"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals PAUL WICKHAM SCHMIDT and DR. ALICIA TRICHE, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
Divide and conquer is a good military strategy but a bad judicial one. Judges must consider how related facts weave to- gether into a narrative.
Chinese officials caught Cha Liang practicing his faith, so they beat, jailed, and then threatened him. When he sought asy- lum, the Board of Immigration Appeals minimized the threats and physical abuse as discrete incidents. But Liang’s twenty- minute beating and fifteen days in jail made the later threats more menacing. Because the Board should not have ignored this context, we will grant the petition and remand.
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Perhaps unwittingly, Judge Bibas’s use of a military analogy for EOIR “judging” is very, very apt! After four years of corrupt, White Nationalist, Stephen Miller inspired “leadership” and “judicial selections,” far, far too many judges and others at today’s EOIR view immigrants and their attorneys as “the enemy.” By contrast, they think of their “partners” at DHS as their “comrades in arms” against Stephen Miller’s fabricated “alien invasion” — a euphemism for “replacement theory” and other racist tropes that were seldom far below the surface of Trump-era immigration policies and actions.
It’s tempting to blame this entire mess on theTrump regime. But, sadly, manifestations of this problem were present well before 2017.
I remember an Immigration Judge Conference where, strangely, a recently appointed IJ, a former government prosecutor, was given an “instructor slot” at small group training. This Judge proceeded to repeatedly refer to the the DHS as “we” and the respondents and their lawyers as “them” as he enthusiastically described Government litigation “victories” while ignoring or downplaying Circuit Court decisions that had found serious flaws in EOIR judging and DHS legal positions.
That individual went on to a “judicial career” at EOIR that consistently demonstrated a disturbing and inappropriate inability to view those humans coming before the Immigration Court and their lawyers as anything other than “the enemy!” So, the ethical, cultural, and quality control problems at EOIR are very deep-seated.
Remember, this is a broken agency that once, but no more, was supposed to stand for “through teamwork and innovation, become the world’s best administrative tribunals guaranteeing fairness and due process for all.”
As the recent “John Gruden Episode” in the NFL shows, “corrosive culture” remains a huge problem in professional football. Similarly, EOIR’s “culture of denial with a heavily dose of racism, misogyny, and xenophobia” remains every bit as much of a problem as those plaguing the NFL. Disingenuously “minimizing threats” to asylum seekers, as in this case, is “business as usual” at Garland’s anti-immigrant, anti-asylum EOIR.
While the response of the NFL’s leadership has obviously been not fully effective, it’s still much better than Garland’s “what me worry, hear nothing, see nothing” approach to the crippling problems at his dysfunctional EOIR.
Garland’s inept approach to the ongoing due process disaster at his EOIR has been perplexing, to say the least! PHOTO: Wikipedia Commons
Gruden actually was promptly forced out when the full extent of his misconduct finally surfaced. By contrast, with overwhelming public evidence of systemic failure, Garland has catastrophically failed to replace the problematic judges and inept senior leaders at EOIR with better-qualified, progressive, practical scholar-expert judges unswervingly committed to due process, fundamental fairness, and equal justice!
Although not cited by the 3rd Circuit, the BIA and the IJ also ignored the leading BIA precedent of Matter of O-Z- & I-Z-, 22 I&N Dec. 23 (BIA 1998) (Panel: Hurwitz, Rosenberg, Schmidt) on the importance of considering harm cumulatively.
The concurring opinion by Judges Jordan and Ambro on past persecution as a “mixed question of fact and law” subject to a “two-step review process” is also well worth a read, particularly for those practicing in the 3rd Cir.
So far, defending this guy and his cruel policies is about the only thing that Judge Garland has done well at a DOJ that continues to treat “justice” for migrants of color as a joke! Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.comUnlike Miller, the “losers” under Garland’s unconscionable policies often aren’t in a position to complain — at least in this world! EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)
On Thursday, a federal appeals court allowed the continued use of the Title 42 policy, pushed initially through the previous administration by Stephen Miller, that’s used the novel coronavirus pandemic as an excuse to quickly deport asylum-seekers, including thousands of Haitians who have arrived at the southern border in search of help.
The Biden administration was set to be blocked from using the policy against families, following a federal judge’s order earlier this month. That lower court order was set to go into effect Thursday. But the policy was saved by the Biden administration, which had shockingly appealed the lower court’s decision. To be clear, the administration could have let the lower court decision stand. But it decided to protect this scientifically unsound order for continued use.
“It’s troubling to see the court grant the government’s motion to reinstate Title 42 just days after the district court ruled that its policy violates U.S. law,” Oxfam America global policy lead Noah Gottschalk told NBC News. The group is among the organizations that have led lawsuits against the policy. “We all saw the horrific images of the abuse faced by Haitian asylum-seekers subjected to Title 42, and we cannot allow people to face further harm because of this xenophobic policy.”
Department of Homeland Security Sec. Alejandro Mayorkas has claimed it is continuing Title 42 “out of a public health need.” Meanwhile, White House Press Sec. Jen Psaki has defended the policy as “a public health requirement.” That’s complete bullshit. “Vice President Mike Pence in March directed the nation’s top disease control agency to use its emergency powers to effectively seal the U.S. borders, overruling the agency’s scientists who said there was no evidence the action would slow the coronavirus,” The Associated Press (AP) reported last October.
The previous administration got its way by twisting arms. There was no science involved, only anti-immigrant and anti-asylum animus. “That was a Stephen Miller special. He was all over that,” a former Pence aide told the AP.
And, as vaccines have become readily available, the supposed rationale to keep Title 42 in place has only gotten more flimsy. If this is truly all about public health, why not rescind the policy and offer families the single-shot Johnson & Johnson vaccine? “Let me also remind the Biden administration that over 300,000 people cross the border from Mexico every day through ports of entry,” American Immigration Council Policy Counsel Aaron Reichlin-Melnick tweeted in July. “None are given COVID tests, unlike migrants who all get tested and nearly all get vaccinated.”
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“Miller Lite” – Garland’s Vision of “Justice @ Justice” for Communities of Color — Progressive human rights experts and migrants of color haven’t been welcome at Garland’s DOJ “Happy Hours” where Stephen Miller’s policies, his judicial appointments, and his dysfunctional “star chamber” immigration courts are celebrated, defended, and even “enhanced!”
Read more about this legal, moral, and political travesty perpetrated by the Biden Administration with Garland’s support at the link.
When it comes to things like defending ending the reprehensible “killer-program” known as “Remain in Mexico” or protecting the DACA program, Garland’s litigation team has fared poorly.
They also have drawn raised eyebrows, even if not yet any ethical complaints, from Article III Judges for their questionable representations and disingenuous defense of wrongfully issued BIA final orders of removal.
Perhaps, part the problem is that after four years of “anything goes” often misleading, sometimes downright dishonest, defense of the Trump/Miller White Nationalist xenophobic, often misogynistic, dehumanizing agenda, their hearts aren’t in it. The other glaring problem is the obvious lack of commitment to progressive humanitarian values, due process for all, and “cleaning house” at a broken and dysfunctional DOJ that has been shown by Garland.
Obviously, Garland’s DOJ lawyers are more at home and more successful when when arguing for intellectually dishonest and unconstitutional dehumanization (or “Dred Scottification”) of “the other,” primarily individuals of color who are the most vulnerable among us.
What a totally disgraceful legacy for a guy that was once just “one Moscow Mitch” away from the Supremes! On the other hand, it now appears that the GOP right wingers wouldn’t have had much to fear from a guy who won’t stand up for liberal American democratic values or even simple human decency! I doubt that he would have presented much threat to the far-right, anti-American agenda!
A federal appellate court Thursday temporarily granted the Biden administration’s request to continue the use of a public health order to quickly expel migrants with children who are stopped along the U.S. border.
A lower court had given the Biden administration until Thursday to limit use of the law, while immigrant and legal advocates proceeded with a lawsuit against it. The Trump administration had invoked the 1944 health statute, known as Title 42, to close the border to prevent people from entering the country, citing concerns about the spread of the coronavirus.
The case, brought in the District of Columbia by the American Civil Liberties Union and other groups, focuses on families with children, meaning the administration can continue to expel single adults under the provision.
U.S. District Judge Emmet Sullivan found earlier this month that advocates were likely to succeed with their case. In a 58-page ruling, he wrote that migrant families subjected to Title 42 “face real threats of violence and persecution” and are deprived of statutory rights to seek protection in the U.S.
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Read Andrea’s complete article at the link!
More unfair and unjustified returns of refugees to death and despair courtesy of an Administration that doesn’t care and Federal Judges unwilling to do their jobs! The dead can’t speak. But, history will judge all those involved in this disgraceful episode!
Here’s a “key quote” from Judge Susan Graber’s majority decision:
In summary, Petitioner’s Notice of Appeal was sufficiently specific to inform the BIA of two issues that she was challenging, given her status as a pro se litigant. Therefore, the BIA violated her right to due process by summarily dismissing her appeal. Whether Petitioner’s claims are meritorious is not before us; that question is for the BIA to decide in the first instance. We remand to the BIA for it to consider the merits of Petitioner’s claims.
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The BIA likes to dump on unrepresented individuals with summary dismissals because it “generates numbers” and helps fulfill “production goals” without requiring much attention or thinking. As Judge Graber noted, there is no doubt that a minimally competent BIA Appellate Judge could tell exactly what aspects of the IJ’s decision the pro se respondent was challenging. Encouraged to cut corners by their DOJ overlords, the BIA simply found it more expedient to deny without answering the respondent’s objections to the IJ’s decision.
This is just a glimpse into the daily due-process-denying operations of the BIA under Garland. Sometimes, these improper actions get “outed.” But, that would be the exception. Planning to throw 200 new judges into a broken, corner-cutting system, without addressing its obvious defects, is not a a recipe for success! And, relying on this version of the BIA to keep new or incumbent IJs “in line” or promote consistency and “best judicial practices” among what would be approximately 750 IJs nationwide is simply absurd! This is the type of “solution” that only could be proposed by someone who had never represented an individual in Immigration Court!
My friend and Round Table colleague Judge Lory D. Rosenberg sent me the following this morning:
I want to share some awful news I learned last night. Lisa Brodyaga is in hospice with very little if any time left.
Its so sad.
If any of you know Lisa and wish to communicate with her before she leaves us, send an email to her at her email address. Friends will retrieve the emails and read them to her. Her friend Thelma Garcia told me Lisa listened tonight with her eyes closed and was smiling as Thelma read them to her.
And, here’s a bit about her long and illustrious career.
NIPNLG Proudly Announces its 2019 Member Honorees
Lisa Brodyaga and Al Otro Lado
Please join NIPNLG in paying tribute to two extraordinary honorees on the frontlines fighting injustice every day.
Lisa Brodyaga
Lisa Brodyaga has represented asylum seekers and other immigrants, and even U.S. citizens, since 1978. Since 1981, she has been certified in immigration and nationality law by the Texas Board of Legal Specialization. In 1985, Lisa co-founded Refugio Del Rio Grande, a 501(c)3 refugee camp and law office on a 45-acre wilderness near Harlingen, Texas, where she still serves as a volunteer attorney. Initially, most of Lisa’s work involved asylum seekers, including arguing Guevara-Flores v. INS (5th Cir. 1986); and also lawful permanent residents, including in Diaz-Resendez v. INS (5th Cir. 1992). Lisa’s career is punctuated with victories, such as Carranza de Salinas v. Holder (5th Cir. 2012), and many others, without which, many critical pro-immigrant court decisions would not be – or would not have been – possible. Lisa lives on the premises of Refugio, nurturing her farm roots, with her beloved Boxers, a horse, a pair of white llamas, a flock of chickens, and a small, very spoiled, herd of cattle.
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Lisa argued a number of cases before the BIA during my tenure. We also frequently were on opposite sides of litigation during my tenure at the OGC of the “Legacy INS,” as well as being on the “same side” during my time in the private sector and academia.
No matter what side we were on, I always appreciated Lisa’s passion, scholarship, and willingness to take on the most difficult and important issues for her often pro bono or “low bono” clients.
Lisa certainly has been a role model for the totally dedicated NDPA attorney — saving the lives of the most vulnerable among us and aggressively working every day to improve and protect our democracy.
My deepest appreciation for “a life well lived,” Lisa! May eternal peace and mercy be with you! I will miss you.
“Supremes? What Supremes? We work for Judge Garland @ DOJ, and he’s very, very tolerant of our anti-immigrant, pro-DHS ‘culture,’ and institutionalized poor decision-making over here at ‘his EOIR!’ Our jobs are safe, and that’s all that matters! To hell with ‘the others!’ ‘Jeffie Gonzo’ and ‘Billy the Bigot’ told us to treat migrants like the ‘trespassers’ and ‘scum of the earth’ they really are! It’s not like OUR families were ever migrants!” https://www.flickr.com/photos/rasputin243/ Creative Commons License
Rodriguez v.Garland, 5th Cir., 09-27-21, published
PANEL: Higginbotham, Willett, and Duncan, Circuit Judges.
OPINION: Judge Patrick Higginbotham
KEY QUOTE:
The initial NTA did not contain the time and date of Rodriguez’s hearing. The BIA found that the NTA combined with the subsequent NOH containing the time and place of Rodriguez’s hearing “satisfied the written notice requirements of [8 U.S.C. § 1229(a)],” directly contrary to the Supreme Court’s interpretation of § 1229(a) in Niz-Chavez which made clear that subsequent notices may not cure defects in an initial notice to appear. The BIA applied a “legally erroneous interpretation[].”23
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Judge Higginbotham was appointed by President Ronald Reagan. Even conservative Article III Judges aren’t as anxious to snub the Supremes as the BIA.
After all, the BIA works for the Attorney General, not the Supremes. So, who cares whether their decisions comply with the rulings of the Article III Courts, so long as their political “handlers” at the DOJ are pleased with the pro-DHS outcome! That’s what happens when a “captive court” is encouraged to view itself as an extension of their “partners” at DHS enforcement, carrying out the political agenda of their DOJ superiors who control their paychecks and their career destiny!
Wow! It took fewer than three business days for Garland’s latest venture into obtuse anti-immigrant decision-making at the BIA, Matter of Arambula-Bravo, to hit a brick wall! In the 5th Circuit, no less! Back in the “old days” of the “Legacy INS,” it was a very bad sign when we couldn’t “sell” a position to the 5th Circuit!
Have to wonder if Judge Garland would have been so sanguine with the dissing of the Supremes by the BIA if he had actually become “Justice Garland?”
As my esteemed colleague Judge “Sir Jeffrey” Chase noted, the position adopted by the 5th Circuit in Rodriguez:
is the same argument we [the “Round Table”] made in our recent amicus brief to the Board – in a published decision, the 5th Cir. granted a PFR and vacated the Board’s decision denying a motion to rescind an in absentia order where there was no proper service due to a defective NTA under Niz-Chavez.
By failing to replace the BIA with better qualified progressive expert judges who will issue correct precedents (even when they might benefit immigrants) and require “best practices” in the now-totally-dysfunctional Immigration Courts, Garland is further building backlog by generating thousands of unnecessary remands and reopenings. How long will it take him to reach the 2 million case mark?
“Bogus dedicated dockets,” gross misuse of the discredited “Title 42” rationale to deny due process, increased use of “expedited removal,” proposals to “rubber stamp” asylum and credible fear denials, badly skewed pro-enforcement interpretations that throw the fate of hundreds of thousands of cases into the Circuits and the Supremes aren’t going to solve the problem!
Never underestimate the adverse effects of bad judging, particularly in a high volume system where incorrect precedents result in wrong decisions in hundreds of cases every day! Conversely, you can’t overestimate the positive potential of progressive expert judges who would get the results correct at the “retail level;” force some badly needed quality control, discipline, and consistency at both EOIR and DHS; and solve problems rather than creating them!
Sadly, Garland doesn’t “get it!” And that will be a continuing unmitigated disaster for our democracy and our justice system! Such a lost opportunity!
Has Alfred E. Neumann been “reborn” as Judge Merrick B. Garland? “Not my friends, relatives, or attorney buddies whose lives are being destroyed by my ‘Kangaroo Courts.’ Just ‘the others’ and their ‘scuzzy, unimportant immigration lawyers,’ so who cares, why worry about professionalism, ethics, and due process in Immigration Court?” PHOTO: Wikipedia Commons
“Abushagif contends that the BIA abused its discretion by entirely failing to address his CAT claim. On that point, he is correct. A CAT “claim is separate from . . . claims for asylum and withholding of removal and should receive separate analytical attention.” Efe v. Ashcroft, 293 F.3d 899, 906–07 (5th Cir. 2002). Moreover, the BIA must not leave asserted CAT claims unaddressed. See Eduard v. Ashcroft, 379 F.3d 182, 196 (5th Cir. 2004). The government does not dispute that Abushagif raised a CAT claim in his motion to reopen. The government avers, however, that Abushagif did not present his claim to the Board and thus failed to exhaust it. See 8 U.S.C. § 1252(d)(1). That is flatly incorrect; Abushagif raised his CAT claim several times in his briefing before the BIA. It is confounding that the government says otherwise. The government also contends that remanding the CAT claim would be “futile” because, even if the BIA had addressed it, the Board still would not have granted his motion to reopen, given its determination that Abushagif had generally failed to submit reliable evidence in support of his claims of persecution. That contention, however, cannot overcome the plain command of our caselaw: The Board must address CAT claims where they are raised. See Eduard, 379 F.3d at 196. We therefore remand for the limited purpose of the Board’s addressing Abushagif’s CAT claim.”
The government does not dispute that Abushagif raised a CAT claim in his motion to reopen. The government avers, however, that Abushagif did not present his claim to the Board and thus failed to exhaust it. See 8 U.S.C. § 1252(d)(1). That is flatly incorrect; Abushagif raised his CAT claim several times in his briefing before the BIA. It is confounding that the government says otherwise.
“Confounding,” but not surprising to any of us who follow the continuing meltdown of justice and callous indifference to the law, truth, and human lives @ Garland’s failed and failing Department of “Justice.”
The government also contends that remanding the CAT claim would be “futile” because, even if the BIA had addressed it, the Board still would not have granted his motion to reopen, given its determination that Abushagif had generally failed to submit reliable evidence in support of his claims of persecution. That contention, however, cannot overcome the plain command of our caselaw: The Board must address CAT claims where they are raised.
Basically, OIL, argues that even if they had actually addressed CAT, the BIA would still have stiffed the respondent’s claim because that’s what a “programmed to deny for any reason” BIA does. Why bother with a BIA decision when a denial is “predetermined?” Is this really the sad state of due process at Garland’s DOJ? Apparently!
Let’s put this in context. The respondent is from Libya, a country notorious for torture. Here’s an excerpt from the latest (2020) Department of State Country Report on Libya:
While the 2011 Constitutional Declaration and postrevolutionary legislation prohibit such practices, credible sources indicated personnel operating both government and extralegal prisons and detention centers tortured detainees (see section 1.g.). While judicial police controlled some facilities, the GNA continued to rely on armed groups to manage prisons and detention facilities. Furthermore, armed groups, not police, initiated arrests in many instances. An unknown number of individuals were held without judicial authorization in other facilities nominally controlled by the Ministry of Interior, Ministry of Defense, or in extralegal
Country Reports on Human Rights Practices for 2020
United States Department of State • Bureau of Democracy, Human Rights and Labor
LIBYA 7
facilities controlled by GNA-affiliated armed groups, LNA-affiliated armed groups, and other nonstate actors. Treatment varied from facility to facility and typically was worst at the time of arrest. There were reports of cruel and degrading treatment in government and extralegal facilities, including beatings, administration of electric shocks, burns, and rape. In many instances this torture was reportedly initiated to extort payments from detainees’ families.
Also, the 5th Circuit is generally considered the most conservative and pro-Government Circuit. It is a jurisdiction where the Government has to work hard and really, really screw up to lose an immigration case.
Two of the panel judges in this case are GOP appointees: Judges Engelhardt (Trump), and Smith (Reagan). The third panel member, Judge Higginson is an Obama appointee. Judge Jerry E. Smith, who wrote this opinion, is known as one of the most conservative Federal Judges in America! If these jurists see problems, you can be sure they actually exist!
One thing that unites Federal Judges across the ideological spectrum is dislike of being lied to by DOJ attorneys! Evidently, that’s no longer of concern to Judge Garland now that he is the purveyor, rather than the recipient, of misrepresentations, untruths, and sloppy, unprofessional work from DOJ attorneys!
How travesties like this, that happen at Garland’s DOJ on a daily basis, in “life or death” cases, is acceptable professional judicial performance is beyond understanding!
Additionally, how clearly misrepresenting the facts of record is ethically acceptable performance for OIL attorneys is totally beyond me!
Maybe its time for the House and Senate Judiciary Committees to call Judge Garland before them for oversight to examine his continuing mismanagement of EOIR, America’s worst, most backlogged, most blatantly unfair, court system, that has not materially improved during his tenure. They should also inquire as to why he continues to tolerate unethical performance from OIL Attorneys making material misrepresentations to Federal Courts in attempting to defend the indefensible performance of the BIA in immigration litigation. Also, why hasn’t Garland spoken out about the illegal suspension of asylum laws enacted by Congress at our borders? Human lives are at stake here!
The idea that Garland intends to “fix” this problem by throwing 200 new Immigration Judges into this broken, dysfunctional system, without first addressing any of the structural, management, competence, personnel, and institutional bias issues at EOIR is beyond absurd! “Management 101” says you fix the system by rooting out and replacing incompetent and unqualified judges, replacing incompetent managers with competent ones, and fixing the many broken operational pieces of the Immigration Court System before expanding it.
This means, at a minimum, slashing the backlog by getting hundreds of thousands of old, non-priority cases off the docket now, stopping endemic “Aimless Docket Reshuffling” at EOIR, installing a functional e-filing system, getting competent representation into the Immigration Courts, replacing the current institutionalized “worst practices” with “best practices,” and instituting real judicial training by experts from outside EOIR.
Only then, after the system has been made functional, should it be expanded, if needed. Otherwise, it’s like trying to fix defective automobile production by hiring more workers and speeding up the assembly line, thereby producing more defective vehicles without fixing that which caused the defects in the first place.
This case also shows the critical, life-saving role of pro bono counsel in Immigration Court. Without the heroic efforts ofpro bono publico counsel Alison Caditz and Jeri Leigh Miller, Mr. Abushagif would probably be hanging from a ceiling fan in Libya right now!
Garland indifferent to wrong torture decisions from BIA? Photo by David R. Badger, Creative Commons
I was pleased to see that Judge Smith cited my precedent opinion in Matter of L-O-G-, 21 I&B Dec. 413 (BIA 1996) in his opinion. See FN 1. In L-O-G-, we held that “we have been willing to reopen ‘where the new facts alleged, when coupled with the facts already of record, satisfy us that it would be worthwhile to develop the issues further at a plenary hearing on reopening.’” 21 I&N Dec. at 419 (citations omitted).
Yes, folks, there was a time long ago and far away when BIA Chairs actually functioned as appellate judges: participating in cases at both the panel and en banc level, writing decisions, and, where necessary, filing dissents, without regard to “career enhancement.” That was in addition to BIA management duties, being a senior member of EOIR’s executive team, andmany public speaking, writing, and other public information and educational functions.
While today’s BIA and many Immigration Judges routinely ignore Matter of L-O-G- and its important teaching, it remains “good law,” as found by Judge Smith. Practitioners should be citing it in every motion to reopen and insisting that EOIR start following its own precedents, even where they produce results inconsistent with the restrictionist positions urged by DHS or the “round ‘em up and move ‘em out attitudes” that still seem prevalent at Garland’s DOJ.
It’s rather ironic that Federalist Society hero Judge Jerry E. Smith understands me better than Garland’s BIA!
Garland seems uninterested in making the long overdue bold progressive reforms necessary to restore due process, consistency, humanity, and racial justice to our broken and dysfunctional Immigration Courts. That means the battle over the next four years is likely to shift to the Article III Courts and Congress to finally get this utterly disgraceful, yet fixable, system back on track! This is also what’s required to save at least some of the vulnerable human lives now being “chewed up and spit out” by Garland’s ☠️ “Deadly Clown Courts” 🤡 and their ethics-challenged OIL defenders!🤮
Obviously, THESE are the practical scholar/immigration experts who belong on the BIA:
Kit Johnson Associate Professor of Law University of Oklahoma Law SchoolProfessor Geoffrey Hoffman Immigraton Clinic Director University of Houston Law Center
The Board of Immigration Appeals has issued a decision in Matter of Arambula-Bravo, 28 I&N Dec. 388 (BIA 2021). Here is the summary:
(1) A Notice to Appear that does not specify the time and place of a respondent’s initial removal hearing does not deprive the Immigration Judge of jurisdiction over the respondent’s removal proceedings. Pereira v. Sessions, 138 S. Ct. 2105 (2018), and Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), distinguished; Matter of Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018), and Matter of Rosales Vargas and Rosales Rosales, 27 I&N Dec. 745 (BIA 2020), followed.
(2) A Notice to Appear that lacks the time and place of a respondent’s initial removal hearing constitutes a “charging document” as defined in 8 C.F.R. § 1003.13 (2021), and is sufficient to terminate a noncitizen’s grant of parole under 8 C.F.R. § 212.5(e)(2)(i) (2021).
I am hardly the only one to argue that such an NTA should deprive the court of jurisdiction. Immprof Geoffrey Hoffman (Houston), frequent contributor to this blog, submitted an amicus brief to the BIA on this case arguing that an NTA without time or place information is “defective” under Niz-Chavez and cannot be cured by the later issuance of a Notice of Hearing.
Now the waiting game for SCOTUS intervention begins again. I’m hoping for another scathing opinion by Justice Gorsuch. His Niz-Chavez decision was fire.
-KitJ
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INA section 239(a) defines a Notice to Appear, the document used to initiate a removal proceeding in Immigration Court, as including, among other statutory requirements: “G)(i) The time and place at which the proceedings will be held.” Could not be clearer!
The requirements of section 239(a) are hardly onerous. Indeed, several decades ago, the Government had developed an “interactive scheduling system” that allowed DHS to specify the exact time, place, and date of a respondent’s initial Master Calendar hearing in Immigration Court.
However, rather than expanding and improving that system, DHS and EOIR decided to cut corners to accommodate the “uber enforcement” agendas pushed by Administrations of both parties over the past two decades. Their “haste makes waste, good enough for Government work approach” led them to ignore the requirements for a proper NTA and instead issue “piecemeal notices.”
This, of course, increased the unnecessary workload for already-stressed, overwhelmed EOIR Immigration Court clerks, resulted in many more defective notices, more unnecessary bogus “failures to appear,” more improper “in absentia removal orders,” more Motions to Reopen those wrongfully issued orders, and more appeals from improper failures to grant such motions. It also sent more of these preliminary matters into the Circuit Courts for judicial review.
Basically, it’s a microcosm of how an unconstitutional, non-independent “wholly owned court system” “pretzels itself” to accommodate DHS enforcement, misconstrues the law, and attempts to legitimize “worst practices” to please its political overlords, thereby creating endless and largely avoidable case backlogs — now at an astounding 1.4 million cases!
Even worse, when the backlogs finally capture public attention and “hit the fan,” EOIR, DHS, and DOJ disingenuously attempt to shift the blame and the consequences for their failures onto the VICTIMS: respondents and their long-suffering, often pro bono, attorneys! The incompetents at EOIR then cut even more corners and issue more bad precedents misconstruing the law in an attempt to cover up their own wrongdoing and that of their political masters. The latter’s understanding of how to run an efficient, due-process oriented, fair and impartial court system could be put in a thimble with space left over!
The vicious cycle of unfairness, injustice, and incompetence at EOIR continues endlessly, toward oblivion.
As Kit cogently points out, better interpretations, ones that complied with the statute and could be tailored to achieve practical solutions were available and actually submitted to the BIA. The BIA, as usual, brushed them off in favor of trying to please DHS and avoid both the statutory language and the Supremes’ clear direction.
So, something that a properly comprised BIA, composed of true progressive immigration experts and practical scholars, could have solved in a legal and practical manner, will undoubtedly head to the Supremes for a third time. We might not know the result for years, during which the BIA’s bad interpretation will generate additional potential backlog as well as unjust removals.
“Adel Ghanem, a former lawful permanent resident of the United States, seeks to avoid removal to Yemen, from which he fled to avoid persecution on account of political opinion. He pursues three forms of relief that were denied by the Immigration Judge (IJ) and the Board of Immigration Appeals (BIA): asylum under the Immigration and Nationality Act, 8 U.S.C. § 1158(a), withholding of removal under the Act, 8 U.S.C. § 1231(b)(3), and withholding of removal under the Convention Against Torture, 8 U.S.C. § 1252, 8 C.F.R. § 1208.16(c). Ghanem was kidnapped and tortured before being convicted and sentenced to ten years’ imprisonment for political opposition to the Houthi regime. We will therefore grant the petition for review and remand to the BIA. … We begin by reviewing the agency’s determination that Ghanem was ineligible for asylum under the INA because he was not persecuted “on account of” political opinion. We perceive two errors in its analysis: First, the Board’s conclusion ignores overwhelming evidence that Ghanem was persecuted on account of political opinion. Second, it erroneously treated familial relationships as disqualifying and failed to give the proper weight to the substantial record evidence that a protected ground remains one central reason for Ghanem’s persecution. … Illustrating “gross, flagrant [and] mass violations of human rights” that he would be unable to escape, the record evidence not only fails to support but directly contradicts the BIA’s conclusions that Ghanem is not likely to be tortured with the government’s acquiescence, if returned to Yemen. 8 C.F.R. § 1208.16(c)(3)(iii).8 The denial of relief under CAT therefore cannot withstand even our most deferential review. … For the foregoing reasons, we will grant Ghanem’s petition, vacate the BIA’s order, and remand to the agency for further proceedings consistent with this opinion.”
How is the BIA’s grotesque misapplication of asylum and CAT law and intentional distortion of the record evidence acceptable adjudication from a Federal Court, even a “quasi-judicial administrative tribunal?” Lives are at stake are here! But, Garland remains indifferent to the deadly ☠️ daily injustices and stunning judicial incompetence and bias he promotes, coddles, defends, and enables at his dysfunctional EOIR!
And what is his OIL doing defending this garbage before the Circuits? Garland’s DOJ is an ethical cesspool and a slimy mess of legal incompetence! Where’s the long overdue “thorough housecleaning” of this gross abuse of taxpayer dollars and walking talking insult to the Canons of Legal and Judicial Ethics!
These aren’t just “honest legal mistakes!” No way! They are the product of an anti-asylum, anti-immigrant, anti-due process, anti-people of color “culture” which was actually encouraged and promoted at EOIR during the Trump regime and still endures!
It starts, but doesn’t end, with aBIA “packed” with a number of Trump/Miller appointees who were nationally renowned for their unsuitability to fairly adjudicate ANY asylum case, let alone to be “elevated” to the highest immigration tribunal. But, it’s not like any BIA Appellate Judge has the guts and integrity to stand up and speak out for immigrants’ rights, human rights, and constitutional due process!
It’s outrageous that the BIA as currently comprised is charged with setting precedents, maintaining consistency, and guaranteeing fairness for asylum applicants, particularly women and people of color. Of course this type of misconduct and incompetence will continue to generate huge, uncontrolled backlogs! THIS national, even international, disgusting disgrace will be Garland’s lasting legacy!
The proposed “asylum reform regulations” and all other immigration and racial justice reforms put forth by Biden will fail without a better, progressive, expert BIA totally committed to due process, fundamental fairness, and racial justice! Why hasn’t Congress demanded an accounting from Garland for his jaw-dropping mismanagement of the Immigration Courts and his failure to make obvious administrative reforms?
Demand better from Garland and the Biden Administration! This disgraceful, dysfunctional, deadly mess at EOIR is NOT OK!🤮👎🏽
Finally, Defendants argue that “[a]ny time [the government]
is enjoined by a court from effectuating statutes enacted by
representatives of its people, it suffers a form of irreparable
injury.” Defs.’ Opp’n, ECF No. 76 at 38 (quoting Maryland v.
King, 133 S. Ct. 1, 3 (2012)). But, as explained above, the
Title 42 Process is likely unlawful, and “[t]here is generally
no public interest in the perpetuation of an unlawful agency
action.” Newby, 838 F.3d at 12.
*********************************“
“There is generally no public interest in the perpetuation of an unlawful agency action.” Yup! Couldn’t have said it better myself!
Who knows if this will stand. Both the DC Circuit and the Supremes have too often been willing to allow continued Government abuse of the rights of “mere migrants,” mostly of color, because they can’t really see them as fellow human beings, entitled to due process, justice, and human dignity!
But, at least for this moment in time, it’s a victory for due process, humanity, and judicial integrity.
“Plaintiffs have sufficiently alleged that USCIS has unreasonably delayed the adjudication of their U-visa applications. Because the BFD [“Bona Fide Determination”] process was issued after Plaintiffs’ complaints were filed, Plaintiffs should be allowed to amend their complaints should they wish to assert that USCIS has unreasonably delayed its determination that their U-visa applications are “bona fide.” … We hold that the issuance of the BFD Process moots no part of this case. We hold that 5 U.S.C. § 701(a)(1), 8 U.S.C. § 1252(a)(2)(B)(ii), and 5 U.S.C. § 701(a)(2) do not bar the federal courts from reviewing claims that USCIS has unreasonably delayed placing principal petitioners on the U-visa waitlist and adjudicating prewaitlist work-authorization applications. We hold that the federal courts may compel USCIS to place principal petitioners on the U-visa waitlist when an unreasonable delay has occurred per 5 U.S.C. § 706(1). We hold that § 706(1) allows the federal courts to command USCIS to hasten an unduly delayed “bona fide” determination, which is a mandatory decision under 8 U.S.C. § 1184(p)(6) and the BFD process. We hold, however, that the federal courts cannot invoke 5 U.S.C. § 706(1) to force USCIS to speed up an unduly delayed prewaitlist work-authorization adjudication, which is a nonmandatory agency action under 8 U.S.C. § 1184(p)(6) and the BFD process. We hold that Plaintiffs have sufficiently pleaded that USCIS has unreasonably delayed the principal petitioners’ placement on the U-visa waitlist. We further hold that Plaintiffs should be permitted to amend their complaints should they wish to challenge any delayed “bona fide” determinations. We thus REVERSE the district courts’ grants of the Government’s motions to dismiss and REMAND for further proceedings.”
Just another in the continuing litany of why Mayorkas and Garland aren’t getting the job done for immigrants. They continue to: 1) mindlessly defend Trump-era screw ups and invidiously motivated actions; 2) attempt to weasel their way out of accountability for misdeeds by their agencies. This case should have been settled, plain and simple!
The only good thing about the dilatory litigation tactics employed by DHS and DOJ is that they are building up some good case law precedents for those challenging Government immigration actions and hopefully costing the DOJ attorneys’ fees that can be plowed back into public interest litigation. Actually, the DOJ should be litigating “in the public interest,” but apparently someone forgot to tell “Team Garland.”
Trump and his xenophobic, insurrectionist colleagues were not a “normal” Administration. For the Biden folks to continue to ignore that and pretend like the White Nationalist, anti-democracy actions of the Trump kakistocracy/bureaucracy were “business as usual,” will be a never-ending disaster for the Dems!
PANEL: Consuelo M. Callahan and*Paul J. Watford, Circuit Judges, and Jed S. Rakoff, District Judge.
Opinion by Judge Watford; Dissent by Judge Callahan
* The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation.
STAFF SUMMARY:
Granting Rafael Diaz-Rodriguez’s petition for review of a decision of the Board of Immigration Appeals, the panel held that child endangerment, in violation of California Penal Code § 273a(a), does not constitute “a crime of child abuse, child neglect, or child abandonment” within the meaning of 8 U.S.C. § 1227(a)(2)(E)(i).
In Martinez-Cedillo v. Sessions, 896 F.3d 979 (9th Cir. 2018), a divided panel held to the contrary, and a majority of the non-recused active judges voted to rehear the case en banc. However, after the petitioner passed away, the en banc court dismissed the appeal as moot and vacated the panel decision. The panel here observed that Martinez-Cedillo is no longer binding precedent, but explained that between its issuance and the decision to rehear the case en banc, two published opinions relied on it: Menendez v. Whitaker, 908 F.3d 467 (9th Cir. 2018), and Alvarez-Cerriteno v. Sessions, 899 F.3d 774 (9th Cir. 2018).
The panel concluded that the unusual circumstance here led it to conclude that this case falls outside the scope of the general rule that three-judge panels are bound to follow published decisions of prior panels. The panel explained that both Alvarez-Cerriteno and Menendez simply followed Martinez-Cedillo as then-binding precedent without engaging in independent analysis of the deference issue, and
** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
DIAZ-RODRIGUEZ V. GARLAND 3
both decisions were effectively insulated from en banc review on that issue. The panel explained that both decisions are irreconcilable with a subsequent decision of the court sitting en banc because their reliance on Martinez-Cedillo is in conflict with the en banc court’s decision to designate that decision as non-precedential.
Applying the categorical approach, the panel identified the elements of California Penal Code § 273a(a): causing or permitting a child “to be placed in a situation where his or her person or health is endangered,” committed with a mens rea of criminal negligence. As to the federal offense, the panel explained that Congress enacted the ground of removability at 8 U.S.C. § 1227(a)(2)(E)(i) as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) and did not define the phrase “a crime of child abuse, child neglect, or child abandonment.” In Matter of Soram, 25 I. & N. Dec. 378 (BIA 2010), however, the BIA held that the phrase encompassed child endangerment offenses committed with a mens rea of at least criminal negligence. In considering whether Soram was entitled to deference, the panel was guided by the Supreme Court’s decision in Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017), where the Court observed that the term “sexual abuse of a minor” was undefined and then looked to normal tools of statutory interpretation in concluding that the statute unambiguously forecloses the BIA’s interpretation of it.
Applying this approach, the panel concluded that deference was precluded at Chevron step one because the text of §1227(a)(2)(E)(i) unambiguously forecloses the BIA’s interpretation as encompassing negligent child endangerment offenses. First, the panel explained that contemporary legal dictionaries from the time of IIRIRA’s enactment indicate that child abuse, child neglect, and child
4 DIAZ-RODRIGUEZ V. GARLAND
abandonment were well-understood concepts with distinct meanings that do not encompass one-time negligent child endangerment offenses. Second, the panel explained that the statutory structure suggested that Congress deliberately omitted child endangerment from the list of offenses specified in § 1227(a)(2)(E)(i). Third, the panel explained that the general consensus drawn from state criminal codes confirms that the phrase does not encompass negligent child endangerment offenses. The panel noted that the fourth source consulted in Esquivel-Quintana, related federal criminal statutes, did not aid its analysis.
Because a violation of California Penal Code § 273a(a) can be committed with a mens rea of criminal negligence, the panel concluded that it is not a categorical match for “a crime of child abuse, child neglect, or child abandonment.” Accordingly, the panel concluded that Diaz-Rodriguez’s conviction under that statute did not render him removable under § 1227(a)(2)(E)(i).
Dissenting, Judge Callahan wrote that she was compelled to dissent for two reasons. First, she did not agree that the three-judge panel could disregard Menendez and Alvarez-Cerriteno. Second, Judge Callahan did not agree with the majority’s peculiar reading of the phrase as not encompassing a child endangerment offense committed with a mens rea of at least criminal negligence. Judge Callahan wrote that majority’s suggestion that § 1227(a)(2)(E)(i) is unambiguous is contrary to precedent and the unanimous opinions of the court’s sister circuits. Moreover, she wrote that the majority failed to recognize that the court’s task is limited to reviewing the agency’s interpretation for “reasonableness.” Instead, the majority proffered its own definition based primarily on selected dictionary definitions and its own research.
*****************
Who knows how this eventually will come out? But, what I can guarantee is until it is finally resolved, by the Supremes or otherwise, immigration practitioners and their clients will have a mess of inconsistency and bad decisions by EOIR on their hands.
Complicated issues involving criminal law come up all the time in EOIR “detention courts,” located in the Mayorkas/Garland “New American Gulag,” where many respondents are unrepresented or under-represented. How would an unrepresented respondent be able to prepare a “defense” like this? No way! The entire EOIR system suffers from some extreme constitutional problems that Garland has done nothing to address.
Having bad precedents like this in effect for a decade or more, almost always tilted toward DHS enforcement, results in many wrongful removals, as well as numerous remands and “redos” that help increase the astronomical 1.4 million case backlog! Having better judges on the BIA, real independent jurists with practical scholarly expertise, unafraid to interpret statutes and apply the law in favor of respondents when that is the “better view,” and to impose “best practices” on the Immigration Courts, is a necessary first step in addressing EOIR’s many legal and operational shortcomings.
It appears that Garland is disinterested in meaningful due process reforms and inserting real progressive judicial leadership into EOIR. The good news: With the vast majority of the immigration, human rights, and constitutional expertise and legal talent now in the private sector, and more talent coming out of law schools all the time, the NDPA stands a good chance of “litigating Garland’s failed EOIR to a standstill” over the next four years.
While that’s hardly the most desirable result, it would be infinitely better than the continuing due-process-denying “Clown Show” 🤡 that Garland currently runs at EOIR! Sometimes, you just have to take what the opposition gives you!
At what point will “powers that be” finally pay attention to the ongoing disaster at EOIR? When the backlog reaches 1.5 million? 2 million? 3 million? 4 million? 5 million? How many unjust and illegal removals will take place, and how many lives and futures irrevocably altered or ruined before this dysfunctional system finally reaches its “breaking point?”
“Eyore is completely distraught that Garland has eschewed installing progressive expert judging and creative thinking, instead allowing the ‘death spiral’ to continue!” “Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
“We voted to rehear this case en banc to reconsider our “single factor rule,” which we have applied in considering petitions for review from decisions by the Board of Immigration Appeals (“BIA”). The single factor rule, as we have applied it, requires us to sustain an adverse credibility finding if “one of the [agency’s] identified grounds is supported by substantial evidence.” Wang v. INS, 352 F.3d 1250, 1259 (9th Cir. 2003). On rehearing en banc, we hold that the single factor rule conflicts with the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231 (2005), and we overrule our prior precedent establishing and applying it. We remand this case to the three-judge panel to re-examine the petition for review in light of our clarification of the standard for reviewing the BIA’s adverse credibility determinations. … Given the REAL ID Act’s explicit statutory language, we join our sister circuits and hold that, in assessing an adverse credibility finding under the Act, we must look to the “totality of the circumstances[] and all relevant factors.” § 1158(b)(1)(B)(iii). There is no bright-line rule under which some number of inconsistencies requires sustaining or rejecting an adverse credibility determination—our review will always require assessing the totality of the circumstances. To the extent that our precedents employed the single factor rule or are otherwise inconsistent with this standard, we overrule those cases. We remand this case to the three-judge panel for reconsideration in light of the newly articulated standard for reviewing adverse credibility determinations.”
********************
Even with Article III Courts, including the 9th Circuit, generally “drifting right,” “good enough for Government work” has been rejected! That ought to help Garland boost the EOIR backlog!
The EOIR/DOJ policy right now appears to be “give any reason to deny,” hope that OIL can make at least one of them stick, and count on righty Circuit Judges to “swallow the whistle.” While that has certainly happened in the 5th Circuit, and to some extent in the 11th Circuit, there still appear to be enough Article IIIs out there critically reviewing EOIR’s too often patently substandard work product to make Garland’s indolent “look the other way” approach to the EOIR mess highly problematic.
Analyzing all the factors also might be inconsistent with mindless, due-process-denying three or four per day “merits quotas,” invented and imposed by Jeff “Gonzo Apocalypto” Sessions (someone with zero (0) Immigration Court experience and a well-justified lifetime reputation as a racist xenophobe — how does Matthews v. Eldridge allow a guy like that to pick and “run” judges — the Article IIIs might choose to look the other way, but most L-1 students know this is wrong and unconstitutional).
Just aimlessly listing common testimonial problems and hoping OIL will find one or more of them actually in the record is much faster (if you don’t count the impact of Circuit remands!) That it’s inconsistent with the statute, the Constitution, and, actually, BIA precedent seems to be beside the point these days. Of course, EOIR’s “assembly line jurists” also get “dinged” for remands.
Is there is anybody left at EOIR HQ today who could properly teach “totality of the circumstances” under REAL ID?
My observation from Arlington was that the number of adverse credibility findings and asylum denials went down substantially once the Fourth Circuit, and even occasionally the BIA, began enforcing “totality of the circumstances and all relevant factors” under REAL ID. As lawyers “got the picture” and began providing better independent corroborating evidence and documentation, the ability to “nit-pick” testimony, find the respondent “not credible,”and make it stand up on review diminished, as its well should have!
Of course, in my mind, REAL ID and the Fourth Circuit were just “re-enforcing and adopting” observations that members of our deposed “Gang of Four or Five” had made in numerous dissents from our BIA colleagues “undue deference” to poorly reasoned and thinly supported adverse credibility determinations, particularly in asylum cases.
More careful analysis of the record as a whole, often with the help of JLCs, became the rule at Arlington. And, after a few initial setbacks in the Fourth Circuit, ICE in Arlington generally stopped pushing for unjustified adverse credibility rulings and adopted approaches that actually complied with Fourth Circuit law.
The antiquated “contemporaneous oral decision format,” put on steroids by Sessions and Barr, is particularly ill-suited to the type of careful analysis required by the current statute, not to mention due process. And, having far too many newer Immigration Judges who have no immigration background and who have never had to represent an individual in Immigration Court is also a formula for failure, particularly when combined with inadequate training and idiotic “quotas.”
I’m not sure that the famous Rube Goldberg could have created a more convoluted,inefficient, and irrational process than exists at today’s EOIR. It simply can’t be fixed without leadership and assistance from outside experts who understand the problems (because they and their clients have “lived them”) and who aren’t wedded to all the mistakes and failed “silver bullet solutions” of the past!
The EOIR process is so “user friendly” that any unrepresented two-year-old can easily navigate it! Rube Goldberg (1883-1970) — 1930 Public Realm
By contrast with the EOIR mess, it’s amazing what changes an expert appellate body that actually takes its job and due process seriously can effect. Imagine if we had an expert BIA that made due process and treating individuals fairly “job one,” rather than operating as a “whistle stop on the deportation railroad.”
The ongoing EOIR clown show 🤡 just keeps getting exposed. But, nobody in charge seems to care! That’s a shame, 🤮 because “human lives, ⚰️ and perhaps the survival of our democracy, 🇺🇸 hang in the balance here!”
“Due Process Forever!”Hmmm, where have I herd THAT before? Thanks, Dan, for all you do for the NDPA!
The American Immigration Council, the National Immigration Alliance, and the Law Professors, all representing a number of other organizations, also filed in behalf of the “good guys, truth, justice, and the American way,” in this case. The respondents are expertly represented by my friend and legendary immigration advocate Ira J. Kurzban, Esquire, of Kurzban Kurzban Tetzeli and Pratt PA.
Ira Kurzban ESQUIRE Legendary American Immigration Lawyer
One could not imagine a group MORE in need of thorough, critical, independent Article III judicial review of its decisions than today’s dysfunctional EOIR!There, potentially fatal errors have been “institutionalized” and even “normalized” as just another “unavoidable” consequence of the anti-immigrant, “haste makes waste,” “culture” that constantly places churning out removal orders above due process, fundamental fairness, and best practices!
Ironically, doubling the number of Immigration Judges, eliminating expertise as the main qualification in judicial selections, and forcing yet more “gimmicks” down their throats has actually nearly tripled the case backlog to an astounding 1.4 million cases, without producing any quantifiable benefit for anyone!
Obviously, it’s high time for Garland to “reinvent” EOIR with progressive experts, many with private sector Immigration Court experience, as judges and leaders at both the appellate and the trial level! Who knows what wonders might result from an emphasis on quality, humanity, and getting decisions correct in the first instance? Progressives are used to creatively solving difficult problems without stepping on anyone’s rights or diminishing anyone’s humanity! Those skills are in disturbingly short supply at today’s failed and failing EOIR! And, they aren’t exactly DOJ’s “long suit,” either.
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
There was a time in the distant past when all BIA judges were not required to be members of the pro-immigration enforcement “mob!” https://www.flickr.com/photos/rasputin243/ Creative Commons License.
“Under 8 U.S.C. § 1226(c), the Government must detain noncitizens who are removable because they committed certain specified offenses or have connections with terrorism, and it must hold them without bond pending their removal proceedings. This appeal asks us to decide what process is due when such detainees contend that they are not properly included within § 1226(c) and whether noncitizens who have substantial defenses to removal on the merits may be detained under § 1226(c). Because the District Court granted relief in the form of a class-wide injunction, we must also decide whether 8 U.S.C. § 1252(f)(1) permits class-wide injunctive relief. For the reasons set forth below, we agree with the District Court that § 1226(c) is constitutional even as applied to noncitizens who have substantial defenses to removal. But for those detainees who contend that they are not properly included within § 1226(c) and are therefore entitled to a hearing pursuant to In re Joseph, 22 I. & N. Dec. 799 (BIA 1999), we hold that the Government has the burden to establish the applicability of § 1226(c) by a preponderance of the evidence and that the Government must make available a contemporaneous record of the hearing, consisting of an audio recording, a transcript, or their functional equivalent. Because we also conclude that § 1252(f)(1) does not authorize class-wide injunctions, we will reverse the District Court’s order in part, affirm in part, and remand for the entry of appropriate relief.”
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As as interesting footnote, like most of my colleagues at the Arlington Immigration Court, I always recorded bond hearings, long before this court ordered it as required by due process. One of the first things one of my colleagues told me when I arrived at Arlington was “record everything that happens in open court.” Recording protects everyone in the courtroom, including the judge!
It also helped our Judicial Law Clerks and interns “reconstruct” the bond record and understand our reasoning in the infrequent event that a “bond appeal” were filed. Otherwise, the “bond memorandum” would have to be based on the IJ’s notes and his or her recollection of what had transpired.
Talk about a defective system that should have been changed ages ago! But, that’s EOIR!And, it’s not going to improve without some major personnel changes and dynamic leadership that actually understands what happens in Immigration Court and is willing to think creatively, progressively, and change long-outdated practices and procedures, many of them in effect since EOIR was created in the early 1980s!
Here’s my favorite quote from Judge Krause’s opinion:
Having considered the standards urged by the Government and by Plaintiffs, we settle on one in between: To comport with due process, the Government must show by a preponderance of the evidence that the detainee is properly included within § 1226(c) as both a factual and a legal matter. See Addington, 441 U.S. at 423–24. It must show, in other words, that it is more likely than not both that the detainee in fact committed a relevant offense under § 1226(c) and that the offense falls within that provision as a matter of law. Cf. Joseph, 22 I. & N. Dec. at 809 (Schmidt, Chairman, dissenting) (contending that the Government must “demonstrate[] a likelihood of success on the merits of its charge” at the Joseph hearing).
Here’s a link to the full opinion, including my separate opinion, in Matter of Joseph, 22 I&N Dec. 799 (BIA 1999) (Joseph II):
Here’s the full text of my concurring/dissenting opinion (very “compact,” if I do say so myself):
CONCURRING AND DISSENTING OPINION: Paul W. Schmidt, Chairman; in which Fred W. Vacca, Gustavo D. Villageliu, Lory D. Rosenberg, and John Guendelsberger, Board Members, joined
I respectfully concur in part and dissent in part.
I join entirely in the majority’s rejection of the Immigration and Naturalization Service’s appellate arguments and in the unanimous conclusion that, on this record, the Service is substantially unlikely to prevail on the merits of the aggravated felony charge. Therefore, I agree that the respondent is not properly included in the category of aliens subject to mandatory detention for bond or custody purposes.
However, I do not share the majority’s view that the proper standard in a mandatory detention case involving a lawful permanent resident alien is that the Service is “substantially unlikely to prevail” on its charge. Matter of Joseph, 22 I&N Dec. 3398, at 10 (BIA 1999). Rather, the standard in a case such as the one before us should be whether the Service has demonstrated a likelihood of success on the merits of its charge that the respondent is removable because of an aggravated felony.
Mandatory detention of a lawful permanent resident alien is a drastic step that implicates constitutionally-protected liberty interests. Where the lawful permanent resident respondent has made a colorable showing in cus- tody proceedings that he or she is not subject to mandatory detention, the Service should be required to show a likelihood of success on the merits of its charge to continue mandatory detention. To enable the Immigration Judge to make the necessary independent determination in such a case, the Service should provide evidence of the applicable state or federal law under which the respondent was convicted and whatever proof of conviction that is available at the time of the Immigration Judge’s inquiry.
The majority’s enunciated standard of “substantially unlikely to prevail” is inappropriately deferential to the Service, the prosecutor in this matter. Requiring the Service to demonstrate a likelihood of success on the merits of its charge would not unduly burden the Service and would give more appropriate weight to the liberty interests of the lawful permanent res- ident alien. Such a standard also would provide more “genuine life to the regulation that allows for an Immigration Judge’s reexamination of this issue,” as referenced by the majority. Matter of Joseph, supra, at 10.
The Service’s failure to establish a likelihood of success on the merits would not result in the release of a lawful permanent resident who poses a threat to society. Continued custody of such an alien would still be war- ranted under the discretionary criteria for detention.
In conclusion, mandatory detention should not be authorized where the Service has failed to demonstrate a likelihood of success on the merits of its charge. Consequently, while I am in complete agreement with the decision to release this lawful permanent resident alien, and I agree fully that the Service is substantially unlikely to prevail on the merits of this aggravated felony charge, I respectfully dissent from the majority’s enunciation of “substantially unlikely to prevail” as the standard to be applied in all future cases involving mandatory detention of lawful permanent resident aliens.
“Pushback” from appellate judges actually committed to the then-EOIR vision of “guaranteeing fairness and due process for all,” was essential! Once the “Ashcroft purge” “dumbed down” the BIA and discouraged dissent and intellectual accountability, the system precipitously tanked! It got so bad that it actually provoked harsh criticism and objections from Circuit Judges across the political/ideological spectrum.
Eventually the Bush II DOJ was forced to back off a few steps from their all-out assault on immigrants’ rights. But, the damage was done, and there were no meaningful attempts to restore balance and quasi-judicial independence at EOIR thereafter. Indeed, Ashcroft’s Bush-era successors blamed the Immigration Judges for the meltdown engineered by Ashcroft, while sweeping their own role in creating “disorder in the courts” under the carpet in the best bureaucratic tradition!
EOIR continued to languish under Obama before going into a complete “death spiral” under the Trump DOJ kakistocracy.
Despite unanimous recommendations from experts that he make progressive reform and major leadership and personnel changes at EOIR one of his highest priorities, AG Garland has allowed the mess and the fatal absence of progressive, due-process-focused, expert judges and best practices at EOIR fester.
Long-deposed progressive judges willing to speak up for due process and fundamental fairness, even in the face of a “go along to get along” culture at DOJ, are still making their voices heard, even decades after they were sent packing! It’s tragic that Garland is letting the opportunity to create a long-overdue and necessary independent progressive judiciary at EOIR slip through his fingers. Progressive Dems might “dream” of transforming the Article III Judiciary; but, it’s not going to happen while Dems are running a “regressive judiciary” at the “retail level” in the one potentially powerful judiciary they do completely control.
Sadly, vulnerable individuals, many of them women, children, and people of color, will continue to suffer the brunt of Garland’s indifferent approach to judicial justice at EOIR. Beyond that, however, his failure to transform EOIR into an independent progressive court system willing to stand up for constitutional due process, equal justice, racial equity, best judicial practices, and the rule of law undermines democracy and diminishes the rights of everyone in America!
