"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals PAUL WICKHAM SCHMIDT and DR. ALICIA TRICHE, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
A federal judge ordered Texas to remove floating barriers in the Rio Grande and barred the state from building new or placing additional buoys in the river, according to a Wednesday court filing, marking a victory for the Biden administration.
Judge David Alan Ezra ordered Texas to take down the barriers by September 15 at its own expense.
The border buoys have been a hot button immigration issue since they were deployed in the Rio Grande as part of Gov. Greg Abbott’s border security initiative known as Operation Lone Star. The Justice Department had sued the state of Texas in July claiming that the buoys were installed unlawfully and asking the judge to force the state to remove them.
In the lawsuit, filed in US District Court in the Western District of Texas, the Justice Department alleged that Texas and Abbott violated the Rivers and Harbors Appropriation Act by building a structure in US water without permission from United States Army Corps of Engineers and sought an injunction to bar Texas from building additional barriers in the river. The Republican governor, meanwhile, has argued the buoys are intended to deter migrants from crossing into the state from Mexico.
Texas swiftly appealed the judge’s order.
. . . .
Ezra also found Texas’ self-defense argument – that the barriers have been placed in the face of invasion – “unconvincing.”
. . . .
Ezra also found Texas’ self-defense argument – that the barriers have been placed in the face of invasion – “unconvincing.”
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Read the rest of Priscilla’s report at the link.
Who knows how this will play out in the 5th Circuit and the Supremes, given the composition of those courts. But, at least for a day, Judge Ezra has brought some common sense and the rule of law to bear on out of control grandstanding Texas “Governor” Greg Abbott.
We should also remember that the vast majority of those whom Abbott and the nativists bogusly call “invaders” seek only to turn themselves in to U.S. authorities so they can exercise their clear legal rights to apply for asylum — rights that attach regardless of status or manner of entering the U.S. (Rights that also have improperly been diminished and impeded by the Biden Administration’s ill-advised asylum regulations, currently under legal challenge).
If successful (under a legal system intentionally rigged against them), these so-called “invaders” will use their skills and work ethic to expand our economy and help Americans prosper while saving their lives and those of their families. To anybody other than Abbott and other White Nationalists, that sounds like a potential “win-win” that could and should be “leveraged” for everyone’s benefit!
Judge Ezra’s opinion in the aptly-named U.S. v. Abbottcan be found here:
This brief represents the views of two groups of amici curiae. See Corporate
Disclosure Statement for names of amici curiae. The first group is comprised of thirty-two immigration law scholars and clinical professors. These amici teach immigration law and/or provide clinical instruction in law school clinics that provide representation to asylum seekers and noncitizens seeking relief under 8 U.S.C. § 1231 and 8 U.S.C § 1158. As such, amici are knowledgeable of the particular legal requirements of 8 U.S.C. § 1231 and 8 U.S.C § 1158 and have a special interest in the proper administration and interpretation of the nation’s immigration laws, particularly asylum and withholding of removal.
The second group is comprised of forty-one former immigration judges (“IJs”) and Board of Immigration Appeals (“BIA”) members who have collectively presided over thousands of removal proceedings and have interest in this case based on their many years of dedicated service administering the immigration laws of the United States. Based on this experience, amici believe that withholding of removal
1 Pursuant to Rule 29 of the Federal Rules of Appellate Procedure, amici notes that all parties have consented to the filing of this brief.
Furthermore, pursuant to Rule 29 of the Federal Rules of Appellate Procedure, amici further certifies that no party’s counsel authored the brief in whole or in part, no party or party’s counsel contributed money that was intended to fund preparation or submission of the brief, and no person, other than amici, their members, or counsel has contributed money intended to fund preparing or submitting the brief.
is the means whereby Congress provided for the United States to meet its international treaty obligation of “nonrefoulement” under Article 33 of the Refugee Convention. Withholding of removal is a vital legal tool upon which IJs rely to ensure that noncitizens appearing before them are not removed to countries for which they have proven it to be more likely than not that they have experienced (or will experience) persecution on account of a protected ground — an extremely high burden to meet. This relief is mandatory where the noncitizen’s burden of proof is met and does not lead to permanent status or derivative status for immediate family members, in contrast to asylum, which is a discretionary form of relief that grants a permanent status and derivative status for immediate family members.
Amici contend that the more lenient “a reason” standard, as applied to the nexus between the protected ground and the persecution for withholding (as opposed to the “at least one central reason” standard for asylum) requires IJs to order withholding in cases where evidence of nexus may be insufficient for a discretionary grant of asylum. Such an interpretation would provide greater protection from violating the international treaty obligation of nonrefoulement. The instant case, where Petitioner is ineligible for asylum but may be protected from severe future persecution by withholding of removal, presents exactly the context in which Congress intended for the lesser “a reason” nexus standard to apply. Addressing this question here provides an opportunity for this Court to affirm Congress’s clear
intent, expressed in the statutory language of 8 U.S.C. § 1231(b)(3)(C), to establish protection against nonrefoulement for this noncitizen and many others who, for any number of reasons, are ineligible for the discretionary relief of asylum.
“On Petition for Review of a Final Order of the Board of Immigration Appeals. (Agency No. A209-343-065). Immigration Judge: David Cheng. … As for Quinteros’s Convention Against Torture claim, our precedent requires the agency to follow certain steps. Yet neither the judge nor the Board did so. … Here, neither the immigration judge nor the Board followed our instructions. … Those procedural failures infected the agency’s decisions. Neither the immigration judge nor the Board considered a separate death threat and beatings that Quinteros got from gang members. In gauging the likelihood and severity of future harm, the agency should have considered the gang’s death threat too. See Herrera-Reyes v. Att’y Gen., 952 F.3d 101, 112 n.5 (3d Cir. 2020). So we will grant the petition as to Quinteros’s Convention Against Torture claim, vacate the Board’s order, and remand.”
Gee whiz, applying and following Circuit precedent seems like “Immigration Judging 101!” Yet two levels of supposedly “expert” EOIR judges blew it — badly! Fortunately, this respondent was represented by experienced Federal litigator Thomas E. Moseley, who is never afraid to go to the Article IIIs to correct EOIR’s errors.
But, most respondents aren’t so lucky. So, it’s likely that for every defective adjudication “outed” by a Circuit, multiple, potentially deadly or at least life changing, mistakes go uncorrected. Worse yet, some are even “institutionalized!” Seems like a “heck of a way to run the railway,” particularly for a former Article III Judge who was once nominated for the Supremes!
Unforced error after unforced error in life or death cases from Garland’s substandard “courts!” Would brain surgeons 🤯☠️ who kept on screwing up critical operations still be “on staff.” I doubt it! So, why aren’t “DOJ attorneys” carrying out quasi-judicial functions subject to some quality controls? In theory, that’s supposed to be the BIA’s function. But, the BIA has firmly established itself as “part of the problem, NOT the solution!”
Congrats to my long-time friend and former “Legacy INS” colleague Tom Moseley. As a former INS Special Assistant U.S. Attorney in the SDNY (in the time of “Crazy Rudy”) during the “Inman/Schmidt Era” at INS General Counsel, Tom has also seen both sides of the system!
“Petitioner Darwin Murillo Morocho seeks review of an order of the Board of Immigration Appeals (“BIA”) affirming the denial of his application for deferral of removal to Ecuador under the Convention Against Torture (“CAT”). Murillo Morocho claims that, if returned to Ecuador, it is more likely than not that he would be tortured by the Ecuadorian government itself or by private actors acting with the consent or acquiescence of public officials. Before this court, he argues that the BIA applied the wrong standard of review to the Immigration Judge’s (“IJ’s”) legal conclusions. He further claims that both the BIA and the IJ applied the incorrect legal standard in assessing whether the Ecuadorian government would more likely than not consent or acquiesce in his torture. Finally, he argues that even if the BIA and IJ applied the proper legal standards, the BIA’s decision, which adopts the IJ’s decision, is not supported by substantial evidence and that the IJ erred in not giving him the opportunity to further corroborate his testimony. We agree that the agency1 applied the incorrect legal standard to the “consent or acquiescence” prong of Murillo Morocho’s CAT claim. We therefore grant his petition for review in part, vacate the order of the BIA denying Murillo Morocho CAT relief as to Ecuador, and remand for further proceedings consistent with this opinion.”
Many congrats to Tasha and the rest of rest of the wonderful pro bono team over at WilmerHale!
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
Here’s what my Round Table colleague Hon. “Sir Jeffrey” Chase had to say:
Wonderful decision. Wilmer Hale has been doing outstanding work on deportation defense litigation.
H.H., the First Circuit’s recent precedent in which our Round Table filed an amicus brief, featured prominently in this decision.
Once again, the agency took the easy out – i.e. giving lip service to the acquiescence standard, rather than indulging in the in depth analysis required in such claims. Of course, EOIR’s training does not teach otherwise, and the BIA chooses to rubber stamp rather than correct and remand.
The First Circuit actually did the required analysis here. By contrast, it appears that as a “dismissal of a denial” by an IJ, this decision “defaulted” to the BIA’s “any reason to deny” assembly line. I suspect that if this had been a DHS appeal of an IJ grant, it would have received a more detailed, critical analysis. However, as we often see, even that analysis might be devoted to finding a bogus reason to deny.
Despite some improvement in the quality of IJ and BIA appointments under Garland, the lack of dynamic expert “pro due process” leadership and “culture of denial and deterrence” remain debilitating (and potentially life-threatening) problems at EOIR!
AG Merrick Garland thinks it’s fine to play “roulette” with human lives in his arbitrary, capricious, and dysfunctional EOIR. Those trying to help his victims obtain justice disagree! Is this REALLY the way things ran when Garland was on the D.C. Circuit? If not, why is it “good enough for Immigration Court?” IMAGE: tvtropesJennifer Scarborough, Esquire Law Firm of Jennifer Scarborough PLLC Harlingen, TX PHOTO: FirmHamed Aleaziz Staff Writer LA Times
Hamed Aleaziz & Tracy Wilkinson report for the LA Times:
WASHINGTON — Numerous Russians attempting to escape conscription onto the Ukrainian battlefield have made perilous journeys to the United States, trusting in the Biden administration’s declaration that the U.S. would “welcome” those fleeing the war and their forced participation in it.
Instead of winning asylum, however, some of these men have been detained and, in at least one case, deported back to Russia, where they could be thrown into the fight against U.S.-armed Ukraine — into “the meat grinder,” as the U.S. secretary of State recently put it.
The U.S. has deported nearly 190 Russians since the beginning of October 2022, almost three times as many as were removed during the entire prior year.
Some Russian conscripts have refused to board deportation flights, forcing U.S. immigration officers to return them to immigration detention and legal limbo.
Three Russians the U.S. detained and sought to deport told The Times that certain abuse awaited them at home, where draft dodgers are subject to imprisonment or swift dispatch to front lines. The three Russians said they felt bewildered — betrayed, even — bythe U.S. asylum system. The Times is withholding their identities because they fear retribution if they are returned to Russia.
“Death awaits me there if I go back,” said one Russian man in his 20s. He said he was slated to be deported but fainted when immigration officials loaded him onto the plane, which forced them to return him to detention.
Although Ukrainian President Volodymyr Zelensky urged Russians who opposed the war to stay at home and fight to topple Russian President Vladimir Putin, the Biden administration has explicitly encouraged Russians who do not want to fight in Ukraine to seek asylum in the United States.
“There are people out there in Russia who do not want to fight Putin’s war or die for it,” White House Press Secretary Karine Jean-Pierre said in September. “We believe that, regardless of nationality, they may apply for asylum in the United States and have their claim adjudicated on a case-by-case basis.
“We welcome any folks who are seeking asylum, and they should do that,” she said.
But Russians who have taken the U.S. up on that offer have quickly discovered that seeking asylum is not the same as winning it. The U.S. government’s willingness to help people who flee Russia — even if doing so undermines Russia’s war effort — is limited.
In some cases, the government has argued that being called up to serve in the Russian military is not alone sufficient grounds for asylum. Jennifer Scarborough, the lawyer for the three Russians The Times interviewed, has countered that they qualify for asylum because they did not want to be involved with the war for political reasons and would face unreasonable repercussions for refusing to serve.
“They could be deported back to a regime that is committing gross human rights violations,” she said. “I don’t understand how we are denying Russians at all.”
The number of Russians crossing the southern U.S. border surged in November and December, shortly after Putin, facing massive casualties among his troops, ordered up a fresh army mobilization and drafted up to 300,000 reservists.
Russians crossed the southern border more than 5,000 times in November and nearly 8,000 times in December, a major increase from earlier months.
More than 8 million Ukrainians have fled their homeland since Putin launched his invasion of the former Soviet Republic on Feb. 24, 2022. Their escapes have involved trains and commercial flights and massive assistance, and they have largely been welcomed in other countries.
By contrast, many of those fleeing Russia for the U.S. have used the same difficult and at times treacherous route that disfavored refugees from all over the world use. A flight from Dubai or Istanbul gets them to South America, where they continue on flights, buses and by foot northward, sometimes trekking through jungle, to reach Mexico and the U.S. border.
One man who spoke to The Times was picked up by immigration agents in December near Tecate. The man made the weeks-long journey to the U.S. with his younger brother.
The man fled Russia when his call-up notice arrived.
“Even in childhood, I understood that, for me, America was a symbol of freedom,” he said in a telephone interview from a detention center in Pennsylvania. “And yes, there was a dream to move here one day. Because during your entire life in Russia, it is difficult; you’re discriminated against at every turn.”
“I went through war,” the man said. “I know what this entails. I saw the war. And now they are trying to force me to bring this to Ukraine.”
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Read the complete report at the link.
Jenn Scarborough asks the right question. In a functioning protection system, one would expect most cases like this to be granted in short order. However, the BIA generally has restrictive precedents on draft evaders and deserters stemming largely from a desire to deny protection to applicants fleeing civil wars in Central America decades ago. See, e.g., Matter of A-G-, 19 I & N Dec. 502 (BIA 1987).
As “Courtsiders” know, the endemic problem is lack of expert, progressive, dynamic, courageous intellectual leadership in a system now solely controlled and operated by a Dem Administration that often acts more like an “old school GOP” one on immigration and human rights! Administration of both parties live in perpetual fear that making good on promises of fair treatment and legal protection would actually motivate refugees to seek it!
That’s a particular problem at EOIR which should be the legal intellectual leader here! We need practical, scholarly, generous, common sense precedents focusing on what should be easily grantable protection claims!
Instead, we have a leaderless, bureaucratic, non-expert mess, still retaining too many elements of the anti-immigrant, anti-asylum, any reason to deny, go along to get along, court as a “deterrent” system constructed and promoted by the Trump Administration. That has continued to churn out both egregious inconsistencies and backlog-building inefficiencies in critical “life or death” cases!
Inside the Gulag The legacy of Biden, Harris, Mayorkas, Garland, Monaco, Gupta, Clarke, Prelogar and others will be truly ugly for the abuses in the “New American Gulag” that Mayorkas continues to operate while DOJ aids cover up and inexcusably defends grotesque human rights abuses! What happened to the concept of integrity and ethics at DOJ?
In Michigan, a man in the custody of Immigration and Customs Enforcement (ICE) was sent into a jail’s general population unit with an open wound from surgery, no bandages and no follow-up medical appointment scheduled, even though he still had surgical drains in place.
A federal inspector found: “The detainee never received even the most basic care for his wound.”
In Georgia, a nurse ignored an ICE detainee who urgently asked for an inhaler to treat his asthma. Even though he was never examined by the medical staff, the nurse put a note in the medical record that “he was seen in sick call.”
“The documentation by the nurse bordered on falsification and the failure to see a patient urgently requesting medical attention regarding treatment with an inhaler was negligent.”
And in Pennsylvania, a group of correctional officers strapped a mentally ill male ICE detainee into a restraint chair and gave the lone female officer a pair of scissors to cut off his clothes for a strip search.
“There is no justifiable correctional reason that required the detainee who had a mental health condition to have his clothes cut off by a female officer while he was compliant in a restraint chair. This is a barbaric practice and clearly violates … basic principles of humanity.”
. . . .
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Many thanks to my friend Debi Sanders for sending this my way with her succinct, “says it all,” two-word comment! Read and listen to the full report at the link.
Debi Sanders ESQ “Warrior Queen” of the NDPA PHOTO: law.uva.edu
Yet one more example of the failed Attorney Generalship of Merrick Garland!Where is the integrity, decency, and adherence to the rule of law that we were promised from a former Federal Judge and Supreme Court nominee?
Sure, the inhumanity flourished under the Trump regime! But, the last election was about a change and improvement, particularly in immigration. Garland’s performance on immigration, human rights, and racial justice should be a totally unacceptable to Dems!
FALLS CHURCH, VA – The Executive Office for Immigration Review (EOIR) today announced the appointment of Katharine E. Clark as a Board Member of EOIR’s Board of Immigration Appeals (BIA).
The BIA is the highest administrative body for interpreting and applying immigration laws, having nationwide jurisdiction to hear appeals of decisions by adjudicators, including Immigration Judges.
Biographical information follows:
Katharine E. Clark, Appellate Immigration Judge
Attorney General Merrick Garland appointed Katharine E. Clark as an Appellate Immigration Judge in August 2023. Judge Clark earned a Bachelor of Arts, magna cum laude, in 2003 from Brown University and a Juris Doctorate in 2006 from Georgetown University Law Center. From 2022 to 2023, and 2007 to 2018, she served as a senior litigation counsel and trial attorney at the Office of Immigration Litigation, Civil Division, Department of Justice. From 2019 to 2021, she was a managing attorney at Ayuda in Silver Spring, Maryland, where she also handled cases on a pro bono basis. From 2018 to 2019, she was counsel for the U.S. Senate Judiciary Committee. From 2006 to 2007, she served as a Judicial Law Clerk at the Boston Immigration Court, entering on duty through the Attorney General’s Honors Program. Judge Clark is a member of the Maryland State Bar and the Pennsylvania State Bar.
— EOIR —
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Proud to say Judge Clark is a graduate of not only Georgetown Law (where I am an Adjunct), but one of many distinguished alums of the Legacy Arlington Immigraton Court Internship Program, established by my good friend and colleague Retired U.S. Immigraton Judge Mario Christopher Grant. I later inherited the “Mentor Judge” position upon Judge Grant’s retirement. Judge Clark is the first, hopefully of many, of those we mentored to be appointed to the BIA.
I am also a member of the Advisory Board at AYUDA, where Judge Clark worked as a supervisory attorney from 2019-21.
Judge Clark’s experiences give her an exceptionally broad, varied perspective. She has seen the system from the inside, at EOIR, as an NGO advocate assisting those struggling to deal with EOIR’s dysfunction and institutional unfairness, as an OIL attorney defending EOIR’s work, and as a legislative aide attempting to address the system’s many shortcomings.
She is well positioned to help the BIA and EOIR move beyond the flawed decision-making, unrealistic guidance, and backlog-building “Aimless Docket Reshuffling” that has plagued the Immigration Court System over the past two decades. Hopefully she will be a force in returning EOIR to it’s proper (though long-abandoned) vision of: Through teamwork and innovation, becoming the world’s best administrative tribunals, guaranteeing fairness and due process for all!
It’s far away from that now! But, there are some judges at EOIR like Judge Clark qualified and capable of leading a “due process renaissance” at the beleaguered tribunals. Whether and to what extent they will be able to do so remains to be seen.
Congratulations again and good luck to Judge Clark!
BIA Asylum Panel In Action. It’s hard to ignore the BIA’s violent, deadly, abuse of asylum seekers, particularly those of color. But, somehow, Merrick Garland, Lisa Monaco, Vanita Gupta, Kristen Clarke, and other DOJ officials manage to look the other way, as do Congressional Dems! Too busy fecklessly complaining about Justice Clarence Thomas to look at their own house? Albrecht Dürer, Public domain, via Wikimedia Commons
The panel granted a petition for review of the Board of Immigration Appeals’ denial of Francisco Reyes-Corado’s motion to reopen removal proceedings based on changed circumstances, and remanded.
The Board denied reopening based, in part, on Reyes- Corado’s failure to include a new application for relief, as required by 8 C.F.R. § 1003.2(c)(1). The government acknowledged that under Aliyev v. Barr, 971 F.3d 1085 (9th Cir. 2020), the Board erred to the extent it relied on Reyes- Corado’s failure to submit a new asylum application for relief. Here, however, unlike in Aliyev, Reyes-Corado did not include his original asylum application with his motion to reopen. Consistent with the plain text of § 1003.2(c)(1) and various persuasive authorities, the panel held that a motion to reopen that adds new circumstances to a previously considered application need not be accompanied by an application for relief.
The Board also denied reopening after concluding that Reyes-Corado did not establish materially changed country conditions to warrant an exception to the time limitation on his motion to reopen. Reyes-Corado initially sought asylum relief based on threats he received from his uncle’s family members to discourage him from avenging his father’s murder by his uncle’s family. The Board previously concluded that personal retribution, rather than a protected
** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
REYES-CORADO V. GARLAND 3
ground, was the central motivation for the threats of harm. In his motion to reopen, Reyes-Corado presented evidence of persistent and intensifying threats.
As an initial matter, the panel explained that the changed circumstances Reyes-Corado presented were entirely outside of his control, and thus were properly understood as changed country conditions, not changed personal circumstances. The panel also held that these changed circumstances were material to Reyes-Corado’s claims for relief because they rebutted the agency’s previous determination that Reyes-Corado had failed to establish the requisite nexus between the harm he feared and his membership in a familial particular social group. The panel explained that the Board’s previous nexus rationale was undermined by the fact that the threats, harassment, and violence persisted despite the lack of any retribution by Reyes-Corado’s family against his uncle’s family for at least fourteen years after Reyes-Corado’s father’s murder, and where multiple additional family members were targeted, including elderly and young family members who would be unlikely to carry out any retribution. Thus, the panel held that the Board abused its discretion in concluding that Reyes-Corado’s evidence was not qualitatively different than the evidence at his original hearing.
The panel also declined to uphold the Board’s determination that Reyes-Corado failed to establish prima facie eligibility for relief because Reyes-Corado’s new evidence likely undermined the Board’s prior nexus finding, and the Board applied the improperly high “one central reason” nexus standard to Reyes-Corado’s withholding of removal claim, rather than the less demanding “a reason” standard.
4 REYES-CORADO V. GARLAND
The panel remanded for the Board to reconsider whether Reyes-Corado established prima facie eligibility for relief and to otherwise reevaluate the motion to reopen in light of the principles set forth in the opinion.
COUNSEL
David A. Schlesinger
(argued), Kai Medeiros, and Paulina
Reyes, Jacobs & Schlesinger LLP, San Diego, California, for Petitioner.
Enitan O. Otunla (argued), Trial Attorney; Bernard A. Joseph, Senior Litigation Counsel; Joseph H. Hunt, Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice; Washington, D.C.; for Respondent.
OPINION
KOH, Circuit Judge:
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Congrats to David A. Schlesinger & colleagues!
I’ve often discussed EOIR’s all-too-frequent use of bogus nexus determinations – basically turning normal legal rules on causation on their head – to deny protection to bona fide refugees, particularly those from Latin America and Haiti.
There is a growing body of evidence that EOIR is systematically unfair to Central American asylum applicants. But, Garland, his lieutenants, and Congressional Dems have basically looked the other way as this stunning, widespread denial of due process and equal protection under our Constitution continues to unfold in plain view on their watch! Why? Where’s the dynamic, values-based, expert, ethical leadership we should expect from a Dem Administration?
This particular example of substandard “judging” literally reeks of pre-judgement and “endemic any reason to denialism!”
Dems wring their collective hands about Justice Clarence Thomas, who is essentially unaccountable and untouchable! But, they have done little or nothing to address serious competence, bias, and ethical issues festering in a major “life or death” Federal Court System they totally control!
(1) Torturous conduct committed by a public official who is “acting in an official capacity,” meaning acting under color of law, is covered by the regulations implementing the Convention Against Torture, but such conduct by an official who is not acting in an official capacity is not covered. Matter of O-F-A-S-, 28 I&N Dec. 35 (A.G. 2020), followed.
(2) The key consideration in determining if an official’s torturous conduct was undertaken “in an official capacity” for purposes of CAT eligibility is whether the official was able to engage in the conduct because of his or her government position, or whether the official could have done so without connection to the government.
FOR THE RESPONDENT: Ethan R. Horowitz, Esquire, Lawrence, Massachusetts
SCHMIDT, RETIRED JUDGE OF THE ROUND TABLE, DISSENTING:
I dissent.
A far fairer, more logical, efficient, and uniformity-promoting solution is staring us in the face: An applicant who credibly establishes torture by a public official or officials should be entitled to a rebuttable presumption that the torture was inflicted “under color of law.” The DHS should then be required to establish by a preponderance of evidence that the official was acting in another capacity if it wishes to contest that presumption.
The information and evidence that might overcome a logical presumption that government officials act “under color of law” is much more likely to be available to the DHS than to the applicant. This is particularly true in the many cases where CAT applicants are detained, unrepresented, or both.
This rebuttable presumption would also, as a practical matter, close the gap between our interpretation and the rule in the Ninth Circuit which wisely recognizes no exceptions when torture is inflicted by government officials. See, e.g., Barajas-Romero v. Lynch, 846 F.3d 351, 362 (9th Cir. 2017).
In adjudicating claims from individuals who have already suffered torture at the hands of government officials we must err on the side of protection, not rejection. The panel’s mushy guidance amounts to no practical guidance at all. It will certainly result in conflicting results, increased trial times and backlogs, arbitrary denials, and violations of due process. More backlog-promoting, avoidable Circuit Court remands are sure to follow.
Has Alfred E. Neumann been “reborn” as Judge Merrick Garland? “Not my friends or relatives whose lives as being destroyed by my ‘Kangaroo Courts.’ Just ‘the others’ and their immigration lawyers, so who cares, why worry about professionalism, ethics, and due process in Immigration Court?” Failure doesn’t seem to bother Garland. Maybe it should! PHOTO: Wikipedia Commons
Dan Kowalski reports from LexisNexis Immigration community on the latest screwups from the Article IIIs:
“Mario Fonseca-Fonseca, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) denial of his motion to reopen. Fonseca-Fonseca sought to reopen his immigration proceedings to apply for cancellation of removal. The BIA found that he failed to establish prima facie eligibility for cancellation of removal because he did not submit new evidence that would likely change the result in his case. The parties disagree on a threshold issue—whether the BIA applied the correct burden of proof. … Today, we clarify that prima facie eligibility for relief requires only a threshold showing of eligibility—a reasonable likelihood that the petitioner would prevail on the merits if the motion to reopen were granted. As the BIA previously explained, a noncitizen “demonstrates prima facie eligibility for relief where the evidence reveals a reasonable likelihood that the statutory requirements for relief have been satisfied.” In re S-V-, 22 I. & N. Dec. 1306, 1308 (B.I.A. 2000) (en banc). Because the BIA applied the wrong standard in denying Fonseca-Fonseca’s motion to reopen, we remand to the agency to adjudicate his motions under the proper standard.”
[Hats off to Andrew J. S. Newcomb and Elias Mendoza!]
“This appeal requires us to decide how to apply the categorical approach to a conspiracy crime—a question of first impression in our Circuit. The United States seeks to revoke Lisette Lopez’s naturalization on the ground that she committed a crime of moral turpitude within five years of applying for citizenship and willfully concealed or misrepresented during the application process the fact that she had committed a crime. The district court granted judgment on the pleadings in favor of the government on the ground that Lopez had committed a crime of moral turpitude during the statutory period. Because the crime to which Lopez pleaded guilty—conspiring to launder money—did not categorically involve moral turpitude, we reverse and remand for further proceedings consistent with this decision.”
[Hats way off to the indefatigable Matthew Hoppock! An audio recording of the oral argument is here.]
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3) Sue sponte reopening (5th Cir)
“Mancia would like to have her removal proceedings reopened so that her request for suspension of deportation can be adjudicated according to the still-extant substantive NACARA standards. … She contends that nothing in NACARA limits the Board’s general discretionary power to reopen sua sponte a case in which it has rendered a decision. Indeed, that inherent discretion is codified. See 8 C.F.R. § 1003.2(a). So, she reasons, even though the special and more petitioner-friendly reopening avenue of section 203(c) closed to her in 1998, there is no reason why she cannot ask the Board to grant reopening under its discretionary authority, subject to all the limits that otherwise apply to that authority. … We agree with Mancia. The Board’s reliance on 8 C.F.R. § 1003.43(h) — requiring filing of section 203(c) reopening requests with the Immigration Court — is misplaced because that requirement only applies to “any motion to reopen filed pursuant to the special rules of section 309(g) of IIRIRA, as amended by section 203(c) of NACARA.” See 8 C.F.R. § 1003.43(h)(1). Mancia’s motion to reopen is no such motion. And nothing in NACARA requires those seeking relief under its provisions to do so by filing a section 203(c) motion. The government points to no statute, rule, or precedent to the contrary. And we see no reason why NACARA should be read as implicitly divesting the Board of its discretion to sua sponte reopen a proceeding. … For the foregoing reasons, we grant Mancia’s petition by vacating the Board’s rejection of her motion to reopen her removal proceedings pursuant to the Board’s sua sponte authority and remanding for further consideration of that motion consistent with this opinion.”
Unnecessary mistakes such as this, including ones like USA v. Lopez, above, which carry over into naturalization and other areas, could largely be avoided if Garland heeded expert advice and appointed a BIA of all expert judges. That would be those with universally respected comprehensive knowledge of immigration and human rights, an unswerving commitment to due process, and a demonstrated focus on fair results — NOT the current “any reason to deny, let’s just go with the DHS flow” attitude that infects all too much of the BIA’s decision-making these days.
There is also some irresponsible performance going on at OIL where they are defending flawed results that expert advocates would or should know are unjust and in many cases just flat out wrong or misguided!
The above things are supposed to be “easy fixes” for Dem Administrations. Instead, the EOIR/DOJ continues to a large extent as it did under Trump — with serious adverse human, legal, and future consequences for American democracy.
If you can’t or won’t fix that which you control, what good are you? That’s the question that Dems should be asking about Garland’s indifferent performance on human rights, racial justice, and immigration — all inextricably related whether he and his lieutenants want to admit it or not!
“A federal judge has determined the government was unjustified in its fight to keep a woman locked up in an Aurora immigrant detention center while her deportation case proceeded. U.S. District Court Judge Charlotte N. Sweeney ordered the federal government last September to hold a hearing to determine whether Brenda Viruel Arias should be released from custody. Sweeney found the circumstances of Viruel Arias’ 14-month confinement required a bond hearing to avoid infringing on her constitutional right to due process. Shortly afterward, an immigration judge permitted Viruel Arias’ release after the government failed to prove she should remain behind bars. Viruel Arias’ lawyers then requested $22,601 in attorney fees from the government. Under federal law, victorious parties in civil cases against the government may receive attorney fees if, among other things, the government’s position was not “substantially justified.” On July 12, Sweeny agreed the government was not substantially justified in resisting a release hearing for Viruel Arias. In recent years, she observed, federal judges in Colorado have been sympathetic to non-citizens’ claims of unconstitutional confinement where the detention has exceeded one year. The government, as a party those cases, was aware of the judiciary’s attitude toward prolonged detention. “(T)hey do not justify why they did not follow a clear legal trend,” Sweeney wrote.”
Here’s my favorite quote from Judge Sweeney’s decision: “At bottom, Respondents were not substantially justified in their pre-litigation and litigation practices because they disregarded a clear legal trend in the District and their own agency policies in the underlying action.”
Similar to the Trump Administration, the Biden Administration is wasting taxpayer money on cruel, unnecessary, expensive, illegal detention, and then squandering even more money on the arguably frivolous, and clearly mindless, defense thereof! Somebody should be asking Garland why?
GW Law Immigration Clinic Director Professor Alberto Benítez & Co-Director Professor Paulina Vera
Professor Alberto Benítez reports:
This past Wednesday, August 2, Immigration Judge (IJ) Dinesh Verma of the Hyattsville Immigration Court granted asylum to Immigration Clinic clients R-R- and her 17-year-old son, D-R-. R-R- and D-R- have been Clinic clients since 2019 and their asylum applications were filed that year with the assistance of the Clinic. Their merits hearing was originally scheduled for 2020, but was postponed until this past Wednesday due to the pandemic. They were represented at their hearing by Immigration Clinic summer intern Brennan Eppinger, a rising 2L.
R-R- and D-R- fled Honduras after R-R- stood up to a gang member who was trying to recruit her son, D-R-, to transport drugs. D-R- was 11 years old at the time. The gang member later broke into their home, put a gun to R-R- ‘s head, asked R-R- if she had ever played Russian roulette, and the quote in the subject line is what happened next. R-R- and D-R- sought safety in the United States shortly after.
Please join me and Professor Vera in congratulating Navil Infante, Alex North, Rachel Kidd and Jasmine Elsmasry, who all worked on the case. IJ Verma is a GW Law alum and was a student in my Immigration Law I class in 1997. Brennan noted this fact on the record but the IJ (who did remember me) and the ICE trial attorney waived any conflict issue.
Interestingly, I used the “Russian Roulette analogy” yesterday in referring to AG Merrick Garland’s dismissive attitude toward the outrageous inconsistencies and abuses in his EOIR asylum adjudications.
This is a wonderful, inspiring result, produced by great student lawyering, a thoughtful IJ, and an ICE ACC with a sense of justice and practicality. It should be the rule, not the exception, in EOIR asylum adjudication! But, sadly, it isn’t!
Has Alfred E. Neumann been “reborn” as Judge Merrick Garland? “Not my friends or relatives whose lives as being destroyed by my ‘Kangaroo Courts.’ Just ‘the others’ and their immigration lawyers, so who cares, why worry about professionalism, ethics, and due process in Immigration Court?” PHOTO: Wikipedia Commons
I virtually guarantee that if this case had been adjudicated at the border, in detention, and/or on one of Garland’s “expedited/dedicated” dockets, the result would have been unfavorable. And, depending on the circumstances, it’s not even clear that an applicant with this type of very grantable claim would have access to the asylum adjudication system under Biden’s “enjoined but stayed transit rules!” See, e.g.,https://twitter.com/Haleaziz (A “temporary win” for the Biden Administration, engineered by two 9th Cir. Dem judicial appointees, is a big loss for humanity and the rule of law, defended only by dissenting Trump appointee, Judge VanDyke, a result that should leave advocates scratching their heads about their place in today’s mushy Dem Party.)
Cases like this illustrate how the EOIR system could be run in a fair, efficient, professional, and properly humane manner! But, they don’t answer the question of why isn’t set up to run that way in every case under Garland!
Also, and quite perversely, the failure of the Biden system to produce fair and equitable results at the border puts a premium on individuals who can avoid border processing and get to the interior (the exact opposite of the result Biden claims to be trying to achieve)!
This is a totally screwed up system being “administered” by a Dem Administration that sorely lacks both courage and a clear vision of how to insure that asylum seekers and other immigrants, particularly those of color, receive due process and justice in America!
A HUGE congratulations to RMIAN and Laura Lunn on today’s 10th Circuit win in Arostegui-Maldonado v. Garland. I was lucky enough to be in the court at oral argument to watch Laura expertly navigate tough questions from a difficult panel and today the published decision came out holding (1) that the PFR filed within 30 days of the BIA order affirming the IJ denial of relief in withholding-only proceedings is timely filed and (2) that the IJ and BIA “defied logic and law” in misapplying the under-color-of-law element of the CAT claim, requiring remand.
Incredible work to Laura and all others involved!
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Folks, the IJ’s “reasoning to denial” in this case was beyond totally absurd! It’s an example of the type of judicial misconduct and incompetence that still flourishes in parts of Garland’s “any reason to deny” dysfunctional EOIR!
AG Merrick Garland thinks it’s fine to play “roulette” with human lives in his arbitrary, capricious, and dysfunctional EOIR. Those trying to help his victims obtain justice disagree! Is this REALLY the way things ran when Garland was on the D.C. Circuit? If not, why is it “good enough for Immigration Court?” IMAGE: tvtropes
After more than two years of the Biden Administration under Garland, we still have not seen the type of systemic, merit-based “house cleaning” of biased and incompetent judges and the replacement of deadwood (and worse) at the totally unjust and dysfunctional EOIR that could and should have been a “day one priority” for Garland’s DOJ.
There is simply no excuse for this type of disingenuous, life-threatening performance by both EOIR and OIL under Garland’s deficient leadership! There are literally thousands of qualified experts out here who could have done a better job than the IJ and the BIA in this case!
It’s Garland’s job to get better judges on the EOIR bench — judges who will be fair, impartial, due-process focused, and experts in all facets of immigration and human rights laws! His failure to do his job is undermining our justice system and endangering human lives! How is this “OK?”
In the “real world,” folks who “can’t do their jobs” find themselves “out of a job!” Why is Garland’s DOJ an “exception,” with lives and the future of American justice on the line? Isn’t it past time to “just say no” to continuing to treat the ongoing national disgrace at EOIR as “just an afterthought” in the elitist, disconnected world of Garland’s DOJ, where the human lives being destroyed by DOJ’s failures are treated as “somebody else’s problem?”
Former AG Jeff Sessions openly despised immigrants and their attorneys and encouraged “his judges” at EOIR to help out their “partners at DHS Enforcement.” That attitude lives on even under AG Merrick Garland! This caricature of Jeff Sessions was adapted from a Creative Commons licensed photo from Gage Skidmore’s Flickr’s photostream. DonkeyHotey Creative Commons Attribution-Share Alike 2.0
AMICUS INVITATION (NOTICE TO APPEAR) DUE August 31, 2023
AUGUST 1, 2023
The Board of Immigration Appeals welcomes interested members of the public to file amicus curiae briefs discussing the below issue(s):
ISSUE(S) PRESENTED:
Pursuant to Matter of Fernandes, 28 I&N Dec. 605 (BIA 2022):
1. Should an Immigration Judge allow DHS to remedy a non-compliant Notice to Appear?
2. To remedy a non-compliant Notice to Appear, is either (1) issuing an I-261, or (2) amending the Notice to Appear, permitted by the regulations, and would either comport with the single document requirement emphasized by the United States Supreme Court in Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021)? If not, how can a non-compliant Notice to Appear be remedied?
Request to Appear as Amicus Curiae: Members of the public who wish to appear as amicus curiae before the Board must submit a written request labeled “REQUEST TO APPEAR AS AMICUS CURIAE” pursuant to Chapter 2.10, Appendix A (Directory), and Appendix E (Cover Pages) of the Board of Immigration Appeals Practice Manual. The Request to Appear as Amicus Curiae must explicitly identify that it is responding to Amicus Invitation No. 23-01-08. The decision to accept or deny a Request to Appear as Amicus Curiae is within the sole discretion of the Board. Please see Chapter 2.10 of the Board of Immigration Appeals Practice Manual.
Filing a Brief: Please file your amicus brief in conjunction with your Request to Appear as Amicus Curiae pursuant to Chapter 2.10 of the Board of Immigration Appeals Practice Manual. The brief accompanying the Request to Appear as Amicus Curiae must explicitly identify that it is responding to Amicus Invitation No. 23-01-08. An amicus curiae brief is helpful to the Board if it presents relevant legal arguments that the parties have not already addressed. However, an amicus brief must be limited to a legal discussion of the issue(s) presented. The decision to accept or deny an amicus brief is within the sole discretion of the Board. The Board will not consider an amicus brief that exceeds the scope of the amicus invitation.
Request for Case Information: Additional information about the case, including the parties’ contact information, may be available. Please contact the Clerk’s Office at the below address for this information prior to filing your Request to Appear as Amicus Curiae and amicus brief.
Page Limit: The Board asks that amicus curiae briefs be limited to 25 double-spaced pages.
Deadline: Please file a Request to Appear as Amicus Curiae and amicus brief with the Clerk’s Office at the address below by August 31, 2023. Your request must be received at the Clerk’s Office within the prescribed time limit. Motions to extend the time for filing a Request to Appear as Amicus Curiae and amicus brief may not be entertained. It is not sufficient simply to mail the documents on time. We strongly urge the use of an overnight courier service to ensure the timely filing of your brief.
Service: Please mail three copies of your Request to Appear as Amicus Curiae and amicus brief to the Clerk’s Office at the address below. If the Clerk’s Office accepts your brief, it will then serve a copy on the parties and provide parties time to respond.
Joint Requests: The filing of parallel and identical or similarly worded briefs from multiple amici is disfavored. Rather, collaborating amici should submit a joint Request to Appear as Amicus Curiae and amicus brief. See generally Chapter 2.10 (Amicus Curiae) and Chapter 4.6(i) (Amicus Curiae Briefs) of the Board of Immigration Appeals Practice Manual.
Notice: A Request to Appear as Amicus Curiae may only be filed by an attorney, accredited representative, or an organization represented by an attorney registered to practice before the Board pursuant to 8 C.F.R. § 1292.1(d). A Request to Appear as Amicus Curiae filed by a person specified under 8 U.S.C. § 1367(a)(1) will not be considered.
Attribution: Where more than three attorneys or representatives sign an amicus brief or filing, the Board will name only the first three individuals in the published case. If you wish a different set of three names or have a preference on the order of the three names, please specify the three names in your Request to Appear as Amicus Curiae and amicus brief.
Clerk’s Office Contact and Filing Address:
To send by courier or overnight delivery service, or to deliver in person:
Amicus Clerk
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Business hours: Monday through Friday, 8:00 a.m. to 4:30 p.m.
Fee: A fee is not required for the filing of a Request to Appear as Amicus Curiae and amicus brief.
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Seems like the obvious “remedy” would be to require that DHS issue a new compliant NTA!
Respondents don’t get to “remedy” all mistakes, even inadvertent ones! Why should the USG be allowed to weasel its way out of a situation they intentionally created in a misguided effort (aided and abetted by EOIR “management”) to cut corners and generate statistics to please their political masters?
Ever since the “Ashcroft purge,” the BIA has functioned less and less as an independent quasi adjudicative body and more and more as an apologist for, enabler, or justifier of each Administration’s immigration enforcement agenda! In other words, the BIA’s role has become largely to slap a “quasi-judicial veneer” on DHS enforcement policies and priorities so that OIL can argue Chevron deference or even “Brand X” in the Article IIIs!
Of course, using EOIR as a “deterrent” and “enforcer” over the past two decades has been a spectacular failure! It has led to “Aimless Docket Reshuffling on Steroids,” absurdly insurmountable backlogs, and frequent rebukes from the Article IIIs.
Indeed, having helped create and magnify exponentially the mess at EOIR, many of the Trump and Biden Administration’s “gimmicks” appear aimed at avoiding or sidestepping the EOIR process altogether.
It’s the height of disingenuousness! At the urging of the White House, DOJ and DHS “break” the fair hearing system at EOIR. They then use their own misconduct and mismanagement as an excuse to deny asylum seekers and others access to the fair and impartial adjudication system to which they are legally entitled!
And, while the Article IIIs, even the Supremes, have “called out” EOIR on frequent, particularized errors, they have been happy to sweep the obvious “big problem” under the rug in a monumental exercise of “judicial task avoidance!”
That problem is that as currently operated, the EOIR system is a clear violation of the Constitutional principle that individuals facing removal, an often irreparable, even deadly, loss, are entitled to a reasonable decision from a fair and impartial decision-maker. See, e.g., Goldberg v. Kelly, 397 U.S. 254 (1970). While justice is served in some EOIR decisions, the systemic failures push in the exact opposite direction.
Without the necessary systemic safeguards in place, life and death decisions are largely an arbitrary and capricious “crap shoot” where wildly inconsistent results on the same or similar facts too often depend on the attitude of the judge, the whimsical decisions by “management” on whether to interfere in decision-making, and the location and circumstances of the hearing.
This is NOT the way to run a legitimate court system in compliance with due process and fundamental fairness!
For now, advocates should continue to vocalize their strong opposition to “how can we help our partners at DHS Enforcement” adjudication passing for justice at EOIR!
“Zhi Bo Chen petitions for review of an order of the Board of Immigration Appeals (BIA) affirming a decision of an Immigration Judge (IJ) that denied his applications for asylum, withholding of removal, and relief under the Convention Against Torture, and ordered him removed from the United States. The IJ’s decision was based, in part, on its finding that Chen was not credible. Because certain reasons for that credibility finding were erroneous, and because we cannot be confident that the IJ would have made the same determination absent those errors, Chen’s petition for review is GRANTED, the BIA’s decision is VACATED, and the case is REMANDED to the BIA for further proceedings consistent with this opinion.”
Gary Yerman, Esquire Managing Partner The Yerman Group NY, NY
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My favorite quote from the Circuit’s decision by Judge Raymond J. Lohier (Obama appointee): “We conclude that the IJ misidentified part of Chen’s testimony as inconsistent, improperly relied on trivial inconsistencies, and misconstrued as an omission a part of Chen’s testimony that comported with his Form I-589 asylum statement.”
But, even with all these glaring defects, the IJ’s findings were affirmed by the BIA without much, if any, critical analysis. What does this say about EOIR under AG Garland?
Credibility should be “bread and butter” for EOIR Judges and particularly the BIA. But, when the “culture” is “any reason to deny,” bad things happen!
As my Round Table colleague Hon. “Sir Jeffery” Chase commented: “You have to wonder what percentage of all BIA decisions contain significant errors.”
I think that’s a particular concern in unrepresented cases, which are much less likely to reach the Circuits. Additionally, the unduly restrictive legal standard for judicial review means that marginal BIA adverse credibility findings will often get “rubber stamp” affirmances from the Circuits.
Essentially, EOIR often denies the respondent “the benefit of the doubt” in close credibility cases and then the Courts of Appeals give the BIA “the benefit of the doubt.” So, it ends up being a “double whammy” for the respondent!
That’s why it is critical to have individuals effectively represented at the trial level!At each level thereafter, the law skews heavily in favor of the Government!
That also supports the position that “dedicated dockets” and “expedited dockets” that discourage and impede (one could argue intentionally) effective representation and full presentation of all the evidence should be held to be prima facie denials of due process!
It’s also why I argue that it’s so important that exceptionally well qualified experts with experience representing asylum seekers be appointed to these hugely important (yet widely ignored and under-appreciated) EOIR judgeships! Better judges would make the entire EOIR system fairer and more efficient, without sacrificing due process!
That’s also why appellate victories like this by Attorney Gary Yerman are so impressive and telling about the continuing dysfunction at EOIR!
Additionally, given the “loading of the system” against the respondent on credibility, the BIA has to REALLY screw up to get reversed, as they did in this case! That, in turn, raises a fundamental unresolved issue: Why is a Dem Administration running a specialized court system that all too often lacks the expertise and judgement to get “bread and butter” issues like this correct in the first instance?
It’s obvious that a BIA that goofs up cases like this is NOT providing the type of clear, expert guidance to IJs necessary to achieve due process and fundamental fairness on a continuing systemic basis! That should be of huge concern to everyone who values justice in America!
