 🦸🏻‍♂️ Wendy Young and Kids in Need of Defense (“KIND”) in ending the disgraceful blot on American justice of unrepresented kids in Immigration Court:

Dear Paul,

I met Maria* in immigration court. The judge sat in his robes behind the bench when he called her deportation case.

A trial attorney from the Department of Homeland Security sat at the front, prepared to argue for Maria’s removal from the U.S.. Maria was by herself without a lawyer by her side.

She was five years old.

She approached the bench, wearing her nicest clothes, clutching a doll. She sat behind the respondent’s desk, barely able to see over the microphone. The judge asked her a number of questions about why she was in the US and about her life here, none of which she could answer. Her eyes grew bigger and bigger as she sat silently, until he finally dismissed her and told her to come back at a later date. As she left the court, he asked her what the name of her doll was. In Spanish, she replied, “Baby Baby Doll.” That was the only question she could answer.

That moment haunts me. I continually wonder about the insanity of asking a five year old to stand alone and defend herself against deportation in a federal courtroom. It should never happen. Which is exactly why KIND has mobilized and trained a powerful group of pro bono attorneys to represent and work with children just like Maria who deserve legal representation in a U.S. immigration court.

This October, KIND is honoring the pro bono attorneys who have helped more than 27,000 children referred to KIND receive legal representation that often means the difference between relief and deportation and, by extension, a child’s safety or danger.

Will you make a tax-deductible donation now to support the children we work with in and out of the courtroom?

Here’s the direct impact your gift today can have for children like Maria:

$75 will support a child’s success and provide a backpack and basic school supplies for a child beginning school in the U.S.

$100 will give nourishment, and provide groceries and essentials to help keep children fed and healthy while they await the outcome of their legal case.

$250 will give a child a voice by helping pay for an interpreter so an indigenous child can tell their story in court.

$500 will allow us to make a life-saving connection and train attorney’s across the country to evaluate and work with refugee children in need of representation and critical social services.

$1500 will help us connect kids to mental health resources, including psychological evaluation and other mental health services for a child seeking asylum in the U.S..

$5000 will provide hope and safety to a vulnerable child by ensuring we have the resources we need to offer comprehensive legal representation and social service needs for however long it takes to win their case.

Paul, these are just a few ways we’ll put your gift to work, but know that your donation in ANY amount is critical to the number of children we can reach, and represent, through the amazing efforts of our pro bono attorney network.

These kids are scared, they are traumatized. They are intimidated. And without the services provided by organizations like KIND, they are all alone.

But that’s why we’re here – and that’s why I hope you’ll consider making a gift today to support this life-changing work. Your donation today will have a direct impact on the lives of refugee children who deserve to have someone in their court.

Thank you so much for your generosity today, and always.

🇺🇸Due Process Forever!

PWS

10-26-21

☠️👎🏽GARLAND EOIR’S DISTURBINGLY BAD ANALYSIS IN YET ANOTHER ASYLUM CASE “OUTED” BY FIRST CIRCUIT! — Lopez Troche v. Garland

Dan Kowalski reports for LexisNexis Immigration Community:

http://media.ca1.uscourts.gov/pdf.opinions/20-1718P-01A.pdf

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca1-on-credibility-lopez-troche-v-garland#

“Mario Rene Lopez Troche (“Lopez Troche”), a native and citizen of Honduras, petitions for review of an order of the Board of Immigration Appeals (“BIA”) that affirms the denial of his application for withholding of removal and protection under the Convention Against Torture (“CAT”). We vacate and remand. … [T]he record does not reveal the claimed inconsistency between the testimony and the reasonable fear interview as to Lopez Troche’s reporting to police that the BIA identified. The BIA cited to three portions of Lopez Troche’s testimony in support of its determination that the IJ did not clearly err in finding an inconsistency between what Lopez Troche told the asylum officer during his reasonable fear interview and how he testified as to the reporting of past abuse. But, none of those passages supports the BIA’s determination. … Nor is it possible to read either the BIA or the IJ to have inferred from Lopez Troche’s failure to report to the police the specific incidents that he discussed in his testimony that he was asserting in that testimony that did not report any incidents of abuse ever. Neither the IJ’s opinion nor the BIA’s expressly purports to premise its ruling as to adverse credibility on the basis of such inferential reasoning, see Chenery, 318 U.S. at 95, and we do not see what basis there would be for drawing that inference on this record, given that, in his reasonable fear interview, declaration, and testimony, Lopez Troche discussed a series of traumatic physical and sexual assaults that he had experienced that appears to have stretched back to a time when he was eight years old and that thus encompassed many more incidents than those addressed specifically in the portions of his testimony on which the BIA focused. As a result, we must vacate and remand the BIA’s order affirming the denial of Lopez Troche’s request for withholding of removal.”

[Hats way off to PAIR Project Legal Director Elena Noureddine and Staff Attorney Irene Freidel!]

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

Law students and attorneys of the NDPA are out there helping refugees every day. Meanwhile, over at Garland’s dysfunctional EOIR, Immigration Judges and BIA Appellate Immigration Judges strain to improperly “diddle the record” to deny relief to asylum seekers! Then, OIL defends them!

Essentially, in this case, the BIA “made it up and misrepresented the record” in an effort to deny asylum for specious reasons! Then, OIL tried to “blow it by” the Circuit!

“[T]he record does not reveal the claimed inconsistency between the testimony and the reasonable fear interview as to Lopez Troche’s reporting to police that the BIA identified.” That’s “judgespeak” for: The BIA invented non-existent “inconsistencies” to unfairly deny asylum. Then, OIL defended that fabrication and denial of due process! What does this say about Garland’s leadership at DOJ?

Whatever happened to legal and judicial ethics? Clearly they were “deep sixed” under Sessions and Barr. But, why is Garland continuing to operate DOJ as an “ethics and quality free zone?”

This is a bad system with the wrong folks in too many judicial and leadership positions and presenting an overwhelming need for robust, bold change in how decisions are made and defended in Circuit Court. So far, Garland has not made the fundamental personnel changes and “quality upgrades” necessary to bring due process and some semblance of expertise and order back to his broken Immigration Courts! Why not?

Why are the kind of individuals who should be Immigration Judges and EOIR judicial leaders, talented lawyers like Elena and Irene, still “on the outside” rather than being actively recruited and brought in to replace those unable to perform judicial, administrative, and litigation duties in a fair, expert manner, that enhances due process? Why is EOIR still operating with a “judiciary” the majority of whom were installed by the Trump regime at Justice to “dehumanize, deport, and deter” without regard for due process? Why is OIL continuing to “defend the indefensible?” Why isn’t Congress asking Garland these questions?

Government lacking in expertise, intellectual honesty, professional ethics, and accountability is “bad government.” That’s true no matter which party holds power!

🇺🇸Due Process Forever!

PWS

10-21-21

Dan Kowalski reports @ LexisNexis Immigration Community:

CA9 on Fundamental Fairness: Alcaraz-Enriquez v. Garland

5th Cir. on illegal in absentia, defective notice, blown MTR:

Dan Kowalski again:

CA4 on PSG: Escobar Gomez v. Garland (Unpub., 2-1)

It’s an entirely unnecessary, ongoing national disgrace!🤮

🇺🇸Due Process Forever!

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