Litigation – Page 44 – immigrationcourtside.com

😎👍🏼🥂SHEEEEEEE’S BACK! TAL KOPAN @ SF CHRON RETURNS TO THE “IMMIGRATION BEAT” WITH A POWERFUL IN-DEPTH LOOK AT HOW AMERICA’S MOST DYSFUNCTIONAL “COURT SYSTEM” PREDICTABLY SCREWED UP THE COVID-19 RESPONSE WHILE DEEPENING HUMAN MISERY INFLICTED ON THE “BACKLOGGED” — “’There isn’t a day that goes by that there isn’t mass chaos behind this veil of business as usual,’ said Ashley Tabaddor, president of the National Association of Immigration Judges.”

https://www.sfchronicle.com/politics/article/Immigration-courts-in-chaos-with-15276743.php

Immigration courts in ‘chaos,’ with coronavirus effects to last years

By Tal Kopan

WASHINGTON — Raquel and her sons fled gang threats in El Salvador, survived the weeks-long journey to the U.S., and then endured the Trump administration’s 2018 separations at the southern border.

This month, she was finally going to get her chance to convince an immigration judge in San Francisco that she should be granted permanent asylum in the U.S., ending the agony of having to prepare for her court date by reliving the danger in her native country and her weeks of detention at the border.

Thanks to the coronavirus, she will have to endure the wait for three more years.

“It’s really traumatizing, because I have to keep telling them the same thing,” Raquel said. “I thought I had gotten over everything that had happened to me … but every time I remember, I can’t help crying.”

Raquel’s case is one of hundreds of thousands in the immigration courts that are being delayed by the pandemic. The courts, run by the Justice Department, have been closed for health reasons in the same way that much of U.S. public life has been on hold. But many of those who work in the system say the Trump administration has handled the shutdown in an especially haphazard manner, increasing the stress on judges and attorneys in addition to immigrants and making it harder for the courts to bounce back.

“There isn’t a day that goes by that there isn’t mass chaos behind this veil of business as usual,” said Ashley Tabaddor, president of the National Association of Immigration Judges.

The Justice Department began postponing hearings for immigrants who are not in detention on March 18, and the delays have been extended every few weeks. Hearings are now set to resume June 15. But many courts technically remain open, including the one in San Francisco, with frequently changing statuses announced on social media and a website. It also took weeks for all judges to get laptops that would allow them to work remotely, said Tabaddor, who hears immigration cases in Los Angeles.

The scattershot communications make it difficult to prepare for if and when the hearings are held, immigrants say. And it’s worse for those who have no lawyer who can help navigate the changes. About one-third of immigrants with pending cases have no representation, according to Justice Department statistics, and missing a hearing is grounds for deportation.

The agency’s inspector general is investigating the handling of the courts during the pandemic.

The Justice Department says it is being proactive in balancing safety with immigrants’ rights. A spokeswoman said the agency is “deeply concerned” for the health of its staff and the public.

In a recent legal filing, the director of the immigration courts, James McHenry, said a “one size fits all” approach to court closures and procedures wouldn’t work, given varying situations at different locations.

With postponements happening on short notice, most immigrants fighting deportation feel they must prepare for court even if pandemic-caused delays seem likely. But doing so can force them to revisit the terrifying situations they say they came to the U.S. to escape.

None who spoke with The Chronicle said they wanted to risk their health by keeping the courts open. But they and their attorneys said they wished the administration was doing more to take immigrants’ and staffers’ needs into account.

Because the immigration courts already have a backlog of more than 1 million cases, it can take years for an asylum applicant such as Raquel to go before a judge. In the meantime, they build lives here, knowing that can be yanked away if they’re ordered deported.

Raquel and others whose hearings have been postponed won’t go first when the courts reopen — they go to the back of the line. The alternative for the immigration courts would be a logistical nightmare of rescheduling everyone else’s hearings, which are now booked years in advance.

The Trump administration ended the practice of prioritizing cases of criminal immigrants or recent arrivals, and has curtailed judges’ ability to simply close the case of a low-risk migrant less deserving of deportation, which would clear court schedules for more serious cases.

The Justice Department declined to say how many hearings have been postponed because of the pandemic. But a nonprofit statistics clearinghouse estimated that the government shutdown of 2018-19 resulted in the cancellation of 15,000 to 20,000 cases per week.

Raquel’s case is emblematic of the thousands that are now in limbo. The Chronicle has agreed not to use her real name out of her concern for her safety, in accordance with its anonymous sourcing policy.

Raquel says she came to the U.S. in 2018 because a gang in the area of El Salvador where she lived threatened her family after her two sons refused to join.

She was among the immigrant families that were forcibly separated at the border. She spent a month and a half apart from her teenage son as she was shuffled between detention centers and jails. She says she endured numerous indignities, including having to shower in front of guards and being shackled by her wrists and ankles.

“It was the most bitter experience I’ve ever had,” she said in Spanish.

After finally being reunited with her son and released, Raquel rejoined her husband and other son who had come here previously, settling in San Francisco. She was ordered to wear an ankle monitor, which again made her feel like “a prisoner.”

“I had never felt so hurt like I did in this country, which hurt me so much just for crossing a border illegally,” Raquel said. “That was the sin and the crime that we committed, and we paid a high price.”

Raquel spoke with The Chronicle before receiving word that her May hearing was canceled. She and her attorney had felt forced to prepare despite a high likelihood of postponement, just in case the Justice Department forged ahead.

San Francisco attorneys who are working with immigrants during the pandemic say it is an acute challenge. Stay-at-home orders complicate preparing for cases that could have life-and-death consequences for those who fled violence back home.

Difficulties include trying to submit 1,000-page filings from home, needing to discuss traumatic stories of domestic and sexual violence with immigrants who are sharing one-bedroom apartments with 10 other people, and navigating courts’ changing status on Twitter.

“It’s taking an already not-user-friendly system and spinning it into chaos to the extent that even savvy practitioners don’t know how to get information, let alone the applicant,” said Erin Quinn, an attorney in San Francisco with the Immigrant Legal Resource Center.

She added, “The stakes are high, and at the same time, a comment I got yesterday from a practitioner was, ‘I’m tired of trying to figure out what to do with my practice based on tweets.’”

Judges and court staffers are also frustrated. On March 22, an unprecedented partnership was formed among the unions representing Immigration and Customs Enforcement attorneys who serve as prosecutors in the courts, judges and the association for attorneys who represent immigrants. They wrote a letter to the Justice Department demanding it close all the courts, not just postpone hearings for immigrants who are not in detention. The agency later expanded the ability of attorneys to appear by telephone and for some judges to work from home.

Even now, however, the Justice Department is requiring some judges and staff to come in to court to handle cases of immigrants who are being detained — those hearings have not been canceled — or to process filings.

“It is very, very upsetting. Employees do not feel like they are, No. 1, being protected and, No. 2, you don’t feel respected and valued,” said Immigration Judge Dana Leigh Marks, president emerita of the judges’ union.

Marks and Tabaddor say it’s part of a Trump administration pattern of stripping immigration judges of their independence at the expense of fair proceedings— an example of “haste makes waste,” Marks said. The Justice Department has set performance metrics to push judges to complete more cases, and Trump’s attorneys general have issued rulings that made it more difficult for judges to prioritize their caseloads.

The Justice Department, for its part, says it is making the courts more efficient. In November, McHenry testified before Congress that his agency had “made considerable progress in restoring (the courts’) reputation as a fully functioning, efficient and impartial administrative court system fully capable of rendering timely decisions consistent with due process.”

Quinn, the San Francisco attorney, said the Justice Department should work more closely with immigrants’ lawyers like Raquel’s to prioritize cases that are ready to move forward.

“Everything this administration has done to speed up or deal with the backlog are actually actions that limit the meting out of justice in the courts, which even before this crisis have been gumming up the system further,” Quinn said. “We will see the impact of that now as we try to come out of this crisis.”

Meanwhile, for immigrants like Raquel, the wait will continue. Even with the hardship, she says coming to the U.S. was worth the risks.

“It’s about protecting my children,” she said. “I’ve always told my sons, if God let us get here, they have to take advantage of it. … In my country, someone walks down the block and they get assaulted or kidnapped and nobody ever finds them. But not here. Here you feel safe.”

San Francisco Chronicle staff writer Alexei Koseff contributed to this report.

Tal Kopan is The San Francisco Chronicle’s Washington correspondent. Email: tal.kopan@sfchronicle.com Twitter:@talkopan

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It’s great to have you back, Tal! We’ve missed you!

It’s well worth going to the link to read Tal’s full article! Also, you’ll see some great pictures from the “home chambers” of my good friend and colleague Judge Dana Leigh Marks of the San Francisco Immigration Court, a Past President of the NAIJ.

What also would be great is if the dire situation in the U.S. Immigration Courts had actually improved over the past few months. But, predictably, the “downward spiral” has only accelerated.

Tal’s article brings to life the “human trauma” inflicted not only on those poor souls whose constitutional due process rights have been “sold down the river” by this “maliciously incompetent” regime, but also the unnecessary trauma inflicted on everyone touched by this disgraceful system: private and pro bono counsel, judges, interpreters, clerical staff, government counsel, and their families all get to partake of the unnecessary pain and suffering.

While it undoubtedly would take years to restore due process, fundamental fairness, and some measure of efficiency to this dysfunctional mess, the starting points aren’t “rocket science” – they are deceptively simple. One was eloquently stated by Erin Quinn, an attorney with the Immigrant Legal Resource Center in San Francisco who “said the Justice Department should work more closely with immigrants’ lawyers like Raquel’s to prioritize cases that are ready to move forward.” That’s actually how it used to be done in places like Arlington.

As Judge Marks points out, a host of “haste makes waste” gimmicks and enforcement schemes by this Administration (and to a lesser extent by the Obama Administration) have resulted in massive “Aimless Docket Reshuffling” and total chaos as politicos in at the DOJ and bureaucrats in EOIR HQ “redesign and reshuffle” dockets to achieve political objectives and “send messages” without any meaningful input from the Immigration Judges and attorneys (on both sides) who actually do the work and understand the dynamics of a particular docket.

In particular, under a fair and unbiased application of legal standards there are thousands of well-documented meritorious asylum and cancellation of removal cases that could be handled in “short hearings.” Other individuals could be removed from the docket to pursue U and T nonimmigrant visas or “stateside processing” permanent immigration with USCIS. Still others have documentation establishing that they are productive, law-abiding tax-paying members of their communities, often with U.S. citizen family, who should be removed from the dockets through the type of sensible, mutually beneficial “prosecutorial discretion” (“PD”) programs that were beginning to show meaningful results before being arbitrarily terminated by this Administration.

This is just the “tip of the iceberg.” There are many more improvements in efficiency, without sacrificing due process, and “best practices” that could be made if this were operated as a fair and impartial court system, rather than an appendage of DHS Enforcement committed to Stephen Miller’s nativist agenda.

The other necessary piece is the one promoted by Judge Tabaddor and the NAIJ and endorsed by nearly all “non-restrictionist” experts in the field: establishing an independent Immigration Court outside of the Executive Branch. That’s not likely to happen without “regime change.”

Moreover, it’s clear from his recent actions that Billy Barr, who is currently running the Immigration Courts into the ground, actually aspires to “kneecap” the Article III Judiciary in behalf of his lord and master, Trump. Barr would be delighted if all Federal,Courts, including the Article IIIs, were functionaries of the all powerful “Unitary Executive.” Given the Supremes’ failure to stand up for immigrants’ and asylum seekers’ legal rights as they are systematically dismantled by the regime, Barr is already a ways down that road!

Tal’s article also highlights another glaring deficiency: the lack of a diverse, merit-based Immigration Judiciary committed solely to “due process with efficiency” and fair and impartial adjudications under the law, particularly the asylum laws. Experts like Erin Quinn, folks with a deep scholarly understanding of immigration and asylum laws and experience representing the individuals whose lives are caught up in this system, should be on the Immigration Bench. They are the ones with the knowledge and experience in making “hard but fair” choices and how to achieve “practical efficiency” without sacrificing due process.

Rather than actively recruiting those outstanding candidates from the private, academic, and NGO sectors with asylum experience and knowledge, so that they could interact and share their expertise and practical experiences with other judicial colleagues, the current system draws almost exclusively from the ranks of “insiders” and government prosecutors. They apparently are hired with the expectation that they will churn out orders of removals in support of DHS Enforcement without “rocking the boat.” To some extent this was also true under the Obama Administration, which also hired lopsidedly from among government attorneys.

Indeed, prior immigration experience is not even a job requirement right now. The hiring tends to favor those with high volume litigation skills, primarily gained through prosecution. That doesn’t necessarily translate into fair and scholarly judging, although it might and has in some instances.

Of course, a few do defy expectations and stand up for the legal and due process rights of respondents. But, that’s not the expectation of the politicos and bureaucrats who do the hiring. And the two-year probation period for newly hired Immigration Judges gives Administration politicos and their EOIR subordinates “leverage” on the new judges that they might not have on those who are more established in the system, particularly those who are “retirement eligible.”

Moreover, the BIA has now been “stocked” with judges with reputations for favoring enforcement and ruling against asylum seekers in an unusually high percentage of cases. The design appears to be to insure that even those who “beat the odds” and are granted asylum by an Immigration Judge get “zapped” when the DHS appeals. Even if the BIA dared not to enforce the “restrictionist party line,” the Attorney General can and does intervene in individual cases to change the result to favor DHS and then to make it a “precedent” for future cases. Could there be a clearer violation of due process and judicial ethics? I doubt it. But, the Courts of Appeals largely pretend not to see or understand the reality of what’s happening in the Immigration Courts.

Beyond that, the Immigration Judge job, intentionally in my view, has been made so unattractive for those who believe in due process for individuals and a fair application of asylum laws, that few would want to serve in the current environment. Indeed, a number of fine Immigration Judges have resigned or retired as matters of conscience because they felt unable to square “system expectations” with their oaths of office.

To state the obvious, the current version of Congress has become a feckless bystander to this ongoing human rights, constitutional, ethical, and fiscal disaster. But, the real question is whatever happened to the existing independent Article III Judiciary? They continue to remain largely above the fray and look the other way as the Constitution they are sworn to uphold is further ground into the turf every day and the screams of the abused and dehumanized (“Dred-Scottified”) emanating from this charade of a “court system” get louder and louder. Will they ever get loud enough to reach the refined ears of those ensconced in the “ivory tower” of the Article III Judiciary?

Someday! But, the impetus for the necessary changes to make Due Process, fundamental fairness, and equal justice for all a reality rather than a cruel, intellectually dishonest, and unfulfilled promise is going to have to come from outside the current broken and intentionally unfair system and those complicit in its continuing and worsening abuses of the law and humanity!

Due Process Forever! Complicit Courts Never!

PWS

05-18-20

🏴‍☠️CHILD ABUSE/“CRIMES AGAINST HUMANITY”☠️ – Scofflaw DHS Officials Scheme to Avoid Flores, Separate Kids, Put Families in New American Gulag (“NAG”) – Julia Edwards Ainsley Reports for NBC News!

Julia Ainsley — Julia Edwards Ainsley
Investigative Reporter, NBC News

https://www.nbcnews.com/politics/immigration/family-separation-back-migrants-u-s-mexican-border-say-advocates-n1208186

Julia writes:

WASHINGTON — Several immigrant rights organizations are outraged by a new choice U.S. Immigration and Customs Enforcement is presenting to migrant parents: Separate from your child or stay together in detention indefinitely.

Starting on Thursday, the groups claim, ICE began distributing a form in all three of its family detention centers that would allow parents to apply for their minor children to be released. The form, a copy of which was obtained by NBC News, states that it is in compliance with the Flores court agreement, which prohibits ICE from holding minors for more than 20 days.

The released children are placed with family members, sponsors or placed in the custody of the Department of Health and Human Services.

The Trump administration faced intense criticism for a Zero Tolerance policy in 2018 in which undocumented migrant children were separated from parents who had illegally crossed the order. The policy was implemented in May 2018 but reversed after an outcry in June.

Click here to see the form.

The current, “voluntary” concept was previously termed “binary choice,” but has never been fully implemented. Now, lawyers representing clients in ICE family detention say parents may be persuaded to separate from their children if they are worried about exposing them to COVID-19 in detention.

The timing is no coincidence, said Shayln Fluharty, director of the Dilley Pro Bono Project, which provides legal services for families in detention in Dilley, Texas. A federal judge recently told ICE it was not in compliance with the Flores agreement, and the forms, said Fluharty, are a way for ICE to show that these parents have chosen to keep their children in detention.

. . . .

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Read the rest of Julia’s article at the link.

Just another “in your face” unlawful move by DHS officials sending a strong message of contempt to the Federal Judges handling various aspects of the regime’s intentional child abuse, family separation, and punishing asylum seeking families by needless imprisonment in the New American Gulag (“NAG”).

Yes, the District Court Judges handling these matters have ordered the Government to take various forms of corrective action. But, even where the judges use forceful language, it’s largely ineffective to change illegal policies. The regime and its officials just play “hide the ball” and develop schemes and “work arounds” to violate the law and court orders in other ways. That they continue to do this over and over – a strategy known as “malicious compliance” – shows their total disrespect for the Federal Courts and that they share Trump and Miller’s belief that they are above the law.

So far, particularly in the immigration and refugee area, the scofflaws have largely prevailed. They have dismembered immigration and asylum laws with neither legislative enactments nor meaningful judicial consequences. They have publicly and arrogantly “thumbed their noses” at court orders they don’t like. Unless and until the Federal Judges back up their orders by holding Chad Wolf and other scofflaw officials in contempt – real contempt – jail time not just meaningless fines – the abuse and the open disregard for the rule of law and for the authority of Federal Judges will continue.

The law, our Constitution, and human rights will continue to be mocked. Even the best of Federal Judges will appear feckless unless and until they start treating immigration officials as the lawless criminals they actually are!

Undoubtedly, some of the children and families intentionally being abused, dehumanized, and punished by the Trump regime as Federal Courts play bystander won’t survive long enough to tell their stories. But, some will. While those officials, legislators, and judges enabling, or in some cases masterminding and encouraging, these abuses appear likely to escape “temporal” legal accountability for their actions, moral and historical accountability are a different matter altogether. Lots of folks who believe they are “operating under the radar screen” are going to look very bad when the light of history shines on the grotesque human rights, moral, and constitutional violations at our borders and in our Gulags and those who carried them out or failed to effectively halt them.

Due Process Forever. Feckless Courts Never!

PWS

05-18-20

U.S. DISTRICT JUDGE ON GULAG: “Under the circumstances, Galan-Reyes’ detention at Pulaski – where he shares dormitory-style living quarters with up to 50 other detainees – which obviously places him at risk for contracting this serious and potentially deadly illness, is tantamount to punishment.” — Galen-Reyes v. Acoff, S.D. IL

Honl. Staci M. Yandle — Honorable Staci M. Yandle
U.S. District Judge
S.D. IL

Galen-Reyes v. Acoff, 05-14-20, S.D. IL, U.S. District Judge Staci Yandle

Galan-Reyes v. Acoff

KEY QUOTE:

For the foregoing reasons, in the absence of clear and convincing evidence that his release would endanger the public or that he is a flight risk, coupled with the known risks associated with the presence of COVID-19 at Pulaski, this Court concludes that Galan-Reyes’ continued indefinite detention violates his Fifth Amendment right to due process. The government’s interests in continuing his detention must therefore yield to his liberty and safety interests.6

Disposition

IT IS HEREBY ORDERED that the Petition for writ of habeas corpus is GRANTED.

Respondents are ORDERED to IMMEDIATELY RELEASE Omar Galan-Reyes, pursuant to the following conditions:

1. Petitioner will reside at a certain residence, will provide his address and telephone contact information to Respondents, and will quarantine there for at least the first 14 days of his release;

2. If Department of Homeland Security (DHS) determines that Petitioner is an appropriate candidate for Alternatives to Detention (ATD), then Petitioner will comply with DHS instructions as to any ATD conditions;

3. Petitioner will comply with national, state, and local guidance regarding staying at home, sheltering in place, and social distancing and shall be placed on home detention;

4. The Court’s order for release from detention shall be revoked should Petitioner fail to comply with this order of release;

5. This Order does not prevent Respondents from taking Petitioner back into custody should Petitioner commit any crimes that render him a threat to public safety or otherwise violate the terms of release;
6. Petitioner will be transported from Pulaski County Detention Center to his home by identified third persons;
7. Petitioner will not violate any federal, state, or local laws; and
8. At the discretion of DHS and/or ICE, to enforce the above restrictions, Petitioner’s whereabouts will be monitored by telephonic and/or electronic and/or GPS monitoring and/or location verification system and/or an automated identification system.
The Clerk of Court is DIRECTED to close this case and enter judgment accordingly.

6 In light of the Court’s conclusion on Petitioner’s due process claim, it is not necessary to address his Administrative Procedures Act claim.

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

Many thanks to Dan Kowalski over at LexisNexis for passing this along. And congrats to NDPA members A. Ross Cunningham, Esquire, and Jake Briskman, Esquire, for their representation of the prisoner rotting in the New American Gulag (“NAG”) in this case!

This decision reads like an indictment of the entire badly failed and fundamentally unfair DHS Enforcement and Immigration Court systems as mismanaged, weaponized, and politicized by the Trump regime Politicos and their toadies:

Abuse of detention system by detaining non-dangerous individuals who are not flight risks;
Uselessness of bond determinations by Immigration Judges who are functioning like enforcement officers, not independent judicial decision-makers;
Extraordinarily poor judgment by DHS Detention officials;
Delays caused by backlogged dockets driven by failure of DHS Enforcement to exercise prioritization and reasonable prosecutorial discretion compounded by the Immigration Judges who lack the authority, and in some cases the will, to control their dockets — dockets structured by politicos for political, rather than practical or legal, reasons (see, e.g., “Aimless Docket Reshuffling” or “ADR”);
A dangerously useless BIA that fails to set reasonable national bond criteria and fails to properly and competently consider Due Process interests in bond cases;
The importance of placing the burden of proof in bond cases where it constitutionally belongs: on DHS, rather than on the individual as is done in Immigration Court;
In this case, the US District Judge had to do the careful analytical work of individual decision making that should have been done by the Immigration Court, and which the Immigration Court should have, but has failed to, require DHS to adopt;
Leaving the big question: Why have Immigration Courts at all if the meaningful work has to be done by the U.S. Courts and U.S. Magistrates?
- Why not “cut out the useless middleman” and just have U.S. Magistrate Judges under the supervision of U.S. District Judges conduct all removal and bond proceedings in accordance with the law, Due Process, and the Eighth Amendment until Congress replaces the current constitutionally flawed Immigration Courts with an independent immigration judiciary that can do the job and that functions as a “real court” rather than an arm of DHS Enforcement thinly disguised as a “court?”

Due Process Forever!

PWS

05-15-20

“GOOD ENOUGH FOR GOVERNMENT WORK?” — Any Ol’ Notice Will Do! — BIA Continues To “Fill In The Blanks” In Aid Of “Partners” @ DHS Enforcement — MATTER OF HERRERA-VASQUEZ, 27 I&N DEC. 825 (BIA 2020)

EYORE — “Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”

Matter of HERRERA-VASQUEZ, 27 I&N DEC. 825 (BIA 2020)

https://www.justice.gov/eoir/page/file/1274901/download

BIA HEADNOTE:

The absence of a checked alien classification box on a Notice to Appear (Form I-862) does not, by itself, render the notice to appear fatally deficient or otherwise preclude an Immigration Judge from exercising jurisdiction over removal proceedings, and it is therefore not a basis to terminate the proceedings of an alien who has been returned to Mexico under the Migrant Protection Protocols. Matter of J.J. Rodriguez, 27 I&N Dec. 762 (BIA 2020), followed.

PANEL: BEFORE: Board Panel: MANN, Board Member; MORRIS,* Temporary Board Member; Concurring Opinion: KELLY, Board Member.

* Immigration Judge Daniel Morris, Hartford CT Immigration Court, Temporary Board Member/Appellate Immigration Judge

OPINION BY: Judge Ana Mann

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

The lesson of this case: The DHS intentionally puts superfluous information on its form NTA so it doesn’t make any difference whether they fill it in or not. The BIA is there to “fill in the blanks” and help their DHS buddies rack up maximo removals, preferably without in person hearings because it’s faster and helps fulfill “quotas,” under the Let ‘Em Die in Mexico Program (a/k/a “jokingly” as the “Migrant ‘Protection’ Protocols” (“MPP”) — which, of course, serve to intentionally endanger and discourage, not protect, asylum seekers).

This follows Matter of J.J. Rodriguez where the BIA found that the DHS wasn’t required to put a usable mailing address for the respondent on the NTA. I can only imagine what would have happened in the Arlington Immigration Court if a respondent had given me “Fairfax County, Virginia, USA” as his one and only address! The former is actually probably a “better” address than “Known Domicile, Tijuana, Baja California, Mexico” which was used in this case. What a farce! But, of course, it’s not very funny when it’s your life, or that of a loved one or client that is going down the tubes☠️.

There actually is an old legal axiom of construing problems against the drafter of a document, particularly when the drafter is in a more powerful position than the recipient. It even has a fancy legal name: Contra proferentem. But, today’s EOIR follows a much simpler maxim: The respondent always loses, particularly in precedent decisions.

I suppose at some point the BIA will be called upon to enter an in absentia removal order in a case where the NTA is blank except for the respondent’s name. I have no doubt, however, that they will be “up to the job.”

To his credit, Judge Edward Kelly entered a brief “concurring opinion” specifically noting that the statutory or constitutional authority for the so-called MPP was not at issue. In plain terms, that means, thanks in large measure to a complicit Supremes’ majority, even if that program, certainly a illegal and unconstitutional hoax, were later found to be unconstitutional, it would be far too late for those already removed, extorted, kidnapped, maimed, tortured, sickened 🤮, or dead ⚰️ thereunder. But, of course, the BIA, like Trump himself, will take no responsibility for any of the deadly fallout of their actions.

Great way to run a government! But, it’s the “New America” under Trump. Most of those in a position to stop the abuse merely shrug their shoulders, look the other way, and plug their ears so as not to have their serenity and complicity, as well as their paychecks, bothered by the screams and fruitless pleas of the abused. Except, of course, for true sadists ☠️ like Stephen Miller and his White Nationalist cronies 🏴‍☠️ who actually “get off” on the death, ⚰️ torture, abuse, and suffering of “others” they believe to be of “inferior stock” and therefore deserving of dehumanization and death⚰️.

Meanwhile, back at the ranch, the BIA is advertising for an additional Vice Chair/Deputy Chief Appellate Judge to help insure that the deportation assembly line in Falls Church moves smoothly and that due process and fundamental fairness never get in the way of enforcement. https://www.justice.gov/legal-careers/job/deputy-chief-appellate-immigration-judge-vice-chair

Apparently, the “Tower Rumor Mill” @ EOIR HQ says that Acting Chief Immigration Judge Christopher Santoro will soon be replaced by a permanent Chief Immigration Judge hand selected from among DOJ political hacks by none other than one of the American taxpayers’ most highly paid, unelected White Nationalists, White House Advisor Stephen Miller. The name of Gene Hamilton, like Miller an uber restrictionist former sidekick of “Gonzo Apocalypto” Sessions, still kicking around the DOJ, has been bandied about. However, other parts of the “rumor mill” have expressed skepticism about whether Hamilton really wants the job. He might be able to score more “kills” from his current job, whatever it is.

Stay tuned! In the absence of a functioning Congress or a courageous Federal Judiciary, the “killing fields”⚰️⚰️⚰️⚰️⚰️👎 are just getting rolling @ EOIR. Under the Trump regime, EOIR is now on a breakneck pace to write one of the most dismal, disgusting🤮, and disturbing 😰chapters in modern American legal history involving a catastrophic failure of integrity, courage, and humanity spanning all three rapidly disintegrating branches of our flailing democracy.

Due Process Forever! Complicity Never!

PWS

05-13-20

🏴‍☠️NATION WITHOUT HEART, SOUL, OR LAWS: Emboldened By A Derelict Supremes’ Majority Unwilling To Stand For Constitutional, Legal, Or Human Rights Of Migrants, Trump Regime Continues To Misuse “Emergency” Powers To Illegally Repeal Immigration & Refugee Laws — “‘Flattening the curve’ should not be an excuse for dismantling the law,” Say Lucas Guttentag & Dr. Stefano M. Bertozzi in NYT Op-Ed! — Agreed! — But, That’s Exactly What’s Happening As The Article III Courts Dither!

Lucas Guttentag
Professor of Practice
Stanford Law

Stefano M. Bertozzi MD
American Physician, Health Economist, & Educator

https://www.nytimes.com/2020/05/11/opinion/trump-coronavirus-immigration.html?referringSource=articleShare

Guttentag & Bertozzi write in the NYT:

For more than a month, under the guise of fighting the coronavirus, the Trump administration has used the nation’s public health laws as a pretext for summarily deporting refugees and children at the border.

This new border policy runs roughshod over legal rights, distracts from meaningful measures to prevent spread of the coronavirus and undermines confidence in the Centers for Disease Control and Prevention, the nation’s top health protection agency, which delivered the directive that imposes these deportations.

The administration has weaponized an arcane provision of a quarantine law first enacted in 1893 and revised in 1944 to order the blanket deportation of asylum-seekers and unaccompanied minors at the Mexican border without any testing or finding of disease or contagion. Legal rights to hearings, appeals, asylum screening and the child-specific procedures are all ignored.

More than 20,000 people have been deported under the order, including at least 400 children in just the first few weeks, according to the administration and news reports. Though the order was justified as a short-term emergency measure, the indiscriminate deportations continue unchecked and the authorization has been extended and is subject to continued renewal.

The deportation policy was issued by the C.D.C. based on an unprecedented interpretation of the public health laws. The policy bears the unmistakable markings of a White House strategy imposed on the C.D.C. and designed to circumvent prior court rulings to achieve the administration’s political goals.

The Border Patrol is carrying out the C.D.C. directive by “expulsion” of anyone who arrives at U.S. land borders without valid documents or crosses the border illegally, not because they are contagious or sick but because they come from Mexico or Canada, regardless of their country of origin. The deportations violate the legal right to apply for asylum and ignore the special procedures for unaccompanied children.

Our immigration laws guarantee that any noncitizen “irrespective” of status, no matter how they arrive, is entitled to an asylum process. U.S. law has adopted the international obligation that refugees cannot be returned “in any manner whatsoever” to a place where they risk persecution. The courts have protected these rights again and again. When the administration tried to impose an asylum ban more than a year ago, the U.S. Court of Appeals for the Ninth Circuit blocked it, calling it an “end-run” around Congress, a decision the Supreme Court refused to overturn.

Now, with the C.D.C. directive, the administration is imposing an even more sweeping prohibition on asylum by exploiting pandemic fears, and U.S. Border and Customs Protection is labeling the policy a public health “expulsion” instead of an immigration deportation.

Despite what the administration says, the order is not part of any coherent plan to stop border travel or prevent introduction or spread of contagious people or the virus, which is already widespread in the United States. Nothing limits travel from Mexico or Canada by truck drivers, those traveling for commercial or educational purposes, and many others, including green card holders and U.S. citizens. And the restrictions that exist do not apply at all to travel if it’s by airplane.

. . . .

The administration’s order expelling refugees and children tarnishes the C.D.C., does nothing to protect public health, targets the most vulnerable, tramples their rights and cloaks the deportations as fighting the coronavirus in order to escape accountability. “Flattening the curve” should not be an excuse for dismantling the law.

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Read the full op-ed at the link.

While the authors quite legitimately “out” the CDC for its corrupt performance, the real problem here goes much higher and cuts much more broadly across our failing democratic institutions of government. A feckless Congress, under the control of Moscow Mitch and the GOP, and the “J.R. Five” on the Supremes have given the “green light” to the Trump regime’s White Nationalist assault on the rights of asylum seekers and migrants. It’s “Dred Scottification” at its worst, and it threatens the continued existence of our nation and the lives and well-being of many of our fellow Americans.

Contrary to the tone-deaf op-ed published by Charles Lane in the WashPost today, the Supremes are not “stepping up.”https://www.washingtonpost.com/opinions/how-ginsburgs-and-kagans-recent-opinions-send-a-healthy-signal-about-the-supreme-court/2020/05/11/84119b1c-93a6-11ea-9f5e-56d8239bf9ad_story.html

They are a huge part of the problem: an institution charged with protecting our legal rights, including the rights of the most vulnerable among us, supposedly immune from partisan politics, that has abdicated that duty while hiding behind a barrage of right-wing legal gobbledygook.

Why is it only the four “moderate to liberal” justices that have an obligation to cross over and help the conservatives, Charlie, my man? Where was Chief Justice Roberts when the regime carried out the “Miller White Nationalist plan” running roughshod over decades of well-established legal and constitutional rights of refugees, asylum seekers, children, and other migrants, using rationales so thin, fabricated, and totally dishonest that most high school civics students could have seen right through them. How does a bogus Immigration “Court” system run by uber partisan politicos like Jeff “Gonzo Apocalypto” Sessions and now Billy Barr come anywhere close to complying with the Due Process Clause of the Fifth Amendment?

Pretending like the Supremes aren’t a broken, politicized institution won’t help fix the problem. Even “regime change” in November won’t get the job done overnight.

The damage is deep, severe, life-tenured, and ultimately life-threatening. But, insuring that corrupt kakistocrats like Trump and Mitch won’t be in charge of future appointments to the Supremes and rest of the Federal Judiciary is an essential starting place.

A failure to vote this regime out of office in November likely spells the end of American democracy, at least as the majority of us have lived and understand it. And, even though they obviously, and arrogantly, believe themselves to be above the fray and accountability for their actions, the “J.R. Five” eventually would go down in the heap with the rest of our nation.

If nothing else, Trump has made it very clear that HE is the only “judge” he needs, wants, or will tolerate. We have only to look as far as the failed and flailing Immigration “Courts” under Billy Barr to see what the “ideal Trump judiciary” would look and act like.

This November, vote like your life depends on it. Because it does!

PWS

05-12-20

DUE PROCESS: Round Table ⚔️🛡 Files Amicus Brief in Yanez-Pena v. Barr (5th Cir.) Cert. Petition — Pereira Issue

Richard W. Mark, Esquire
Partner
Gibson Dunn
New York

Amer S. Ahmed, Esquire
Partner
Gibson Dunn
New York

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

Read the entire brief here:

Yanez-Pena Amicus Brief TO FILE

Here’s the summary from the brief :

SUMMARY OF ARGUMENT

It is an axiom of due process that a party charged to defend against a legal proceeding must receive notice of the time and place of the proceeding and an opportunity to be heard. This Court’s ruling in Pereira v. Sessions, 138 S. Ct. 2105 (2018), reflects that axiom in the context of initiating removal proceedings by “notice to appear.”

This petition presents a straightforward question of enormous practical significance that has divided the five courts of appeals to have considered the issue: Must the initial written notice served on noncitizens to commence their removal proceedings provide—in

1 All parties have consented to the filing of this brief. Amici state that this brief was not authored in whole or in part by counsel for any party, and that no person or entity other than amici or their counsel made a monetary contribution intended to fund the preparation or submission of this brief.

2 The appendix provides a complete list of signatories.

2

one document—the “time and place at which the proceedings will be held” (along with charges and other specified information) in order to satisfy the require- ments of 8 U.S.C. § 1229(a), or does the statute allow the government to cobble together the required elements of a “notice to appear” from multiple documents, issued at different times, none of which alone contain all of the statutorily required information?

Resolution of this issue will affect thousands of people in the immigration system. For noncitizens applying for cancellation of removal, service of a valid “notice to appear” triggers the so-called “stop-time” rule, which terminates the period of continuous pres- ence required for cancellation eligibility. For noncitizens ordered removed in absentia, whether that se- vere penalty is proper depends on whether the notice served on the noncitizen satisfied the requirements of § 1229(a).

This Court should grant review to resolve the accelerating circuit split over this issue. The Fifth Circuit, agreeing with the Sixth Circuit, held that a defective “notice to appear” lacking the statutorily required time-and-place information could be “cured” by a subsequent “notice of hearing” containing that information, such that the separate documents considered together become “a notice to appear,” with the stop- time rule being triggered upon later service of the “curative” notice of hearing. See Yanez-Pena v. Barr, 952 F.3d 239 (5th Cir. 2020); Garcia-Romo v. Barr, 940 F.3d 192 (6th Cir. 2019). The Third and Tenth Circuits, based on the plain language of § 1229(a) and this Court’s decision in Pereira, 138 S. Ct. at 2105, have reached the opposite conclusion. See Guadalupe v. Atty. Gen., 951 F.3d 161 (3d Cir. 2020); Banuelos v. Barr, 953 F.3d 1176 (10th Cir. 2020). A divided panel

3

of the Ninth Circuit was in accord with the Third and Tenth Circuits, before that court granted rehearing en banc. See Lopez v. Barr, 925 F.3d 396, 405 (9th Cir. 2019), vacated and reh’g en banc granted, 948 F.3d 989 (9th Cir. 2020).

This Court should bring harmony to federal law by granting certiorari, reversing the Fifth Circuit, and restoring the common-sense interpretation of § 1229(a) as requiring one document that satisfies the statute’s requirements.

I. The question presented affects many thousands of people across the country. As the government told this Court in 2018, “almost 100 percent” of putative notices to appear omit the required time-and-place in- formation. Pereira, 138 S. Ct. at 2111. Hundreds of thousands of notices to appear are served each year; a dispute about validity is embedded in every proceed- ing initiated with a notice that lacks time-and-place information. Indeed, tens of thousands of cancellation applications remain pending, each one requiring an IJ to determine whether the stop-time rule was triggered by § 1229(a) notice. Similarly, tens of thousands of in absentia removal orders are issued every year, each one dependent on whether proceedings began with the noncitizen’s being served a notice to appear that com- plies with § 1229(a).

This case involves the application of § 1229(a) in both the cancellation of removal and in absentia removal contexts, thus presenting an optimal vehicle to address the question presented. See Petition for a Writ of Certiorari (“Pet.”) at 22-24.

II. Deciding the question presented will also pro- mote uniformity in the nation’s immigration laws. Uniformity in this sphere is a foundational principle

4

of American law, with the Constitution explicitly directing Congress “[t]o establish an uniform Rule of Naturalization.” U.S. Const. art. I, § 8, cl. 4. But there can be no uniform law if basic questions affect- ing the right of an individual to remain in the country get an answer that varies among the circuits. Such a regime would result in divergent outcomes based on geography alone, not the merits of any particular noncitizen’s case.

This unfairness may be exacerbated by the Department of Homeland Security’s (“DHS”) discretion to select the venue for a removal proceeding, and thus the law that governs the case. DHS’s ability to choose the venue, coupled with its ability to transfer detainees wherever it sees fit, opens the door to unfair forum shopping for the circuit law it prefers.

III. Requiring DHS to work with the Executive Office for Immigration Review (“EOIR”) to obtain time-and-place information before serving a notice to appear—and including such information in that document, as § 1229(a) and Pereira require—is practical and will reduce administrative inefficiency and error. Doing so will also achieve the legislative purpose of the Illegal Immigration Reform and Immigration Responsibility Act (“IIRIRA”), Pub. L. 104-208, Div. C, 110 Stat. 3009-546, of which § 1229(a) was a part, by instituting a “single form of notice” to “simplify procedures for initiating removal proceedings.” H.R. Rep. 104-469(I), 1996 WL 168955 at *159.

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Many thanks to our GOOD friends Richard W. Mark and Amer S. Ahmed and their team over at the NY Office of Gibson Dunn for their extraordinary pro bono assistance in drafting our brief.

Due Process Forever!👍🏼

PWS

05-12-20

HERE’S MY ARTICLE FROM LAW360: “Justices’ Fleeting Unanimity In Free Speech Immigration Case”

https://www.law360.com/immigration/articles/1272443/justices-fleeting-unanimity-in-free-speech-immigration-case

Justices’ Fleeting Unanimity In Free Speech Immigration Case

By Paul Schmidt

Law360 (May 11, 2020, 6:09 PM EDT) —

Paul Schmidt

On May 7, the U.S. Supreme Court‘s so-called Bridgegate decision got the attention, but the decision released that day in U.S. v. Sineneng-Smith is also notable.

In a unanimous decision by Justice Ruth Bader Ginsburg, the court pummels a panel of the U.S. Court of Appeals for the Ninth Circuit for overreaching on a constitutional overbreadth issue not argued by the parties below.

Observers expecting a blockbuster resolution of the tension between the First Amendment and criminal sanctions for “inducing or encouraging” extralegal immigration undoubtedly were disappointed.

Nevertheless, I find three significant takeaways from the ruling in Sineneng-Smith.

First, an ideologically fractured court desperately seeks common ground on something relating to immigration enforcement.

Second, the judicial restraint preached by Justice Ginsburg in her opinion conflicts with the U.S. attorney general’s use of the immigration courts to advance his restrictionist policy agenda.

Third, and ironically, Justice Clarence Thomas’ concurring opinion calls not for judicial restraint, but solicits a conservative judicial assault on the overbreadth doctrine that generally protects individuals from government overreach.

Facts

Evelyn Sineneng-Smith, a California immigration lawyer, filed labor certification applications for clients to help them get U.S. green cards. She charged each client more than $6,000, netting $3.3 million.

Smith knew that particular path to a green card involving filing for labor certification and adjusting status without leaving the country had been eliminated by statute, except for those in the country on Dec. 21, 2000, who had applied for a labor certification before April 30, 2001.

Smith’s clients did not satisfy that grandfathering criteria. However, Smith apparently did not tell them that the applications they paid her to file could not lead to successful adjustments of status.

A criminal prosecution followed which included, but was not limited to, charges that Smith had unlawfully induced or encouraged her clients to reside in the U.S. in violation of law. Smith, represented by counsel, argued at trial that the criminal statute penalizing inducing or encouraging unlawful immigration did not apply to her specific situation of filing immigration applications for clients.

She also asserted that interpreting the statute to include her particular situation as a lawyer representing clients seeking immigration status would violate the right to petition and free speech clauses of the First Amendment, specifically as applied to her.

She did not claim that all applications of the criminal inducing or encouraging unlawful immigration statute were unconstitutional under the First Amendment.

A U.S. District Court for the Northern District of California rejected all of Smith’s defenses and convicted her on the inducing or encouraging charge, as well as some additional charges of filing false tax returns and mail fraud that were not contested by the time the case reached the Supreme Court.

Smith appealed her encouraging-or-inducing conviction to the Ninth Circuit.

Ninth Circuit Proceedings

On appeal, Smith advanced the same statutory and constitutional arguments, based on the specifics of her situation, that had failed at trial.

The Ninth Circuit panel basically pushed aside both Smith’s and government counsel. Instead, they appointed three amici — friends of the court — principally to argue the case. According to Justice Ginsburg, this essentially made bystanders out of counsel for the actual parties.

Even more egregiously says Justice Ginsburg, the panel reframed and restated the issues for the amici to address. Instead of the narrow issues argued by the parties on the specific facts of the case, the panel posited three new and much broader issues.

The first was “whether the statute of conviction is overbroad or likely overbroad under the First Amendment.”

Faced with a new theory of the defense suggested by the panel itself, Smith’s lawyer, who was allowed but not required to participate in the supplemental briefing by the amici, merely adopted the amici’s overbreadth argument without discussion.

The panel then overturned Smith’s conviction solely on the basis that the statute was overbroad under the First Amendment.

The solicitor general petitioned the court which took the case because it invalidated a federal statute on constitutional grounds.

The court reversed and remanded, instructing the panel to ditch the overbreadth issue and concentrate on the narrower issues relating to Smith’s specific conduct under the statute, as actually argued by the parties at trial and on appeal to the Ninth Circuit.

Analysis

Misleading “Togetherness”

The court’s unanimous rebuke of the panel below provides insight without much useful guidance. It probably could, and should, have been a two sentence, unsigned vacate and remand, referencing the court’s previous jurisprudence on the essential role of cases and controversies in Article III judging.

Notwithstanding some commentators touting the number of unanimous decisions, this court is riven by a deep ideological split between five conservative GOP-appointed justices moving sharply right and four moderate to liberal Democrat-appointed justices trying to hold the line on important individual rights in the face of government overreach.

Nowhere has this gap been more apparent than in the executive’s aggressive efforts to rewrite, and effectively annihilate, previous American immigration laws and human rights policies.

The court’s recent 5-4 decision vacating a stay in Wolf v. Cook County illustrates this. There, five conservative justices accepted the solicitor general’s invitation to interfere with litigation in the U.S. District Court for the Northern District of Illinois, involving the administration’s rewrite of the so-called public charge rules applicable to immigrants.

The majority’s failure to even explain its decision earned an unusually sharp rebuke from Justice Sonia Sotomayor. Unlike this case that involves one individual, the administration’s rule changes, green-lighted by Cook County, have been cited as deterring many individuals legally in the country from seeking medical advice in this pandemic.

So much for judicial restraint as a norm. Here, by contrast, the justices bridged the gap only by finding a common enemy in the panel below. Don’t expect this agreement to carry over into the merits of more controversial immigration issues.

Immigration Courts Don’t Follow This Standard

My colleagues, former mmigration judges Jeffrey Chase and Susan Roy, pointed me to the dissonance between the court’s admonitions here and the attorney general’s legislate-by-decision approach to the immigration courts.

Both former Attorney General Jeff Sessions and Attorney General William Barr eagerly have reached down into the immigration court system they respectively controlled to implement restrictive immigration policies by precedent decision without invitation from the actual parties to litigation.

In two of the best known instances, Sessions acted unilaterally to change established rules concerning domestic violence asylum claims for women and to eradicate nearly four decades of precedent allowing judges to administratively close low priority or dormant cases on their burgeoning dockets.

Notwithstanding their expressed concerns about uninvited judicial activism, the court has effectively overlooked the glaring operational and constitutional problems embedded in an immigration “court” system run by the chief prosecutor. Will they pay attention when future litigants raise this disconnect?

Justice Thomas’ Ironic Concurrence

Justice Thomas’ concurring opinion attacks the overbreadth doctrine and solicits future challenges to it, presumably from right-wing advocates and activist conservative judges who agree with him.

Right-wing activists like Thomas customarily harken back wistfully to the golden age of American jurisprudence when the exclusively white, male, nearly 100% Christian federal judiciary was perfectly happy to look the other way and bend the rules to favor ruling elites.

Those disfavored were often African Americans, women, children, the poor and others who weren’t part of the club. How would Justice Thomas himself have fared in the past world he longs to re-create?

Conclusion

The substantive constitutional issue unanimously ducked by the court might eventually reappear, particularly if Justice Thomas has his way. But, don’t expect repeats of the court’s manufactured harmony in more controversial aspects of the administration’s attacks on the rights and humanity of migrants, like, for example the Deferred Action for Childhood Arrivals case.

I also wonder if this court can continue ignoring the glaring constitutional deficiencies and clear biases in the current immigration court system, defects they would never accept from any Article III judges?

Paul Wickham Schmidt is an adjunct professor at Georgetown University Law Center. He is a retired U.S. immigration judge, and a former chair and judge at the U.S. Board of Immigration Appeals.

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Many thanks and much appreciation to my good friends and “Round Table” colleagues Judge Jeff Chase and Judge Sue Roy for their ideas and contributions to this article.

Due Process Forever!

PWS😎

05-12-20

HON. JEFFREY S. CHASE: 1ST CIRCUIT CORRECTS BIA ON GENDER-BASED ASYLUM DENIALS: De Pena Paniagua v. Barr – The Recurring Failure Of Scholarship By The AG & The BIA Again “Outed” By Article IIIs: So Why Do Federal Courts Continue “Deferring” To Politicized, Non-Expert, Sloppy Adjudications By Enforcement Officials Working For The Executive Branch?

JEFFREY S. CHASE | OPINIONS/ANALYSIS ON IMMIGRATION LAW

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Gender Per Se

In De Pena Paniagua v. Barr, a three-judge panel of the U.S. Court of Appeals for the First Circuit made several corrections to the Trump administration’s application of the law of asylum as it applies to victims of domestic violence. The court’s precedent decision provided validation to the longstanding views of asylum advocates that the administration has worked hard to ignore.

As background, after an 18-year legal battle, the BIA in a 2014 decision, Matter of A-R-C-G-, finally recognized that the particular social group of married Guatemalan women unable to leave their relationship warranted asylum where its members are targeted for persecution due to their group characteristics.

In 2018, then-Attorney General Jeff Sessions vacated A-R-C-G-, claiming that it lacked the rigorous legal analysis expected of such a decision. Sessions stated that while his new decision did not bar all such claimants from asylum, he believed few victims of domestic violence would manage to qualify. In particular, Sessions decided that “women unable to leave their domestic relationship” could not form the legitimate particular social group needed under the asylum laws, on the ground that such groups cannot be defined even in part by the persecution the group fears. In support of this view, Sessions concluded that the asylum-seeker’s inability to leave her relationship in the case in question was due to persecution, although he provided no insight as to what facts supported his belief.

Many similar cases were pending when Sessions issued his fateful decision. But instead of remanding all pending cases to allow the opportunity to respond to the sudden change in the law, the BIA instead began denying those cases on the grounds that Sessions had rejected the concept, without bothering to actually analyze the specific facts of each case to see if they still merited asylum under the law.

In De Pena Paniagua, the First Circuit called shenanigans. It began by noting that nothing in Sessions’ decision created a categorical rule precluding any and all applicants from succeeding on asylum claims as members of the group defined as women unable to leave their relationships. The BIA had thus erred in categorically denying such a claim.

The court next turned to Sessions’ error in concluding that the inability to leave a relationship necessarily results from persecution, calling Sessions’ statement to the contrary “arbitrary and unexamined fiat.” But the court continued that even if persecution was the cause, the threatened abuse that precludes someone from leaving a relationship “may not always be the same…as the physical abuse visited upon the woman within the relationship.” Finally, the court held that even if the harm was the same, there is no reason such abuse can’t do “double-duty, both helping define the group and providing the basis for a finding of persecution.”

It bears noting that in a 2007 precedent decision, Matter of A-M-E- & J-G-U-, the BIA had only held that a particular social group cannot be defined “exclusively by the fact that its members have been subjected to harm.” And the group in De Pena Paniagua (and in A-B- and A-R-C-G-, for that matter) was not exclusively defined by the inability to leave, but also by its members’ gender, nationality, and domestic relationship status. Of course, the inability to leave a relationship can be due to social, religious, economic, or other factors having nothing to do with persecution. But even if the inability to leave is interpreted as resulting from persecution, the fact that such harm would only partially define the group would not invalidate it under A-M-E- & J-G-U- (which borrowed the “exclusively defined” language from particular social group guidelines issued by UNHCR in 2002, which the Board had cited in an earlier decision).

In a 2014 case, Matter of M-E-V-G–, DHS had argued for a requirement that a particular social group “must exist independently of the fact of persecution,” a stricter requirement that would seemingly forbid a group from being even partially defined by persecution. Strangely, the BIA responded to DHS’s argument in a footnote, claiming that DHS’s proposal “is well established in our prior precedents,” a statement that was clearly untrue. And in support of its claim, the BIA cited to Matter of A-M-E- & J-G-U-, which as discussed only precludes groups defined exclusively by persecution.

In his decision in A-B-, Sessions relied in part on the footnote in M-E-V-G- mischaracterizing prior case law to support his claim that a particular social group must exist independently of the harm asserted, thus perpetuating the Board’s prior falsehood. As in fact no prior BIA precedent had ever held that a particular social group cannot partially be defined by persecution, the First Circuit was correct to call out the unsupported legal conclusion. As merely looking up the citation in the BIA’s footnote would have revealed the error, one could argue that Sessions’ decision lacked the rigorous legal analysis expected of such a decision.

In remanding the record back to the BIA, the First Circuit also held out the possibility of considering a more concise group defined by an asylum applicant’s gender per se. This group was suggested in the amicus brief filed in the case by Harvard Law School’s Immigration and Refugee Clinical Program. While leaving it to the BIA to decide whether gender alone may constitute a cognizable particular social group for asylum purposes, the court provided very strong reasons why it should. The BIA’s recognition of gender per se would constitute a historical correction to U.S. asylum law, putting it in line with long recognized international standards. The same 2002 UNHCR Guidelines recognized gender as falling “properly within the ambit of the social group category, with women being a clear example of a social subset defined by innate and immutable characteristics, and who are frequently treated differently to men.”

Attorneys Jonathan Ng and Robert F. Ley of the Law Offices of Johanna Herrero represented the petitioner. Our Round Table of Former Immigration Judges is proud to have been among the distinguished amici filing briefs in the case, which included the Center for Gender and Refugee Studies, the Harvard Immigration and Refugee Clinical Program, a distinguished group of immigration law professors, and a group of faith-based organizations. Our heartfelt thanks to attorneys Richard W. Mark, Amer S. Ahmed, Indraneel Sur, Timothy Sun, Grace E. Hart, and Chris Jones of the law firm of Gibson Dunn for their outstanding efforts on our brief.

Copyright 2020 Jeffrey S. Chase. All rights reserved.

Republished with permission.

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

The biased, substandard performance and deficient scholarship of both the Attorney General and the BIA is matter of public record. The AG is not a qualified quasi-judicial official; he’s a prosecutor, with vengeance, who harbors a very clear enforcement bias against migrants. The BIA is structured to facially look like an expert body of quasi-judicial adjudicators. But, the frequent mistakes in their decisions and the clear bias in their hiring and supervision by the Attorney General expose the unhappy truth: they are nothing of the sort. So, what’s the excuse for the Article IIIs “deferring” to decisions on questions of law from these unqualified enforcement officials masquerading, not very convincingly, as “fair and impartial adjudicators?”

Looks like “judicial task avoidance” and “abdication of duty” to me!

Article III Judges are paid to determine what the law is (and not much else). They should do their jobs rather than hiding beyond the “doctrine of false deference.”

Here’s my previously posted “take” on De Pena Paniagua: https://immigrationcourtside.com/2020/04/24/due-process-gender-based-asylum-wins-1st-cir-slams-bia-sessionss-matter-of-a-b-atrocity-remands-for-competent-adjudication-of-gender-based-asylum-claim-de-pena-paniagua-v-ba/

Due Process Forever!

PWS

05-11-20

Suzanne Monyak @ Law360: FEDERAL COURTS RECOGNIZE THAT BILLY BARR’S BIA IS A FRAUD! — So Why Do They Let The Unconstitutional Abuse Of Persons Seeking Justice Continue Under Their Noses?

https://www.law360.com/immigration/articles/1271825/immigration-board-picks-under-trump-to-set-lasting-policy

Suzanne writes in Law360:

U.S. Circuit Judge Frank H. Easterbrook didn’t mince words earlier this year when sharing his thoughts on a recent decision by the immigration courts’ appellate board: “We have never before encountered defiance of a remand order, and we hope never to see it again.”

The Seventh Circuit judge, a Reagan-appointee, said the board had ignored the court’s directions to grant protection to an immigrant fighting deportation, instead ruling against the immigrant again. The rebuke wasn’t the first time the Board of Immigration Appeals has been reprimanded by the federal judiciary for seemingly prejudiced decisions under the Trump administration.

Just a month earlier, a judge on the Third Circuit tackling an appeal from the BIA wrote in a concurring opinion that it didn’t appear the board “was acting as anything other than an agency focused on ensuring [an immigrant’s] removal rather than as the neutral and fair tribunal it is expected to be.”

“That criticism is harsh and I do not make it lightly,” U.S. Circuit Judge Theodore McKee wrote.

While President Donald Trump’s judicial nominees and U.S. Supreme Court picks grab headlines for rtheir potential to shape the judiciary for years to come, the administration is staffing the lesser known BIA with former immigration judges who have high asylum-denial rates and individuals with backgrounds in law enforcement. Some of the picks have prompted advocates for immigrants and lawmakers to claim the hiring process is too politicized.

Documents newly obtained through the Freedom of Information Act reveal that the Trump administration has aimed to fast-track the hiring process while giving the director of U.S. Department of Justice‘s Executive Office for Immigration Review, James McHenry, and the U.S. attorney general more say in who gets the nod.

Unlike the federal and appellate courts, the BIA, an administrative appellate board that hears appeals from immigration trial courts, is not independent but rather is housed with the EOIR.

Yet the board can issue precedential decisions that shape immigration policy — and the lives of immigrants facing deportation — well into the future.

“That the reasonably ordinary citizen has not heard of the BIA does not take away from the fact that it is the most important agency establishing immigration jurisprudence in the country, and when you politicize that, you’re obviously politicizing immigration jurisprudence,” said Muzaffar Chishti, head of the nonpartisan Migration Policy Institute’s New York office.

A spokesperson for EOIR told Law360 that the office sped up the hiring process as part of “commonsense changes” and in response to criticism from Congress.

She also said that EOIR “does not choose board members based on prohibited criteria such as race or politics, and it does not discriminate against applicants based on any prohibited characteristics,” and that “all board members are selected through an open, competitive, merit-based process.”

During the most recent hiring cycle, every panelist evaluating candidates was a career employee, not a political appointee, according to the spokesperson.

“Individuals who assert that such changes make the hiring process less neutral are either ignorant or mendacious,” the spokesperson said.

High Rates of Asylum Denials

Since August, the Trump administration has installed nine of the 19 current permanent members of the BIA, and most of the newcomers have asylum-denial rates above 80% and backgrounds in law enforcement or the military.

All but one of the nine were previously immigration judges, and according to data collected by Syracuse University’s Transactional Records Access Clearinghouse, the average asylum-denial rate among those eight judges was just over 92%. The denial rate for each of those eight judges ranged from 83.5% to 96.8%.

The average asylum-denial rate for immigration courts nationally is 63.1%, according to TRAC.

Asylum-denial rates aren’t perfect metrics; controlling asylum law varies by circuit, and the viability of asylum claims can vary based on location. New York’s immigration courts for instance, tend to see more asylum claims from Chinese citizens fleeing political oppression, which are more frequently successful, while courts near detention centers may see harder-to-win claims from longtime U.S. residents with less access to counsel.

However, Jeffrey Chase, a New York City immigration lawyer and former immigration judge, told Law360 that no one deciding cases fairly could have a 90% asylum denial rate.

“You’re looking to deny cases at that point,” he said.

The one recent Trump administration BIA hire who wasn’t previously an immigration judge had been a trial attorney at the Justice Department, while many of the other former judges had prior experience at the U.S. Department of Homeland Security or its predecessor agency.

One, V. Stuart Couch, was previously a senior prosecutor for detainees held at Guantanamo Bay, Cuba.

“There’s overall just a lack of diversity on the immigration judge bench, which is deeply concerning,” said Laura Lynch, senior policy counsel at the American Immigration Lawyers Association. “I think the mark of justice is the idea that decision makers come from a diverse background.”

A hire to the BIA announced earlier this month, Philip J. Montante Jr., has come under fire not only for a sky-high asylum-denial rate — 96.3% — but for a history of ethics complaints.

In 2014, the DOJ’s Office of Professional Responsibility concluded that Judge Montante’s handling of an immigration case was “inappropriate” after an attorney accused him of showing bias when deciding a client’s case.

In March, not long before his promotion to the BIA was announced, the New York Civil Liberties Union accused Judge Montante in a proposed class action in federal court of denying detained immigrants’ bond requests nearly universally.

According to the advocacy organization, Judge Montante rejected 95% of bond requests between March 2019 and February 2020, bringing him within the top five lowest bond grant rates among the more than 200 immigration judges nationwide.

. . . .

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

Read the rest of Suzanne’s excellent article, with more quotes from my fellow members of the NDPA, Judge Jeffrey S. Chase and Laura Lynch, at the above link. I have been told that this article is “outside” the Law360 “paywall,” so you should be able to read it even if you don’t have a subscription.

I find the Article III Courts’ recognition of the Due Process travesty going on in individual cases, while they ignore the systemic unfairness that makes a mockery out of the Due Process Clause of our Constitution, the rule of law, our entire justice system, and humanity itself, perhaps the most disturbing institutional failure under the Trump regime. While Article III Judges are “shocked and offended” by contemptuous actions directed at them in particular cases, they remain willfully “tone deaf” to the reality of our dysfunctional and biased Immigration Courts and their impact on “real human lives.” ☠️

This is how individuals seeking justice and the courageous lawyers representing them, many serving at minimal or no compensation to inject a modicum of integrity into our system, are treated every day. Not every wronged individual has the ability to reach the Article IIIs.

And, given the Article IIIs failure to take the courageous, systemic steps necessary to stop abuses of migrants, the Trump regime has “taken it to a new level” by coming up with various illegal schemes and gimmicks to keep individuals seeking asylum from even getting a hearing in Immigration Court. Due Process? Fundamental Fairness? Rule of Law? No way!

Yet, this unfolds before us daily as the Article IIIs basically “twiddle their collective thumbs” 👎🏻 and “nibble around the edges” of a monumental Constitutional disaster and blot on the humanity and integrity of our nation and our own souls. The complicity starts with the Supremes who have “passed” on a number of critical opportunities to “just say no” to blatant violations of the Fifth Amendment, the Immigration and Nationality Act, the Refugee Act of 1980, international human rights conventions, and misuse and clear abuse of “emergency authority” to achieve a White Nationalist, racist agenda.

In other words, the Supremes’ majority is knowingly and intentionally encouraging the regime’s program of “Dred Scottification” — dehumanization or “de-personification” before the law — of “the other.” This disgusting and fundamentally un-American “resurrection and enabling” of a “21st Century Jim Crow Regime” might be “in vogue” with the “J.R. Five” and their right-wing compatriots right now. But, they are squarely on the “wrong side of history.” Eventually, the “truth will out,” and they will be judged accordingly!👎🏻

That’s why I say: “Constantly Confront Complicit Courts 4 Change.”

Due Process Forever!

PWS

05-11-20

☠️INSIDE THE GULG: Left To Die ⚰️ By DHS & Their EOIR Patsies, He’s Saved By The NDPA 🎖 & A U.S. District Judge 🧑🏽‍⚖️ — Failed Immigration “Court” 🤡 System Trashes Due Process🗑, Abandons Humanity🤮!

https://www.latimes.com/opinion/story/2020-05-08/immigration-detention-coronavirus-release

Former GULG prisoner Nicholas Morales writes in the LA Times:

I consider myself an American. I came to the United States from Mexico when I was a teenager. I’m now 37 years old. My wife and son are U.S. citizens. For years, I ran my own mechanic shop in New Jersey. I have paid taxes and nearly all my family members live in and around New Jersey, including my brothers, mother, cousins, nephews and nieces. This is the only home I know.

My life shattered on Nov. 21, 2019, when immigration officers picked me up right after I had dropped off my 5-year-old son at school. Although I had been living in the U.S. for almost 20 years, I had not managed to get the right paperwork to be here. The immigration officers took me to the Elizabeth Detention Center — a prison-like structure run by the private corporation CoreCivic. I didn’t have a chance to say goodbye to my son or my wife.

I spent five months at the Elizabeth Detention Center. As the coronavirus pandemic hit our nation and New Jersey became an epicenter, I grew increasingly worried because neither I nor hundreds of immigration detainees had any way to protect ourselves from getting sick.

I first heard rumors of COVID-19 in February. I heard it was a highly contagious illness, that it was worse than the flu, and that it was killing many people. The detention center personnel told us nothing. An Immigration and Customs Enforcement supervisor told us not to believe the news, that the danger of the virus was exaggerated. But by mid-March, we started hearing that someone in the medical unit was showing symptoms.

The Elizabeth Detention Center has capacity for just over 300 people. At nearly all times, I was packed into a large room with other immigrants. Our beds were close together, with only two to three feet between them. We shared toilets, showers, sinks, communal surfaces and breathing air. We did not have hand sanitizer or masks. We could not disinfect our shared surfaces. We could not maintain any meaningful distance among us, let alone six feet of distance. We were never permitted outside; there is no meaningful outdoor space.

As the days passed, we grew increasingly anxious about COVID-19, especially those of us who had health issues or were older. I have bad asthma and I wasn’t alone in wanting to get out. Everyone wanted out. I didn’t have a lawyer, but I was in regular contact with pro bono attorneys who wanted to help me.

Then, on March 13, the detention center halted all visitations, including by attorneys. On March 19, an ICE employee at the facility tested positive for the virus. Still, the facility staff refused to communicate with us about the pandemic, their plans to keep us safe, or whether we might be released. We still did not have access to hand sanitizer or masks to protect ourselves. The facility’s supervisors told us that we couldn’t have any hand sanitizer. The dormitories were still packed with approximately 40 people per unit.

One day in March, I watched a detainee collapse. He was taken away. I do not know if he had the virus. In mid-March, I was diagnosed with bronchitis. I could hear rattling noises in my chest and could not seem to get enough air.

My fellow detainees and I worried we were being left to die. Some of us, in desperation, decided to go on a hunger strike on March 20. The guards then put me in isolation to punish me. While in the box, I felt some relief to be away from the masses.

My breathing continued to worsen. I finally ate food again on March 25, hoping that would improve my condition. On March 31, a pro bono lawyer made an emergency request for my release, which immigration officials denied even though I had such trouble breathing that I needed treatment with an albuterol machine. On April 3, an immigration judge denied my request for release on bond.

Every way I turned seemed to be another dead end. The guards commented disapprovingly when they heard I had been talking to the media about our dire predicament. No help came for us.

I had one last hope for release. I had been included in a group habeas petition filed before the federal district court in New Jersey. Thankfully, I was let out on April 20 because a federal judge determined that COVID-19 posed a particularly serious health risk to me and four others and ordered our immediate release.

I have since returned to my family and isolated myself for 14 days. I lost my mechanic shop while I was in detention because I wasn’t able to pay rent, but I am grateful to be released. I’m now in the process of appealing my deportation order.

. . . .

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

Read the rest of this first-hand account at the link.

Many, many thanks to the pro bono attorneys from the “New Due Process Army” (“NDPA”) who stepped in to save Nicholas’s life snd the lives of many others abandoned in the Gulag. You are the real “warriors” and heroes of our age!🏅🥇😇 Hats off!🎩

It’s clear from accounts like this across the country that the only “real” bond hearings for Gulag inmates that comply with Due Process take place before U.S. District Judges or the U.S. Magistrate Judges who work for them.

So what’s the purpose of a bogus “Court System” run by Sessions and now Billy Barr to function as a subservient branch of DHS Enforcement? None, obviously!

But, it’s worse than that. Because of the outward trappings of a judiciary, the Immigration “Courts” put a “false veneer of justice” on an inherently tainted and unfair process. This wastes time, unnecessarily prolongs detention, squanders public funds, and sometimes leads Article III Judges who are unwilling or unable to understand the process to give “undeserved deference” to the decisions of these kangaroo 🦘courts.

An independent Article I Immigration Court could provide the expertise and efficiency necessary for fair impartial adjudications that comply with due process and develop “best practices.” This, in turn, would relieve the Article III Courts of the burden of having to constantly intervene to correct basic errors in legal analysis, judgment, and process inevitably caused by the improper political objectives driving EOIR’s dysfunction.

Going on five decades in the law has shown me that problems are best corrected by getting things right at the earliest point in the system. That’s clearly not happening with today’s inept, inefficient, and intentionally unjust, politicized, and weaponized Immigration “Courts.”

Until Congress and/or the Article IIIs do their jobs and put an end to this deadly nonsense, it will continue to endanger lives☠️⚰️, burden the justice system⚓️⚖️, and waste public funds 🔥💰.

Due Process Forever! Clown Courts 🤡, Never!

PWS

05-08-20

THE BAN ON STIMULUS PAYMENTS TO US CITIZENS WITH UNDOCUMENTED FAMILY MEMBERS IS STUPID, CRUEL, & UNFAIR — Now, Its Constitutionality Is Being Challenged In Federal Court, Reports Nicole Narea @ Vox News!

Nicole Narea
Immigration Reporter
Vox.com

https://apple.news/AgDswic0ERvCIlHoCI2oyaA

Nicole writes:

Immigrant advocates are arguing in court that American citizens who are married to unauthorized immigrants should still be eligible for stimulus checks along with their children.

The $2 trillion Coronavirus Aid, Relief, and Economic Security Act, or CARES Act, gives most taxpayers up to $1,200 and $500 for each of their children under the age of 17. But even if they pay taxes, unauthorized immigrants are not eligible for the stimulus checks, which the government started sending out in April. Neither is anyone else in their household, including their spouses and children, even if their spouses and children are US citizens.

Advocates from Georgetown Law and Villanova Law filed a class action lawsuit in Maryland federal court on Wednesday challenging the CARES Act on behalf of seven US citizen children of unauthorized immigrant taxpayers. They argued that it unfairly discriminates against these children based on their parents’ immigration status and denies them equal protection under the law in violation of the US Constitution’s due process clause.

Immigrant advocates at the Mexican American Legal Defense and Education Fund also filed a lawsuit last week arguing that the CARES Act is unconstitutional because it “discriminates against mixed-status couples.”

“The refusal to distribute this benefit to US citizen children undermines the CARES Act’s goals of providing assistance to Americans in need, frustrates the Act’s efforts to jumpstart the economy, and punishes citizen children for their parents’ status — punishment that is particularly nonsensical given that undocumented immigrants, collectively, pay billions of dollars each year in taxes,” Mary McCord, legal director of Georgetown Law’s Institute for Constitutional Advocacy and Protection, said in a statement.

How the CARES Act penalizes unauthorized immigrants and their families

The bill excludes those in households with people of mixed immigration status, where some tax filers or their children may use what’s called an Individual Taxpayer Identification Number (ITIN).

The IRS issues ITINs to unauthorized immigrants so they can pay taxes, even though they don’t have a Social Security number. If anyone in the household uses an ITIN — either a spouse or a dependent child — that means no one in the household will qualify for the stimulus checks unless one spouse served in the military in 2019.

If the law is allowed to stand, it could impact an estimated 16.7 million people who live in mixed-status households nationwide, including 8.2 million US-born or naturalized citizens.

The exclusion for mixed-status households defies current practices: Many other federal programs are designed in such a way that US citizen children of unauthorized immigrants can access necessary benefits, including the child tax credit, food stamps, housing assistance, welfare benefits, and benefits from the Special Supplemental Nutrition Program for Women, Infants, and Children.

But there is a precedent for this kind of exclusion. Amid the global financial crisis in 2008, Congress handed out tax rebates to most American taxpayers, except for the spouses of immigrants who didn’t have Social Security numbers.

. . . .

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

Read the rest of Nicole’s outstanding analysis at the link.

Three cheers for Georgetown Law & Villanova Law!

PWS

05-07-20

FINALLY, TOGETHERNESS REIGNS SUPREME👩🏻‍⚖️❤️👨‍⚖️: Unanimous Court, Per Justice Ginsburg, Pulverizes 9th Circuit For Stretching To Hold Immigration Crime Unconstitutional, Remands — UNITED STATES v. SINENENG-SMITH

https://www.supremecourt.gov/opinions/19pdf/19-67_n6io.pdf

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

UNITED STATES v. SINENENG-SMITH CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

No. 19–67. Argued February 25, 2020—Decided May 7, 2020

Respondent Evelyn Sineneng-Smith operated an immigration consulting firm in San Jose, California. She assisted clients working without au- thorization in the United States to file applications for a labor certifi- cation program that once provided a path for aliens to adjust to lawful permanent resident status. Sineneng-Smith knew that her clients could not meet the long-passed statutory application-filing deadline, but she nonetheless charged each client over $6,000, netting more than $3.3 million.

Sineneng-Smith was indicted for multiple violations of 8 U. S. C. §1324(a)(1)(A)(iv) and (B)(i). Those provisions make it a federal felony to “encourag[e] or induc[e] an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law,” §1324(a)(1)(A)(iv), and impose an enhanced penalty if the crime is “done for the purpose of commercial advantage or private financial gain,” §1324(a)(1)(B)(i). In the District Court, she urged that the pro- visions did not cover her conduct, and if they did, they violated the Petition and Free Speech Clauses of the First Amendment as applied. The District Court rejected her arguments and she was convicted, as relevant here, on two counts under §1324(a)(1)(A)(iv) and (B)(i).

Sineneng-Smith essentially repeated the same arguments on appeal to the Ninth Circuit. Again she asserted a right under the First Amendment to file administrative applications on her clients’ behalf, and she argued that the statute could not constitutionally be applied to her conduct. Instead of adjudicating the case presented by the par- ties, however, the court named three amici and invited them to brief and argue issues framed by the panel, including a question never raised by Sineneng-Smith: Whether the statute is overbroad under the

2 UNITED STATES v. SINENENG-SMITH Syllabus

First Amendment. In accord with the amici’s arguments, the Ninth Circuit held that §1324(a)(1)(A)(iv) is unconstitutionally overbroad.

Held: The Ninth Circuit panel’s drastic departure from the principle of party presentation constituted an abuse of discretion.

The Nation’s adversarial adjudication system follows the principle of party presentation. Greenlaw v. United States, 554 U. S. 237, 243. “In both civil and criminal cases, . . . we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present.” Id., at 243.

That principle forecloses the controlling role the Ninth Circuit took on in this case. No extraordinary circumstances justified the panel’s takeover of the appeal. Sineneng-Smith, represented by competent counsel, had raised a vagueness argument and First Amendment arguments homing in on her own conduct, not that of others. Electing not to address the party-presented controversy, the panel projected that §1324(a)(1)(A)(iv) might cover a wide swath of protected speech, including abstract advocacy and legal advice. It did so even though Sineneng-Smith’s counsel had presented a contrary theory of the case in her briefs and before the District Court. A court is not hidebound by counsel’s precise arguments, but the Ninth Circuit’s radical trans- formation of this case goes well beyond the pale. On remand, the case is to be reconsidered shorn of the overbreadth inquiry interjected by the appellate panel and bearing a fair resemblance to the case shaped by the parties. Pp. 3–9.

910 F. 3d 461, vacated and remanded.

GINSBURG, J., delivered the opinion for a unanimous Court. THOMAS, J., filed a concurring opinion.

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

👎Justice Thomas used his concurring opinion as an opportunity to attack the “overbreadth doctrine,” and to solicit future challenges to it, presumably from right-wing advocates and activist conservative judges who agree with him.

It’s interesting how moderate and liberal judges who believe in the Constitution, the rule of law, and standing up for individual rights in the face of government overreach are often forced to deny that they are “activists.” By contrast, right wing judges often make little or no attempt to disguise their activist, often anti-human-rights, “turn back the clock to the bad old days,” agenda and to use their opinions as a forum to critique and solicit challenges to rules of law they don’t like. Often such rules under attack from the judicial right tend to vindicate the rights and humanity of individuals, particularly minorities and other vulnerable individuals, over corporate, government, financial, and other elitist interests.

Additionally, as with Thomas, the the right-wing judicial activists customarily harken back wistfully to a past “golden” age of American Jurisprudence when the exclusively white, male, nearly 100% Christian Supremes were perfectly happy to look the other way and bend the rules to favor ruling elites over African Americans, women, children, the poor, non-Christians, and others who weren’t part of the “ruling elites.” Thomas laments the abandonment of the views and methods of the “18th & 19 century” American judiciary. Most ironically, under those rules and the “world outlook and values” they often embodied, it’s highly unlikely that Thomas himself would have been able to attend Yale, become a Justice, or otherwise be allowed and encouraged to reach his full potential.

Quite contrary to Thomas’s argument, we can’t and shouldn’t take “value judgement” out of judging. Indeed, Thomas’s plea to let the Legislature and the Executive run roughshod over constitutional rights if they choose to do so is, in and of itself, a clear “value judgment” as to what best serves society. Making “value judgments” is at the heart of all judging. That isn’t the problem. No, the real problem is the lack of consistent human (and humane) values, practical experience, and human empathy in too many of today’s Federal Judges, particularly those appointed by Trump and Moscow Mitch.

At least we clearly know what’s coming in the future from the “Trump Judiciary” and their cheerleaders like Thomas. Consequently, it’s critically important that “Democrats and liberals” act accordingly the next time they get control over Federal Judicial appointments.

Due Process Forever!

PWS

05-07-20

DEATH IN THE GULAG⚰️: ICE Notches First Known COVID-19 Prisoner Fatality ☠️ — Advocates Have Been Warning 🆘 Of Dangers & Seeking Releases — How Many More Will Die ⚰️ in Captivity?

https://apple.news/AF9ZwIjhuQY2ICw31DyPnug

Sarah Ruiz-Grossman reports for HuffPost:

An immigrant being held in detention at an Immigration and Customs Enforcement facility in San Diego has died of COVID-19.

A 57-year-old detainee at ICE’s Otay Mesa facility, which is run by private contractor CoreCivic, died early Wednesday of complications of the coronavirus disease after being hospitalized since late April, according to San Diego County officials. This is the first reported COVID-19 death of an immigrant in ICE custody.

Carlos Ernesto Escobar Mejia was from El Salvador, according to a government report obtained by BuzzFeed News. He’d been held by ICE since January and was hospitalized April 24 after exhibiting coronavirus symptoms. He had hypertension and self-reported diabetes but was denied release from custody in mid-April by an immigration judge.

ICE and CoreCivic did not immediately respond to a request for further details.

Advocates had been warning about unsafe health conditions at the Otay Mesa detention center for weeks. The facility currently has the biggest outbreak of COVID-19 of any ICE detention center, with at least 132 immigrants and 10 ICE employees testing positive as of last week.

(CoreCivic in mid-April said it had given masks to detainees at Otay Mesa and was quarantining positive cases in “housing pods” and separating those at high medical risk.)

Of nearly 30,000 immigrants in ICE detention centers nationwide, the agency has so far tested only 1,460 for COVID-19, and more than 705 immigrants have tested positive.

Activists have been calling for the release of all people from immigration detention, warning that there is no realistic way to keep immigrants safe during a pandemic in such facilities, which have long been reported to have substandard health care and sanitation.

“This is a terrible tragedy, and it was entirely predictable and preventable,” Andrea Flores, deputy director of immigration policy at the American Civil Liberties Union, said in a statement Wednesday.

“For months, public health experts and corrections officials have warned that detention centers would be Petri dishes for the spread of COVID-19 — and a death trap for thousands of people in civil detention,” she added. “Unless ICE acts quickly to release far more people from detention, they will keep getting sick and many more will die.”

. . . .

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

Read the rest of Sarah’s article at the link.

This illustrates the point recently raised by Don Kerwin at CMS in an article posted on Courtside. https://immigrationcourtside.com/2020/05/03/don-kerwin-cms-detention-should-not-be-a-death-sentence-☠%EF%B8%8F☠%EF%B8%8F⚰%EF%B8%8F⚰%EF%B8%8F/

According to Sarah’s article, this victim was denied bond by an Immigration Judge, despite exhibiting “high risk” factors in an inherently unhealthy and unsafe detention center. Judge Jeffrey Chase and I have pointed out before that a functional Immigration Court, including a BIA committed to fair and impartial justice and willing to reign in unjustified policies and poor judgment on the part of ICE, could have avoided such tragedies. https://immigrationcourtside.com/2020/04/06/hon-jeffrey-s-chase-matter-of-r-a-v-p-bond-denial-maximo-cruelty-minimal-rationality-idiotic-timing-bonus-my-monday-mini-essay-how-eoir/

But, we have just the opposite these days. https://immigrationcourtside.com/2020/03/18/latest-outrage-from-falls-church-bia-ignores-facts-abuses-discretion-to-deny-bond-to-asylum-seeker-matter-of-r-a-v-p-27-in-dec-803-bia-2020/

That means that responsibility for meaningful custody review passes to the U.S. District Courts.

Why have an Immigration Court at all if it’s going to function as a mindless “rubber stamp” on DHS Enforcement driven by White Nationalist extremist politicos like Miller? If the Immigration Courts are no longer willing or able to guarantee fair and impartial adjudications, which unfortunately appears to be the case under Billy Barr, maybe all removal proceedings and bond hearings should just be held before U.S. Magistrate Judges and U.S. District Judges until Congress establishes an independent Article I Immigration Court!

Due Process 🧑🏽‍⚖️🧑🏽‍⚖️ Forever! More Deaths ⚰️ in the New American Gulag, ☠️ Never!

PWS

05-07-20

TANVI MISRA @ ROLL CALL: The BIA’s Biased Hiring Program Is As Bogus As A Three Dollar Bill — Designed To Empower White Nationalist Nation, Deny Due Process! ☠️👎🏻 — “Everyone knows that [EOIR Director James McHenry] 👺 was changing the process along the way to ensure he got the candidates he pre-selected.”

https://www.rollcall.com/2020/05/04/doj-hiring-changes-may-help-trumps-plan-to-curb-immigration/

Tanvi writes for Roll Call:

. . . .

The hiring plan documents show shortened hiring timelines and suggest preference given to judges with records of rulings against immigrants. The documents also demonstrate the influence held over the board by the political leadership of the Executive Office for Immigration Review, the Justice Department agency that oversees the nation’s immigration court system, particularly its director, James McHenry.

“The [hiring] processes previously in place were cumbersome and not efficient but what we’re seeing with this hiring plan is that they’ve really eviscerated any protections that were put in place … to create a flexible process to fit their political priorities,” said Laura Lynch, senior policy counsel at AILA. “It’s very unclear and opaque and provides the leeway to manipulate the process.”

An EOIR official, who would only comment if identified as an agency spokeswoman, said its current process is “open, competitive, merit-based.”

“During the most recent hiring cycle, every interview panelist was a career (i.e. not political) employee, which would not have been possible under the previous procedures,” said the spokeswoman after CQ Roll Call reached out to EOIR for comment. “Individuals who assert that such changes make the hiring process less neutral are either ignorant or mendacious.”

New roles

Under the current administration, the Justice Department has rapidly expanded the board. In 2018, it went from 17 members to 21. On March 31, the department announced a new rule, effective the next day, expanding the board to 23 members.

McHenry first advertised for new positions in fall 2018. But instead of referring to them as “board members,” as they had been historically described, he called them “appellate judges,” a reflection of other changes to come. Instead of working out of the board’s office in Falls Church, Va., appellate judges could work from any immigration court in the country.

They also could review cases at both the trial and the appellate level — creating potential conflicts of interest.

EOIR said its office first proposed that designation in 2000.

“Elevating trial-level judges to appellate-level courts is common in every judicial system in the United States,” the agency spokeswoman said.

True, said Ashley Tabaddor, who heads the union, the National Association of Immigration Judges. But she noted judges in an independent judiciary don’t hear cases at the trial and appellate level at the same time.

“They are taking these concepts and they’re mashing them up together to essentially walk away from the traditional court model,” she said, adding that she believes conflating the roles could be a way to dilute union membership.

Tabaddor and others are currently fighting the Justice Department over its move in January to decertify the judges’ union.

Faster hiring process

In 2008, a DOJ Inspector General investigation found widespread political hiring at the board. As a result, to curb future practices, the department implemented a multi-layered process that entailed vetting by both political appointees and career professionals.

The current hiring process appears to chip away at the role career employees play in that process, and instead amplifies that of the EOIR director and other political appointees, according to Lynch and some other experts who reviewed the changes.

McHenry refers several times in one memo that he seeks to streamline the hiring process and make it more efficient. For instance, new openings on the board are now public for only 14 days, as opposed to the previous 30 days, to “begin the application review process more quickly,” McHenry writes in the memo.

In another step, current board members have to submit their evaluations of job candidates within three days, as opposed to a week. McHenry notes other tighter deadlines for other parts of the applicant screening process.

The changes raise concerns by immigration judges, lawyers and court observers about political appointees rushing preferred candidates, including those with unresolved complaints in their records, onto the board.

“Looks like another coverup for ‘expedited,’ predetermined, ideologically-based, ‘insider’ hiring,” Paul Schmidt, a retired immigration judge who headed the Board of Immigration Appeals under President Bill Clinton, told CQ Roll Call via email.

Schmidt, who tracks every board hire and firing on a well-known immigration blog, described the current hiring process as “a fraud and a joke — but not so funny when we consider the human lives at stake.”

According to a former longtime member of the appeals board who served under McHenry, EOIR’s director has manipulated even the newly laid out hiring process. “Everyone knows that he was changing the process along the way to ensure he got the candidates he pre-selected,” said the former board member, who spoke to CQ Roll Call on the condition of anonymity because of fear of agency retribution.

EOIR leaders did not respond to questions posed to agency leaders specifically regarding this allegation.

. . . .

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

Read Tanvi’s full article at the link.

Actually, I’m neither neither “ignorant [nor] mendacious.” I probably know more about EOIR than anyone alive. I”ll certainly put my knowledge of immigration law and due process up against anyone at the DOJ today!

The proof of any merit based hiring system is in the results. Nobody, and I mean nobody, outside the world of DOJ politicos and the restrictionist right would claim that the last half-dozen selections for the BIA are the “best and the brightest.” None of them actually have any recent relevant experience representing migrants or asylum seekers.

There must be hundreds if not thousands of immigration practitioners out there who would be better qualified and more deserving of these jobs. Under current conditions, what would a civil servant not actually involved in Immigration Court practice know about what makes a good BIA Appellate Immigration Judge? What would they know about legal issues facing the immigrant community? Next to nothing, to put it generously. So, what’s the benefit of involving them except to “rubber stamp” and “launder” Director McHenry’s anti-immigrant preselections. That’s exactly what the “inside” source in Tanvi’s article confirms!

What is badly needed and sorely lacking is input from the immigration bar and the NGOs who actually practice before the Immigration Courts and the BIA and have seen the unmitigated due process and fundamental fairness disaster that unfolds every day under this Administration. That’s the way other judicial “merit selection” systems are run — with input from outside Government, indeed some even get input from influential non-lawyers within the community being served by the courts.

Such a system was actually used on a number of occasions during the Clinton Administration. And, hiring then didn’t take anywhere near as long as it has under the bloated, biased, and opaque systems employed by the Bush, Obama, and Trump Administrations. Not surprisingly, every appointment to the BIA since 2000 has been some type of “government insider.”

Today’s BIA is largely White, Male, Anglo, and restrictionist. That bears no resemblance whatsoever to the community that the Immigration Courts are supposed to be serving. Indeed, it bears little resemblance to the composition of today’s America or the attitudes of the majority of Americans toward migrants.

Even with tons of “undue deference” given to the BIA by the Article IIIs, scarcely a week goes by without the Article IIIs highlighting some grossly defective performance in the BIA’s interpretation and application of the basics of immigration law and due process. Yet, the BIA selection process makes no effort to encourage or promote private sector applicants renowned and respected in the larger legal community for their scholarship, professionalism, and problem-solving skills. Indeed, some Immigration Judges with just those skills have prematurely been driven from the bench by this Administration’s racially biased and fundamentally unfair manipulation of the Immigration Court process.

The BIA’s bogus hiring process is a prime example of fraud, waste, and abuse. And the failure of Congress and the Article III Courts to put an end to this ridiculous perversion of justice is a disgraceful act of complicity in the disgusting “Dred Scottification” of “the other.”

INTERESTING HISTORICAL FOOTNOTE: The current 23 Board Members is where the BIA was in 2001 before the “Ashcroft Purge” artificially reduced the BIA to 12 Members to eliminate dialogue, suppress dissent, and skew results to favor DHS without any meaningful deliberation or internal opposition. In other words, creating a false impression of consensus by shutting out dissent. The immediate cratering of the quality of the BIA’s decision making caused an uproar of resistance and criticism in the Circuit Courts of Appeals. Since then, the Immigration Courts have been in a two-decade-long “death spiral” with due process, fundamental fairness, judicial integrity, efficiency, and human lives among the victims.

Here’s more from Laura Lynch over at AILA about the ongoing farce at EOIR and the BIA 🤡☠️:

NEW Roll Call article by Tanvi Misra – DOJ hiring changes may help Trump’s plan to curb immigration

AILA and the American Immigration Council Obtain EOIR Hiring Plan via FOIA Litigation

AILA and the American Immigration Council Press Release, New Documents Reveal Immigration Judge Hiring Plan Designed to Stack the Courts, Prioritize Politics Over Justice

This November, vote like your life depends on it! Because it does!

Due Process Forever! Fraudulent “Clown Courts” 🤡 Never!

PWS

05-05-20

DON KERWIN @ CMS: “Detention Should Not Be A Death Sentence.”☠️☠️⚰️⚰️

Donald M. Kerwin
Executive Director
Center for Migration Studies

https://cmsny.org/publications/immigrant-detention-covid/

This essay was last updated on May 2.

In late March, I argued in an earlier version of this paper that the US Department of Homeland Security (DHS) should immediately embark on an aggressive program of release, supervised release and alternative-to-detention (ATD) programs for immigrant detainees in response to the Coronavirus Disease 2019 (COVID-19) pandemic.[1] Since that time, the number of immigrants in Immigration and Customs Enforcement (ICE) detention has fallen by nearly 8,400, but not nearly as fast or dramatically as necessary, given the perilous conditions in which nearly 30,000 immigrant detainees remain and how rapidly the virus has swept through immigrant detention facilities throughout the country and beyond.

The Size of the Crisis

On March 17, Immigration and Customs Enforcement (ICE) reported that there were no “confirmed” cases of COVID-19 in its detention centers, a meaningless claim given the paucity of testing and the certainty of “unconfirmed” cases, as affirmed by ensuing lawsuits.[2] A month later, ICE reported 124 confirmed cases. Six weeks later, as of May 1, this number had more than quadrupled to 522 cases in 34 facilities, as well as 39 confirmed cases among ICE employees in those facilities (ICE 2020b).[3]

Yet ICE’s figures point to only the tip of the iceberg. By mid-April, ICE had tested only 300-400 detainees for COVID-19 infection (Misra 2020). By May 1, it had tested 1,073 detainees, a very low percentage of those in its custody during the course of the pandemic (ICE 2020b). Moreover, ICE figures do not count former detainees who contracted COVID-19 in its custody,[4] a large number of whom were deported prior to being tested (Dickerson and Semple 2020). Nor do they count the infected staff of ICE contractors, including employees of the private corporations that own and operate its largest detention centers and that administer many state and local ICE contract facilities.[5] On April 2, for example, ICE reported no confirmed cases of infected detainees, but one suspected case, at the massive Stewart Detention Center in Lumpkin, Georgia (Stewart). CoreCivic, one of ICE’s largest private detention contractors, operates Stewart.[6] By April 10, ICE “knew of” 30 suspected and five confirmed cases at Stewart.[7] As of April 28, 42 CoreCivic employees and one ICE employee at Stewart had tested positive for COVID-19 (Stokes 2020). In an April 21 email to Mark Dow, Amanda Gilchrist, the Director of Public Affairs at CoreCivic said there had been 98 positive cases among CoreCivic staff since the onset of the pandemic, a number that did not count staff who had “recovered from COVID-19” and received “a doctor’s clearance to return to work” (on file with author).

ICE has confirmed that “a number of non-ICE employees (contractors) in facilities that hold ICE detainees have contracted COVID-19, and some of them died from COVID-19” (Tanvi 2020). However, it has been “unable to determine how many non-ICE personnel in state and local jails have contracted COVID-19 or died from COVID-19” (ibid.). Finally, it reports that “some non-ICE detainees in non-ICE facilities, shared with ICE detainees, also contracted COVID-19, and some of them died from COVID-19” (ibid.).

As of March 21, 38,058 immigrants were in ICE custody. By April 25, this number had dropped to 29,675 including 15,855 persons apprehended by ICE and Homeland Security Investigations, and 13,820 referred by Customs and Border Protection (CBP) (ICE 2020a). By way of comparison, Canada – which detains many times fewer immigrants than the United States – released more than one-half of those in its custody between March 17 and April 19 (Global News 2020).

As of April 25, ICE still unconscionably held 5,261 persons who had established “persecution” and “torture” claims, and who should not be detained in any circumstances, much less the present. It also continues to detain persons approved for release. In a particularly disturbing report, detainees in New York cannot post bond because of the closure of ICE’s New York City office (Katz 2020). Finally, it continues to detain families and minors. On April 13, the Washington Post reported that the population at ICE’s three family detention centers had fallen from 1,350 to 826 persons (Hsu 2020). By April 21, the number had fallen to 698 persons, including 342 minors.[8]

On March 28, a federal district judge issued a temporary restraining order that required the administration to “make and record continuous efforts” to release the more than 5,000 minors in ICE family detention facilities and Office of Refugee Resettlement (ORR) shelter-like facilities for unaccompanied minors.[9] Her decision recognized the “severity of the harm” to which children in these facilities, particularly ICE facilities, “are exposed and the public’s interest in preventing outbreaks of COVID-19 … that will infect ICE and ORR staff, spread to others in geographic proximity, and likely overwhelm local healthcare systems.” On April 24, the judge ordered ORR and ICE to continue “to make every effort to promptly and safely release” children with “suitable custodians.”[10]

ICE Policies and Procedures

ICE can decrease its detention population in two main ways, by admitting fewer immigrants into its system and by more generous and, in the circumstances, appropriate release standards. It has failed to move decisively enough in either direction.

. . . .

********************
Read Don’s complete article at the link.

Thanks Don!

In this regime, the Gulag is all about using the “facade” of euphemistically-named “civil immigration detention” as a way of punishing those who have the audacity to assert their legal rights, to limit their Fifth Amendment and statutory rights to counsel, to inhibit their ability to understand the applicable legal criteria and prepare their cases, to coerce them into abandoning claims for relief and waiving appeals, and to send “deterrent messages” to others.

What it doesn’t have much connection with these days is insuring appearance and protecting the public. Relatively few detained individuals have criminal records that present a realistic threat. Also, all reputable studies show that when individuals are represented by counsel, community alternatives to detention are used, and individuals actually understand the requirements, the appearance rate for those with asylum or other claims for relief approach 100%.

So, the Gulag is largely an expensive and dangerous fraud. That’s not to say that other Administrations haven’t misused detention of non-criminals. It been more or less increasing over the past four decades — ever since the Mariel Boatlift. But, this regime has gone “above and beyond” in the intentionally cruel, unnecessary, and coercive expansion and abuse of the Gulag.

The BIA has abandoned any attempt to bring integrity and uniformity to the bond system. Instead, they have adopted a “screw the individual, kiss up to Barr, Miller, & the White Nationalist politicos who run this dysfunctional system.”

The response from the Article IIIs has been mixed.

Hopefully, the extensive U.S. District Court detention litigation across the country will finally “open the eyes” of the Article III Judiciary to the callous disregard of human life and welfare and the abusive, racially driven, punitive intent fueling the regime’s “Gulag expansion.”

PWS

05-03-20

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PWS

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