Courts – Page 14 – immigrationcourtside.com

⚖️👩🏽‍⚖️ IMMIGRATION COURTS: ABOUT HALF OF THE 19 NEWLY-APPOINTED IMMIGRATION JUDGES HAVE EXPERIENCE REPRESENTING INDIVIDUALS BEFORE EOIR!

Here’s the official list with bios from EOIR:

https://lnks.gd/l/eyJhbGciOiJIUzI1NiJ9.eyJidWxsZXRpbl9saW5rX2lkIjoxMDAsInVyaSI6ImJwMjpjbGljayIsInVybCI6Imh0dHBzOi8vd3d3Lmp1c3RpY2UuZ292L2VvaXIvcGFnZS9maWxlLzE1ODM1MzEvZG93bmxvYWQiLCJidWxsZXRpbl9pZCI6IjIwMjMwNTEyLjc2Njc5NzYxIn0.JuSaHIpyovBHrDQUPD-sjQQccVOsekUbLd1QWO9w_Po/s/1130895796/br/190560600642-l

For my colleague Judge “Sir Jeffrey” Chase, Judge Maria Baldini-Potermin is the name that jumps out:

Maria T. Baldini-Potermin, Immigration Judge, Chicago Immigration Court

Maria T. Baldini-Potermin was appointed as an immigration judge to begin hearing cases in May 2023. Judge Baldini-Potermin earned a Bachelor of Arts in 1990 from the University of Dayton and a Juris Doctor in 1997 from the University of Minnesota Law School. From 2008 to 2023, she was the owner and managing attorney at Maria Baldini- Potermin and Associates PC in Chicago. During this time, from 2009 to 2023, she served as the author of “Immigration Trial Handbook,” a book she co-authored from 2008 to 2009. Also, from 2009 to 2021, she served as the update editor for “Immigration Law and Crimes” . From 2009 to 2021, she also served as a member of the board of directors of the National Immigration Project of the National Lawyers Guild, where she served as board chair and interim executive director in 2019. From 2007 to 2008, she was an associate immigration attorney at Gostynska Frakt Ltd., and from 2001 to 2007, at Scott D. Pollock and Associates PC in Chicago. From 1999 to 2001, she served as a National Association of Public Interest Law (NAPIL) Equal Justice Fellow with the Midwest Immigrant Rights Center (now National Immigrant Justice Center) in Chicago. From 1997 to 1999, she served as a NAPIL Equal Justice Fellow with the Immigrant Law Center of Minnesota (Oficina Legal) in Saint Paul, Minnesota. From 1996 to 1997, she served as an immigration law clerk at Guyton Law Office in Saint Paul, Minnesota. From 1994 to 1997, she trained law students at the Asylum Law Project in Minneapolis. From 1992 to 1994, she served as an accredited representative, and from 1991 to 1992, as a paralegal, with the South Texas Pro Bono Asylum Representation Project (ProBAR) in Harlingen, Texas. From 1990 to 1991, she served as a paralegal with the Brownsville Catholic Charities Canada Asylum Project in Brownsville, Texas. Judge Baldini-Potermin is a member of the Illinois State Bar and the Minnesota State Bar. She is admitted to practice before the U.S. Courts of Appeals for the Second, Fifth, Sixth, and Seventh Circuits, and the Supreme Court of the United States.

For me, it’s Judge Angela Munro whom I worked with on training for the Annual Conference during my time at EOIR:

Angela Munro, Immigration Judge, Boston Immigration Court

Angela Munro was appointed as an immigration judge to begin hearing cases in May 2023. Judge Munro earned a Bachelor of Arts in 2000 from Brown University, a Master of Arts in 2004 from the Fletcher School at Tufts University, and a Juris Doctor in 2008 from Northeastern University School of Law. From 2010 to 2023, she served as an attorney advisor at the Board of Immigration Appeals, EOIR. From 2008 to 2010, she served as a judicial law clerk at the Boston Immigration Court entering on duty through the Attorney General’s Honors Program. Judge Munro is a member of the Massachusetts Bar and the New York State Bar.

Another bio that caught my eye is Judge Hannah B. Kubica who once practiced at Joyce & Associates in Boston with my long-time friend and Round Table colleague Judge Bill Joyce.

Hannah B. Kubica, Immigration Judge, Boston Immigration Court

Hannah B. Kubica was appointed as an immigration judge to begin hearing cases in May 2023. Judge Kubica earned a Bachelor of Arts in 2005 from Vanderbilt University and a Juris Doctor in 2008 from the Villanova University Charles Widger School of Law. From 2016 to 2023, she was in private practice as an associate, and later as a senior associate, at McHaffey & Nice LLC in Boston where she represented noncitizens before EOIR and U.S. Citizenship and Immigration Services, Department of Homeland Security. During her time in private practice, she provided pro bono services at Rian Immigrant Center, formerly the Irish International Immigrant Center. From 2016 to 2011, she was in private practice as an associate at Joyce & Associates PC in Boston. From 2011 to 2008, Judge Kubica was in private practice at GNP Law Firm in the greater Boston area, and at Weir & Partners LLC in Philadelphia. Judge Kubica is a member of the Massachusetts Bar and the Pennsylvania Bar.

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Congrats and good luck to all of the new Judges. Remember: The job is about due process, fundamental fairness, practical scholarship, and best practices, NOT “pleasing your handlers” or making DHS Enforcement happy!

We’re “making progress” in getting more NDPA practical scholars on the Immigration Bench! But, we need even more to fundamentally change the culture at EOIR and to make due process the overriding mission, as it was supposed to be! So, NDPA’ers, keep those judicial applications coming!

🇺🇸 Due Process Forever!

PWS

05-13-23

🤯 BIA’S ANTI-ASYLUM JURISPRUDENCE CONTINUES TO TAKE A BEATING IN CIRCUITS — 1st Cir. Rejects Bogus “Changed Conditions” In Guatemala — 3rd Cir. Says No To BIA’s Bogus Jurisdictional Ruling For Asylee!

Kangaroos — Dems control the composition of one of the most consequential Federal Appellate Tribunals, the BIA. Is THIS really the look that they want to project?
https://www.flickr.com/photos/rasputin243/
Creative Commons License

Dan Kowalski reports for Lexis Nexis Immigration Community:

CA1 on Changed Country Conditions (Guatemala) – Mendez Esteban v. Garland

http://media.ca1.uscourts.gov/pdf.opinions/22-1215P-01A.pdf

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca1-on-changed-country-conditions-guatemala—mendez-esteban-v-garland#

“[T]he 2017 report and the testimony from Mendez do not — together or independently — establish that changes in Guatemala have fundamentally altered the specific conditions that gave rise to Mendez’s substantiated claim of political persecution. Accordingly, the BIA’s conclusion that DHS rebutted Mendez’s presumption of well-founded fear is not supported by substantial evidence. We therefore find Mendez statutorily eligible for asylum. … [W]e grant the petition for review as to Mendez’s claims for asylum and withholding of removal. We deny the petition as to Mendez’s claim for CAT protection. We accordingly affirm the denial of Mendez’s CAT claim, vacate the denials of Mendez’s political opinion-based asylum and withholding of removal claims, and remand to the IJ for further proceedings consistent with this opinion.”

[Hats off to Samuel Brenner, Emma Coreno, Patrick Roath and Rachel Scholz-Bright!]

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CA3 on Jurisdiction: Kosh v. Atty. Gen.

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca3-on-jurisdiction-kosh-v-atty-gen#

“Appellant Ishmael Kosh petitions us to review the order from the Board of Immigration Appeals (“BIA”) that terminated his asylum status and denied his applications for withholding of removal and protection under the Convention Against Torture. He maintains that the Department of Homeland Security (“DHS”) improperly sought to terminate his asylum status in asylum-only proceedings because he first entered the United States under the Visa Waiver Program. Per Kosh, that limiting program no longer applies to him, so he is entitled to complete-jurisdiction removal proceedings instead. In such unlimited proceedings, asylees can raise an adjustment-of-status claim as a defense to removal. We conclude that, if Kosh re-entered the country as an asylee without signing a new Visa Waiver Program form limiting his defenses, he is entitled to complete-jurisdiction proceedings. We thus grant his petition for review, vacate the BIA’s decision, and remand for further proceedings consistent with this opinion.”

[Hats off to Ben Hooper and Jonah Eaton!]

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As many practitioners know, the BIA’s continual bogus “fundamentally changed circumstances” findings for countries where the human rights conditions have remained abysmal for decades, certainly NOT materially improving, and in most cases in the Northern Triangle getting worse, are an endemic problem. Following a finding of past persecution, ICE, not the respondent, bears the burden of proof!

If that burden were honestly and expertly applied, considering individualized fear of harm, ICE would rebut the presumption by a preponderance of the evidence in only a minuscule percentage of cases. Certainly, that was my experience over 21 years on both the trial and appellate benches at EOIR.

Moreover, in this and most other cases of past persecution, even if ICE were able to satisfy its burden of rebutting the presumption of future persecution by a preponderance of the credible evidence, the respondent would be a “slam dunk” for a grant of discretionary asylum on the basis of “other serious harm.” It’s not clear that any of the three judicial entities that considered this case understood and properly applied the “other serious harm” concept.

The BIA’s chronic failure to fulfill its proper role of insuring a fair application of asylum and other protection laws and to provide guidance “shutting down” IJs who routinely manufacture bogus reasons to deny is a systemic denial of due process and failure of judicial professionalism. That it continues to happen under a Dem Administration pledged to restore the rule of law and due process for asylum seekers is astounding, deplorable, and a cause for concern about what today’s Dems really stand for!

This case should have been granted by the IJ years ago. An appeal by ICE on this feeble showing should have been subject to summary dismissal.

That cases like Mendez Esteban are still aimlessly kicking around Garland’s dysfunctional system in an elusive search for justice is a serious indictment of the Biden Administration’s approach to asylum and to achieving long overdue, life-changing, and readily achievable reforms that are within their power without legislative action. It also helps explain why Garland has neither reduced backlogs nor sufficiently improved professionalism, even with many more IJs on the bench.

Practical tips for fighting against bogus “presumption rebuttals” by IJs under 8 CFR 208.13:

Insist that the IJ actually shift the burden to ICE to rebut the presumption of future persecution based on past persecution.
Use the regulatory definition of “reasonably available” internal relocation to fight bogus IJ findings. For example, countries in the Northern Triangle are “postage stamp sized” and plagued by nationwide violence and corruption. The idea of “reasonably available internal location” under all the factors is prima facie absurd! (A “better BIA” would have already pointed this out in a precedent.)
Argue for a discretionary grant of asylum even in the absence of a current well founded fear based on 1) “compelling circumstances” arising out of the past persecution (“Chen grant”), and/or “other serious harm” under the regulations — a much broader concept than persecution that does NOT require nexus to a protected ground.

Knowing and using the law aggressively to assert your client’s rights, making the record, and exhausting all appellate options are the best defenses to biased, anti-asylum, often disconnected from reality denials of life-saving relief to your clients!

🇺🇸 Due Process Forever!

PWS

05-13-23

⚖️🗽🛡⚔️ ON A ROLL — ROUND TABLE ON THE WINNING SIDE FOR THE 3RD TIME @ SUPREMES! — Santos-Zacaria v. Garland — Jurisdiction/Exhaustion — 9-0!

Knightess of the Round Table — Somebody’s listening to our message! Too bad the Biden Administration doesn’t! It would save lots of time, resources, and lives if they did!

https://www.supremecourt.gov/opinions/22pdf/21-1436_n6io.pdf

JUSTICE JACKSON delivered the opinion of the Court.

Under 8 U. S. C. §1252(d)(1), a noncitizen who seeks to challenge an order of removal in court must first exhaust certain administrative remedies. This case presents two questions regarding that statutory provision. For the rea- sons explained below, we hold that §1252(d)(1) is not juris- dictional. We hold further that a noncitizen need not re- quest discretionary forms of administrative review, like reconsideration of an unfavorable Board of Immigration Appeals determination, in order to satisfy §1252(d)(1)’s exhaustion requirement.1

. . . .

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Read the full opinion at the link.

So, why is a Dem Administration under AG Garland taking anti-immigrant positions that can’t even garner a single vote on the most far-right Supremes in recent history?

Incredibly, the DOJ made the absurdist argument that, in violation of the statute, an additional unnecessary layer of procedural BS should be inflicted on individuals already dealing with the trauma of a dysfunctional system running a 2 million plus backlog and a BIA with more than 80,000 un-adjudicated appeals at last count! Where’s the common sense? Where’s the competence? Where’s the “better government” that the Biden Administration promised?

Meanwhile, our Round Table continues to put our centuries of collective experience in due process, fundamental fairness, and practical problem solving to use! The Biden Administration might not be paying attention. But, many others, including Article III Judges, are taking advantage and listening.

🇺🇸 Due Process Forever!

PWS

05-12-23

⚖️ SPLIT 6th CR. WHACKS BIA ON LANDOWNERS AS PSG! — Turcios-Flores v. Garland

Four Horsemen — BIA Asylum Panel In Action. Garland’s largely “holdover” BIA continues to align itself with Trump’s extreme right, nativist judges, as the progressives and advocates who actually supported Dems in the last two elections are left to stew, along with their dehumanized asylum seeking clients.
Albrecht Dürer, Public domain, via Wikimedia Commons

Dan Kowalski reports for LexisNexis Immigration Community:

CA6 on PSG: Turcios-Flores v. Garland (2-1)

https://www.opn.ca6.uscourts.gov/opinions.pdf/23a0094p-06.pdf

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca6-on-psg-turcios-flores-v-garland-2-1#

“Under the correct analysis, the record here compels a conclusion that Honduran rural landownership in this case is a common fundamental characteristic because Turcios-Flores should not be required to change this aspect of her identity to avoid persecution given the demonstrated importance of landownership to her. Therefore, we remand to the Board for further explanation of whether this group meets the social distinction and particularity requirements as well as the remaining asylum considerations.”

[Hats off to Justin S. Fowles and Samuel W. Wardle!]

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

To reach their wrong conclusion that “rural landowners” are not a “particular social group,” the BIA ignored its own precedent. See, e.g., Matter of Acosta, 19 I&N Dec. 211, 233 (BIA 1985), modified on other grounds.

The BIA also took an (all too typical) “ahistorical” approach. They ignored the powerful connection between various types of land and property ownership in society and classic historical examples of extermination and persecution. Indeed, millions of dead kulaks persecuted and liquidated by Stalin would be astounded by the BIA’s horribly flawed, “any reason to deny,” analysis. See, e.g., https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwiTv6qnsun-AhWARzABHW3rACUQFnoECC4QAQ&url=https://www.historyplace.com/worldhistory/genocide/stalin.htm&usg=AOvVaw0xlIU36bw6-wmabscwSXT5.

Class warfare and persecution of property owners was at the heart of most Marxist-Leninist Communist dictatorships.

Remarkably, under Garland, the BIA continues to parrot the same biased, restrictionist nonsense spouted by the Trumpist dissenter in this case, Judge Chad A. Readler. He was roundly criticized as unqualified by Democrats and advocates at the time of his nomination. This opposition had lots to do with his biased, anti-immigrant views flowing from his then “boss,” nativist/racist former AG Jeff “Gonzo Apocalypto” Sessions!

For example, it’s worth reviewing the comments of the Alliance for Justice on Reacher’s nomination:

On June 7, 2018, President Trump announced his intention to nominate a Justice Department official, Chad Readler, to the Sixth Circuit Court of Appeals. This announcement was particularly striking for one notable reason: on that very day, Readler had become a leader in the Trump Administration’s fight to destroy the Affordable Care Act and the protections it offers to millions of Americans. Readler, as acting head of the Civil Division, filed a brief to strike down the ACA, including its protections for people with preexisting conditions. If Readler and the Trump Justice Department are successful, the ACA’s protections for tens of millions of people, including cancer patients, people with diabetes, pregnant women, and many other Americans, would be removed.

As the acting head of the Department of Justice Civil Division under Attorney General Jeff Sessions, Readler defended the Trump Administration’s most odious policies, including separating immigrant children from their parents at the border, while claiming that “[e]verything that the Attorney General does that I’ve been involved with he’s . . . being very respectful of precedent and the text of the statute and proper role of agencies.”

His track record is equally atrocious in other respects. He has tried to undermine public education in Ohio; supported the efforts of Betsy DeVos to protect fraudulent for-profit schools; fought to make it harder for persons of color to vote; advanced the Trump Administration’s anti-LGBTQ and anti-reproductive rights agenda; fought to allow tobacco companies to advertise to children, including outside day care centers; sought to undermine the independence of the Consumer Financial Protection Bureau; and advocated for executing minors.

Chad Readler’s record of diehard advocacy for right-wing causes suggests he will be anything but an independent, fair-minded jurist. Alliance for Justice strongly opposes Readler’s confirmation.

https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwjp353GtOn-AhWnjLAFHRjxAKYQFnoECCMQAQ&url=https://www.afj.org/nominee/chad-readler/&usg=AOvVaw1vd0ZxlEMALaM-lfJNn6bq

It’s remarkable and infuriating that once in office, Democrats in the Biden Administration have aligned themselves with the toxic views of extreme, nativist right wing judges whose xenophobic, atrocious views they campaigned against! They have done this in a huge “life or death” Federal Court system that they completely control and have authority to reform without legislation!

🇺🇸 Due Process Forever!

PWS

05-10-23

⚖️ AFTER STRING OF CIRCUIT DEFEATS, BIA FINALLY BACKS DOWN ON “EQUITABLE TOLLING” — Sort Of! — Matter of Morales-Morales, 28 I&N Dec. 714 (BIA 2023)

https://www.justice.gov/eoir/page/file/1582681/download

Matter of Morales-Morales, 28 I&N Dec. 714 (BIA 2023)

BIA Headnote:

(1) The Board of Immigration Appeals has authority to accept what are otherwise untimely appeals, and consider them timely, in certain situations because 8 C.F.R. § 1003.38(b) (2022) is a claim-processing rule and not a jurisdictional provision. Matter of Liadov, 23 I&N Dec. 990 (BIA 2006), overruled.

(2) The Board will accept a late-filed appeal where a party can establish that equitable tolling applies, which requires the party to show both diligence in the filing of the notice of appeal and that an extraordinary circumstance prevented timely filing.

FOR THE RESPONDENT: Mario Salgado, Esquire, San Francisco, California

BEFORE: Board Panel: WETMORE, Chief Appellate Immigration Judge; MULLANE and MANN, Appellate Immigration Judges.

MULLANE, Appellate Immigration Judge [Opinion]

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Notably, but perhaps predictably for those who follow the BIA’s generally “respondent/due process unfriendly” jurisprudence, the “good news” that the BIA has belatedly decided to follow the 2d, 5th, and 9th Circuits on equitable tolling is “tempered” by the result in this case — denial of the motion to reconsider and accept the appeal!

Evidently, among its 82,000+ backlog, the BIA was unable to identify a case where correctly applying equitable tolling would actually BENEFIT the respondent, rather than just requiring a different, largely contrived, analysis to “get to no!” This continues a depressing and highly inappropriate long-standing tendency of the BIA to provide negative examples of how to apply potentially remedial rules.

Presumably, after 17 years of the BIA’s wrong-headed precedent Matter of Liadov, everyone understands that the BIA is “programmed to deny.” What’s needed is “reprogramming” to recognize and grant motions based on “equitable tolling.”

It’s also remarkable that the “highest tribunal” of a dysfunctional organization, notorious for losing files; failing to provide timely, correct notice; cancelling hearings without notice on the hearing date; switching Immigration Judges without notice in a system where the identity of the judge is too often “outcome determinative;” and “cutting” DHS and itself almost endless “breaks” and “exceptions” for their sloppy, lazy, and sometimes ethnically questionable practices sees fit to “pontificate” so self-righteously on what’s “due diligence” and “extraordinary circumstances” for the private bar. The “message” is pretty clear: Denial is the “preferred” (or default, or de facto presumed) result!

If either of the foregoing concepts were applied to EOIR and DHS with the same stringency they are to individuals and their representatives, both agencies would have been forced out of business long ago!

This system is totally screwed up! Dems must ask themselves why Garland and his senior leadership have failed to “unscrew it,” and what can be done to deal with their democracy-and-life-threatening indolence and inattention to quality jurisprudence, due process, fundamental fairness, and best practices.

🇺🇸 Due Process Forever!

PWS

05-08-23

REPORT FROM KC: Round Table’s Judge Sue Roy Demonstrates Direct Examination of “Cinder F. Rella” (AKA Michelle Saenz Rodriguez)

Cinder Rella — Cinder F. Rella Direct
Sharma-Crawford Trial College
Johnson County Community College
May 5, 2023

Trial College Faculty Celebrates Another Day of Teaching Extraordinary Lawyers To Be Strong, Smart, Fearless!
May 5, 2023

Trial College Happy Ending — Trial College Grads Produce Happy Endings and Grateful Clients!

After just three days of intensive study and engagement at the Sharma Crawford Trial College, immigration litigators actually look and feel different!

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Such an honor and pleasure to be a part of this distinguished and dedicated group.

To quote my faculty colleague Sarah Owings, “The world and the work are less lonely knowing you are all out there!” I think everyone else feels the same way, Sarah, my friend!

🇺🇸Due Process Forever!

PWS

05-06-23

🤯 FORMER EMPLOYEE’S EXPLOSIVE FEDERAL COURT ALLEGATIONS: NOT EVERYONE IN EOIR MANAGEMENT FOCUSED ON “GUARANTEEING FAIRNESS & DUE PROCESS!”

“Lust and Avarice”
MET DP871968.jpg
Print
Thomas Rowlandson
Creative Commons Zero, Public Domain Dedication

This item was originally reported by Bloomberg Law. From the complaint in Escoto v. Garland, USDC CD CA:

Escoto v Garland

INTRODUCTION

1. Plaintiff CLAUDIA ESCOTO, while working as a Staff Assistant to Assistant Chief Immigration Judge Scott Laurent was subjected to egregious and continual sexual harassment, including Judge Laurent describing in graphic detail other judges and employees he wanted to have sex with, or had sex with, in what positions he wished to have sex and in what manner. Judge Scott Laurent discussed in lurid detail the physical attributes of attorneys who came before him to represent litigants and the government and further discussed attraction to and/or sexual relations with other judges. Judge Laurent regularly subjected Plaintiff to rambling diatribes regarding the breasts, attractiveness and whether he deemed the female attorneys and judges “fuckable.” Judge Laurent also regularly discussed female colleagues and employees in a degrading and sexual manner, discussing in graphic detail who he wanted to have sex with, the physical attributes of female employees and judges. Judge Laurent engaged in this conduct even when in judge’s robes when on the bench. Judge Laurent subjected Plaintiff to graphic description of sexual relations he was having with his wife and other women, including during what was supposed to be work hours.

2. Judge Laurent touched Plaintiff without her consent in a sexual manner, repeatedly placing his hand on Plaintiff’s upper leg when she traveled in a car with him, and ensuring his right arm touched her breasts. This was unwelcome and deeply disturbing to Plaintiff.

3. Judge Laurent further demeaned Plaintiff’s sexual orientation, claiming he could turn her straight (referring to his supposed sexual prowess if Plaintiff had sexual relations with him), referred to Plaintiff’s wife’s breasts and attractiveness and demanded that Plaintiff come “sit on Daddy’s lap,” referring to himself as “Daddy.” He would also proclaim “I can turn you straight, Baby!”

4. Judge Laurent’s conduct caused Plaintiff severe emotional impacts, including causing fainting spells, among other severe reactions. Plaintiff requested a medical leave, during which time

Judge Laurent continued to contact Plaintiff to pressure her to work. He denied Plaintiff’s extension of leave, improperly placing her on AWOL status, even though Plaintiff had leave time. Plaintiff requested a reasonable accommodation of reassignment to a different supervisor where she would not be subjected to this egregious sexual harassment. This request was denied by Defendant. Defendant then acted on Judge Laurent’s recommendation to fire Plaintiff shortly after receiving Plaintiff’s complaints of sexual harassment, discrimination, and retaliation, having taken no actions to address Plaintiff’s complaints, other than to fire her.

5. Judge Laurent’s actions show no respect for the sacred office he holds, demean the entire justice system, and turn what should be a model employment environment into a cesspool, where Plaintiff was made to endure an onslaught of sexual comments and sexual advances, ultimately being fired when she had the bravery to come forward. Plaintiff CLAUDIA ESCOTO, as well as the justice system itself, deserved so much better. Defendant must be held to account.

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These are only unproven allegations in a court complaint at this point! But, if any of this is true, it would confirm that there are some deep “cultural” issues at EOIR that leadership has not dealt with.

“Expedited/dedicated dockets” and other “haste make waste” nonsense that misses the mark at EOIR aren’t going to solve systemic issues affecting due process and fundamental fairness for the millions whose lives and futures are pending in our broken and dysfunctional Immigration Courts!

🇺🇸 Due Process Forever!

PWS

05-04-23

⚖️🗽🇺🇸 TRUTH: YOU’VE HEARD THE ALARMIST NATIVIST MYTHS ABOUT ASYLUM FROM THE GOP & (IRONICALLY) THE BIDEN ADMINISTRATION & SOME DEMS: NOW, GET THE FACTS ABOUT ASYLUM & THE BORDER FROM ALIANZA AMERICAS!

“Fear & Loathing”
Inept, disingenuous performances on asylum by the White House, DHS, & DOJ have left the Biden Administration grasping at straws and spreading vile nativist myths about asylum seekers at the border.
PHOTO: Creative Commons

Deterrence and increased enforcement have proven to be failed approaches that do not change the multiple factors that force so many people to flee their countries and only result in pushing people into more dangerous routes that allow criminal organizations to thrive, resulting in the smuggling, trafficking, extortion, and kidnapping of migrants and others.

Download the AA Fact Sheet here:

https://docs.google.com/document/d/1eihlegCrk1Lf-08aDhL8p-fvj_GQGxZ7PYgm-MUcF1s/edit

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After more than two years of bumbling around, in the process squandering their access to the ideas and problem-solving skills of an un-precedented “brain trust” of immigration experts, the Biden Administration appears to be in “full panic mode” as the inevitable lifting of the Title 42 charade slowly approaches. Notably, a Federal Court ordered the Administration to make good on its (already delayed) promise to end Title 42 back in November 2022. But, the Supremes unethically blocked that order — granting a stay that NO ACTUAL PARTY to the litigation requested, in a simply mind-boggling exercise of politicized, unconstitutional interference with the Executive.

Instead of using the time to 1) work with NGOs, 2) hire and train more expert asylum officers, 3) replace the BIA and anti-asylum Immigration Judges with qualified human rights/due process experts, and 4) drastically ramp up the refugee admission system outside the U.S. (not substituting an inadequate and “jury rigged” numerically limited “parole” program for legal refugee and asylum admissions), the Administration frittered away the opportunity with obstructionist/restrictionist nonsense. Now, they are “running scared” from desperate refugees merely seeking to exercise their legal rights that have been illegally and immorally denied to them for years — by successive Administrations.

🇺🇸 Due Process Forever!

PWS

05-03-23

⚖️🗽 TWO MORE (PREVIOUSLY) UNHERALDED ASYLUM VICTORIES FOR CENTRAL AMERICAN WOMEN! — From Colorado & NY Immigration Courts!

Pooja Asnani reports from Sanctuary For Families NY:

Hi all,

I wanted to share a recent asylum grant won by my colleagues, Deirdre Stradone, Amalia Chiapperino, and Kelly Becker-Smith, before IJ McKee at the NYC immigration court.

Client is Honduran Garifuna woman who survived DV and gang violence, and, importantly for the grant of asylum, forced sterilization. Below is a quick summary of the case, and I’m highlighting this asylum grant because our team, specifically Deirdre, has been seeing more and more cases of forced sterilization among Central American women.

Respondent is a forty-five-year-old Honduran Garifuna woman who has been the victim of forced sterilization, severe verbal, physical, and sexual violence, robbery and death threats by gang members, and intentional deprivation of law enforcement assistance and medical attention due to her race and gender. Overwhelming evidence affirms the horrific practice of forced sterilization against Garifuna women, as well as the high levels of domestic and gang violence in Honduras that take place with impunity. The evidence shows that government authorities largely fail to respond to complaints of abuse, or when they do respond, fail to do so effectively.

Deirdre has been collaborating with the Mt. Sinai Human Rights program to study the forced sterilization of Central American women, a topic she had encountered over and over again in her asylum cases, with the researchers agreeing that this particular violation of human rights is likely more common than is being research and reported. Deirdre has found several reports and studies conducted regarding indigenous, mainly Garifuna, women living with HIV who have been victims of this practice. As you all probably know, and stemming from the response to China’s one-child policy, forced sterilization is defined in the Immigration and Nationality Act (“INA”) as “per se persecution on account of political opinion.”

I wanted to share this because we’re realizing that that it may be a more wide-spread practice than we initially thought, and often times, clients don’t even realized they have been sterilized when they come to us. We have been asking specific questions about this in our intakes, and often have been sending our clients to get a medical evaluation to determine whether they have been sterilized. Unfortunately, we have had a several clients discover in the course of our representation that they had been sterilized without their consent, and we believe that many other women may have experienced this without realizing.

While we have worked on several cases with similar facts, but interestingly, this is the first asylum case we have had were the IJ (McKee) granted specifically based on the forced sterilization claim (political opinion), and not on the ARCG DV claim.

Our team at Sanctuary is working to put together a training to help issue-spot, discuss common fact patterns, and how to prepare and brief these cases; stay tuned for more details.

CC’ing the team who worked on this case, including Deirdre, if folks have questions.

Thanks,

Pooja

Deirdre Stradone
Attorney
Sanctuary for Families NY

Kelly Becker-Smith
Attorney
Sanctuary for Families NY

Amalia Chiapperino
Sanctuary for Families NY

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Dan Kowalski reports from LexisNexis Immigration Community:

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/asylum-victory-in-colorado-indigenous-guatemalan#

Christina Brown writes: “I wanted to share the attached decision in case it is helpful to others. IJ Burgie granted the asylum claim of an indigenous Guatemalan applicant finding past persecution based on severe economic deprivation (DHS failed to rebut). She also granted based on a pattern and practice of severe economic persecution of indigenous Guatemalans.”

[ICE did NOT appeal. Hats way off to Christina Brown!]

Christina Brown ESQ

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

Many congrats and much appreciation to all involved!

Even as the Biden Administration and GOP nativists push their “big myth” that most seeking asylum at the Southern Border are “mere economic migrants” not “true refugees,” these results from those fortunate enough to have expert lawyers, fair Immigration Judges, and reasonable time to prepare, document, and present continue to show the intellectual and moral bankruptcy of the racially-biased restrictionist claims. Indeed, to get to the “any reason to deny” nonsense, which also is often mis-employed by the BIA, one has to intentionally ignore or misconstrue both the real country conditions in the Northern Triangle and the inclusive “at least one central reason” mixed motive language of the INA.

These are NOT “one offs!” No, they are actually recurring situations! A properly functioning, fair, expert BIA, committed to a correct and generous interpretation of asylum laws, would have incorporated these and other recurring “grant” situations into a series of binding precedents. These, in turn, would allow lawyers, Asylum Officers, IJs, and ACCs to recognize and prioritize these cases for “fast track grants.”

That, in turn, would enable many asylum applicants to be timely admitted in legal asylum status, work authorized, and on the way to green cards and naturalization. Significantly, it would also avoid the largely self-created, self-aggravated, ever-growing EOIR backlogs that seem to “drive” the “haste makes waste,” sloppy, “any reason to deny” decision-making that still exists throughout our broken and biased asylum system.

The REAL problem here its that meritorious cases like or similar to these that require expert recognition, proper preparation and documentation, and officials committed to “protection not rejection,” are likely to be summarily rejected and wrongfully pushed back across the border by the “Biden/Miller Lite” procedures and toxic official attitudes toward asylum now being promoted by both the Administration and the GOP.

It’s disturbingly clear that the needed positive changes in the immigration legal system are NOT “coming from the top” in the Biden Administration. Consequently, in addition to recruiting, training, and mentoring ever more members of the NDPA (including non-attorney accredited representatives), to hold the system accountable, it is ESSENTIAL that we get more NDPA “practical experts” on the Immigration Bench to spread and force due process, fundamental fairness, and best interpretations/practices on a resistant system from the “retail level” — the “grass roots” if you will.

That requires that NDPA experts with the qualifications apply for Immigration Judge vacancies en masse! You can’t be selected if you don’t apply! And, without better Federal Judges at all levels not only will injustice continue to prevail for immigrants, but our entire democracy will be imperiled! Better judges for a better America!

Yes, as I have acknowledged in prior posts, EOIR can be a tough place to work. But, human lives and the future of our democracy depend on our changing the system, from “the bottom up” if that’s the only way. This system is too important, with too much at stake, to be left to the whims and false agendas of tone-deaf politicos and inept, “go along to get along” bureaucrats!

🇺🇸Due Process Forever!

PWS

05-02-23

“WISCONSIN SPRING”

On my way to the Sharma-Crawford Clinic Litigation Trial College in Kansas City, May 4-6, 2023!

🇺🇸 Due Process Forever!

PWS😎

05-01-23

🤯 JUSTICE ON THE ROCKS! ☠️ THE GOP HAS CORRUPTED THE FEDERAL JUDICIARY, WHILE THE DEMS CAN’T BRING DUE PROCESS AND QUALITY TO THE LARGE JUDICIARY THEY “OWN!” — Latest Rebuke By 5th Shows EOIR’s Sloppiness, Misrepresentations, Misconstructions, DOJ’s “Defense Of the Indefensible” In Quest To Deny Asylum To Refugees! — Recent Reports On “Management” & “Leadership” Deficiencies Show “The Wheels Are Coming Off The EOIR Circus Wagon!” 🤡

injustice — Injustice
Public Realm
Dems spend lots of time whining about the destruction of the Federal Judiciary by GOP right-wing extremists. However, after two years in charge, they have done little to bring due process, fundamental fairness, and judicial expertise to America’s worst courts — the Immigration Courts — which they totally control!

The 5th Circuit didn’t mince any words in its latest (inexplicably) unpublished, 24-page takedown of EOIR’s ridiculous “judicial” failure with lives at stake!

https://www.ca5.uscourts.gov/opinions/unpub/20/20-60133.0.pdf

. . . .

Based on all of the evidence as a whole, and in light of the applicable caselaw, Reyes-Hoyes has made a compelling case of persecution. Nevertheless, we find a remand is necessary because the BIA did not make a determination as to Reyes-Hoyes’s credibility. The BIA did not mention credibility in its decision or express any doubts about the truth of Reyes- Hoyes’s testimony. The IJ did express some doubts about Reyes-Hoyes’s credibility, although he did not explicitly find her uncredible and ultimately stated he was not denying relief “based on a lack of sufficiency of proof.” However, the BIA did not adopt the IJ’s decision and thus did not incorporate any of the doubts the IJ had. “Generally speaking, a court of appeals should remand a case to an agency for decision of a matter that statutes place primarily in agency hands.” I.N.S. v. Orlando Ventura, 537 U.S. 12, 16 (2002). If Reyes-Hoyes is credible, she has shown persecution, but the credibility determination must be made by the factfinder, not by this court on appeal. See 8 U.S.C. § 1158(b)(1)(B)(iii); Avelar-Olivia v. Barr, 954 F.3d 757, 767 (5th Cir. 2020). Accordingly, the decision of the BIA is vacated in part, and we remand to the BIA for a determination on credibility.

. . . .

In sum, we conclude that, if Reyes-Hoyes is credible, the record compels the conclusion that Reyes-Hoyes suffered harm rising to the level of past persecution, but we remand for the BIA to consider her credibility in the first instance. We also conclude that the record compels the conclusion that safe internal relocation to parts of Guatemala—Mesata and Raul—was not possible. Additionally, we hold that the BIA procedurally erred in the remainder of its analysis concerning whether internal location was reasonable and whether Reyes-Hoyes had shown state action by not meaningfully considering the relevant substantial evidence.

. . . .

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

Here is my immediate reaction when Dan Kowalski at LexisNexis sent me the decison:

Wow! This is an EOIR/OIL error fest — replete with misrepresentations and mischaracterizations! Totally sloppy work! Why won’t they publish this? It’s a perfect example of how Garland has failed to get the job done!

And, here’s the reaction from my friend and Round Table Colleague “Sir Jeffrey Eagle Eyes” Chase:

24 pages; very detailed analysis of recurring asylum issues. Should certainly have been published.

BTW, please note footnote 9, an example of the ongoing problem with the government’s online regs continuing to list the enjoined “death to asylum” regs that the previous administration tried to push through. The Fifth Circuit continues to believe that the internal relocation reg was amended effective January 19, 2021. Have cases been decided based on this erroneous belief?

Lest you doubt the “complete FUBARness” of EOIR, check these out:

EOIR ranked 420 out of 432 in list of USG “Best Places to Work” (97th percentile) https://naij-usa.us20.list-manage.com/track/click?u=fb6095c093c4ba52c1a1f5cec&id=e8849a6c94&e=a00508cc44;
Second worst component of DOJ;
Worst of all the small and mid-sized agencies ranked;
While the “curve” for “subagencies” has gone up since 2007, EOIR’s score has cratered, plunging dramatically during the Trump years;
EOIR ranked at or near the bottom on key metrics, including, significantly, “leadership style” (some of the “credit” for this abysmal score should go to DOJ, which has failed to provide dynamic, due-process-oriented leadership over the last six years);
GAO study just cited EOIR for a number of management deficiencies including “blowing off” “our [GAO’s] 2017 recommendation to develop a strategic workforce plan to address current and future staffing needs, EOIR hasn’t done so—even though it had a significant and growing backlog of 1.8 million pending cases at the start of FY 2023, more than triple the number that it had in FY 2017.”
The NAIJ continues to raise technology and health and safety defects with EOIR “management;”
Notably, during this period of abject failure, EOIR has found time and resources to waste (and potential “goodwill” to squander) on unneeded nonsense like “IJ Dashboards,” “production quotas,” “expedited dockets,” more layers of bloated headquarters bureaucracy, and, perhaps the biggest boondoggle of all, a totally absurd and duplicative “Office of Policy” for an agency that has demonstrated a disturbing inability to carry out its “core function:” Providing Due Process for all through fair, timely, expert, correct adjudications!

EYORE — “Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up” — As Dems founder in their commitment to restore justice, could new Immigration Judges from the NDPA — unswervingly committed to due process, fundamental fairness, and best practices — get this poor little fella back on his feet and improve the culture and atmosphere at the “retail level” of EOIR, even in the face of indifference and incompetence from those in charge? Lives and futures — perhaps the future of our democracy — are at stake!

What we really need is a “lean, not mean, due process machine” @ EOIR. Why can’t the Dems deliver? That’s the age-old question among human rights experts!

🇺🇸 Due Process Forever!

PWS

04-30-23

🤯 THEY JUST CAN’T GET IT RIGHT! — Biden Administration Combines Some Improvements In Refugee Processing Abroad With Cruelty & Mockery Of Asylum Law At The Border — “People seeking asylum at United States borders will be subjected to fast-track credible fear interviews while in Border Patrol custody and barred under the asylum ban, fueling wrongful deportations to persecution and torture.”

Eleanor Acer
Senior Director for Refugee Protection, Human Rights First

https://humanrightsfirst.org/library/human-rights-first-welcomes-resettlement-condemns-bars-to-asylum-seekers/

Human Rights First Welcomes Resettlement, Condemns Bars to Asylum Seekers

WASHINGTON – Human Rights First welcomes today’s announcement of the Biden administration’s plans to expand refugee resettlement and family reunification parole in the Americas while reiterating the organization’s call for the administration to abandon its planned asylum ban and the conduct of fast-track credible fear interviews in Border Patrol custody.

“The Biden administration is rightly expanding refugee resettlement from the Americas, an overdue step towards addressing a long-standing gap for people in need of international protection,” said Senior Director of Refugee Protection Eleanor Acer. “This initiative should swiftly bring refugees to safety and not be used to reduce the resettlement of refugees from other regions. The Biden administration should focus on measures like increasing refugee resettlement and regular pathways and abandon its plan to impose an asylum ban that would be a legal, moral, and political mistake.”

In today’s announcement, the Biden administration confirmed its plans to implement its proposed ban on asylum, which would violate U.S. and international refugee law and has sparked widespread opposition from faith leaders, civil rights organizations, unions, and many Members of Congress. People seeking asylum at United States borders will be subjected to fast-track credible fear interviews while in Border Patrol custody and barred under the asylum ban, fueling wrongful deportations to persecution and torture.

“The Biden administration rightly ended and should not resurrect Trump-era policies that conduct credible fear interviews in Border Patrol custody where access to legal counsel is restricted,” Acer said. “This due process disaster, along with the imposition of the planned asylum ban, will be a sham process for deporting refugees who qualify for asylum. Instead of implementing policies that punish people seeking asylum, the United States should lead in upholding refugee protections and human rights.”

Human Rights First and other groups have long urged the U.S. government to step up refugee resettlement from the Americas and offer safe pathways for migration. We recommend the Biden administration focus on transformational steps like increasing refugee resettlement and regular pathways and maximizing asylum capacity at ports of entry rather than pursuing its misguided plan to impose a new bar on asylum.

Today’s announcements are part of the Biden administration’s plans to address regional migration and initiate punitive policies as the use of the Title 42 public health order ends on May 11. Human Rights First has repeatedly documented human rights abuses inflicted by the Title 42 policy, including over 13,000 attacks against migrants and asylum seekers blocked in or expelled to Mexico under Title 42 during the Biden administration. The organization has also repeatedly detailed the harms and violations of law that would be caused by the Biden administration’s proposed ban on asylum.

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

The “official” DHS statement can be found here: https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/dhs-dos-announces-sweeping-new-actions-to-manage-regional-migration.

To me, the DHS/DOS statement (referenced by HRF) sounds like folks who expect to fail, want to “tamp down” expectations, and intend to blame the victims (asylum seekers and their advocates) and Congress for their (likely) failure.

Almost everybody agrees that reforms in our immigration system are overdue. But, there is no agreement whatsoever in Congress on what those reforms should be, as shown by the absolutely insanely “bonkers” proposal from the House GOP which seeks to make everything infinitely worse!

So, we’re not going to get the needed expansions and simplification of our legal immigration system, including more generous treatment of refugees and asylum seekers, in the foreseeable future. That’s not a surprise! After two plus years in office, the Biden Administration should have foreseen the obvious and come up with ways to make the current law work.

As almost any expert will tell you, our existing legal asylum system can be made to work in a fair, timely, and reasonable manner at the borders. But, that’s not going to happen with the current personal, poor leadership, bad attitudes, lousy precedents, and a badly failed Immigration Court system.

A fair, functional, properly run asylum system, in conjunction with a robust realistic overseas refugee program, will result in more individuals being admitted into the U.S. as legal immigrants through the refugee and asylum processes. That’s how they are supposed to work (but generally have not) as key components of our legal immigration system.

It’s also a fulfillment of our important international obligations that we intentionally took on after our questionable performance on Jews fleeing Europe just prior to, and even during, WWII. While we can absorb, even need, more legal immigrants, Administrations don’t want to admit and deal with the obvious. Forced refugee migrations aren’t going to disappear any time in the foreseeable future, much as politicos of both parties might want them to!

Yes, these are legacies of the Trump Administration, and, to a lesser extent, the Obama Administration. But, one of the reasons why the Biden Administration is in office is to make things work, not just to whine and wring their hands.

Sure, the Trump Administration undermined the rule of law (and, I might add, largely got away with it). But, that’s no excuse for Biden and Harris not to have listened to experts (like, for example, Eleanor Acer), replaced personnel at DHS and DOJ with “practical experts” who can get the job done, and established at least a working operational framework for a successful, orderly, refugee and asylum admission system. Over-relying on coercive and inhumane detention, denial-oriented decision-making, bogus bars to asylum, criminal prosecutions, threats, and a dysfunctional Immigration Court system are NOT that framework.

Of course the Administration’s proposals to increase refugee admissions, reprogram resources, and develop a better resettlement program for refugees and asylees in the U.S. are good ideas. But, they are basically “no brainers” that HRF and other experts urged even before “day one” of this Administration. They should be in place and operating by now! We’ll see how much due process and fairness this Administration can actually deliver, or whether their proposed solutions devolve into yet another “uber-enforcement fueled” fiasco with the most vulnerable humans as the victims!

🇺🇸 Due Process Forever!

PWS

04-28-23

🇺🇸🦸🏽‍♀️🏆 NDPA LEADERBOARD: Professor Paulina Vera (GW Law) Joins Dean Kevin Johnson & Other Distinguished “Practical Scholars” On Hispanic National Bar Association (“HNBA”) National Task Force on Hispanic Law Faculty and Deans!

Paulina writes:

Excited to announce that I will be part of the Hispanic National Bar Association (HNBA) National Task Force on Hispanic Law Faculty and Deans! I am honored to be included in a group of Latine law professor giants, whom I have long admired. I look forward to continuing working on a personal passion of mine, which is diversifying the legal profession and legal academia. ¡Adelante!

Press release available here:

FOR IMMEDIATE RELEASE: April 24, 2023 Contact: Communications@HNBA.com

The Hispanic National Bar Association Launches New Task Force on

Law Faculty and Deans

Washington, DC – The Hispanic National Bar Association (HNBA) announces the launch of the first-of-its-kind National Task Force on Hispanic Law Faculty and Deans, aimed at addressing the alarming lack of Hispanic/Latino representation among U.S. law school professors and administrators (including deans), as well as the shortage of professional development resources specifically for Hispanic/Latino professors, deans, and other administrators already in the legal academy.

According to the most recent ABA Profile of the Legal Profession, only 5.8% of lawyers in the U.S. are Hispanic/Latino, even though we constitute over 19% of the general population. The shortage of Hispanic/Latino lawyers across the nation mirrors the paucity of Hispanics in legal academia. Only 9 of the almost 200 deans of ABA-accredited law schools in the 50 states and the District of Columbia are Hispanic/Latino. Estimates have the percentage of full-time Hispanic/Latino law professors at only 5%.

Hispanic/Latino law professors and law school deans are leaders of the profession and play seminal roles in educating future generations of lawyers and law-related professionals. Legal educators are visible role models and mentors to young people aspiring to careers in law. In addition, Hispanic/Latino legal academics – like other legal academics – frequently are tapped for senior government appointments, judgeships, and other key roles in our democracy. The urgency of this initiative is heightened further by the U.S. Supreme Court’s looming affirmative action decision, which threatens to make the shortage of Hispanic/Latino law students, lawyers, and legal academics even worse.

HNBA President Mariana Bravo has appointed as Co-Chairs of the Task Force Raquel M. Matas and Anthony E. Varona. Raquel Matas is the former Associate Dean for Administration at the University of Miami School of Law and has served as HNBA’s National Law School Liaison. Anthony E. Varona is Dean and Professor at Seattle University School of Law, the first law school dean of Hispanic/Latino heritage of any law school in the Pacific Northwest of the United States. Varona was the first Hispanic/Latino dean at University of Miami School of Law, where he was appointed dean emeritus after the conclusion of his deanship.

President Bravo said, “An increase in the number of Hispanic/Latino law professors and law school deans will translate into an increase in law school enrollment by Hispanic and Latino/a students inspired by educators who hail from their same communities, share their backgrounds and struggles, and in many cases, share a bilingual heritage. The work of this Task Force is long overdue, and I am delighted that former Associate Dean Matas and Dean Varona, with many decades of distinguished nationally recognized service in legal education between them, will lead us in this important work.”

The Task Force will oversee the development of annual summer nationwide online workshops for prospective and existing Hispanic/Latino law faculty and law school deanship aspirants, through programs such as the Michael Olivas Summer Writing Institute and the GO LILA summer workshops, collaboration with other established workshops, and by organizing new initiatives to increase Hispanic and Latino/a diversity in the legal academy. The Task Force will plan in-person “how to become a law professor” workshops at the annual HNBA conferences, assist with matching law faculty and law dean aspirants with suitable mentors, support the professional development of and networking opportunities for currently appointed Hispanic/Latino law faculty, promote better data tracking by national accreditation and membership associations, and otherwise promote more Hispanic and Latino/a representation in the legal professoriate and decanal ranks.

In addition to Matas and Varona, the HNBA Task Force on Law Faculty and Deans will include as members nationally renowned legal education leaders, known for their dedication to diversifying the legal profession and the academy, including:

Dolores S. Atencio, Esq., Visiting Scholar, U. of Denver Latinx Center|Sturm College of Law

Steven Bender, Prof. & Assoc. Dean for Planning & Strategic Initiatives, Seattle U. School of Law

Kevin R. Johnson, Dean and Mabie-Apallas Prof. of Public Interest Law & Professor of Chicana/o Studies, UC Davis School of Law

José Roberto (Beto) Juárez, Jr., Dean & Prof., Nova Southeastern U. Broad College of Law

Jenny Martinez, Lang Prof. of Law and Dean, Stanford Law School

Margaret Montoya, Prof. Emerita of Law (and Medicine), U. of New Mexico

Jennifer Rosato Perea, Dean & Prof. of Law, DePaul U. College of Law

Hon. Jenny Rivera, Associate Judge, New York Court of Appeals

Ediberto Román, Prof. of Law, Florida International U. College of Law

Krista Contino Saumby, Esq., Assoc. Director of Career Dev., Elon University School of Law

Paulina Vera, Professorial Lecturer in Law, George Washington U. Law School

This Task Force shall operate as a Presidential Special Committee.

###

The Hispanic National Bar Association is an incorporated, not-for-profit, national membership association that represents the interests of over 78,000+ Hispanic attorneys, judges, law professors, legal assistants, law students, and legal professionals in the United States and its territories. Since 1972, the HNBA has acted as a force for positive change within the legal profession by creating opportunities for Hispanic lawyers and by helping generations of lawyers to succeed.

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

Congrats to Paulina, Dean Kevin Johnson, and all the other outstanding scholar/leaders named to this group. Another place where more diversity is long overdue is the Federal Bench. In particular, despite the disparate impact of Immigration Court decisions on Hispanic-American communities, they are underrepresented on the bench at EOIR.

As the awesome talent represented by this Task Force shows, it isn’t for lack of exceptionally well-qualified judicial candidates available in the private sector. It’s a recruiting and cultural problem at DOJ, along with severe credibility problems stemming from perceptions of overall hostility at EOIR to asylum seekers, other migrants, and their lawyers, often directed at Hispanics and other individuals of color. The “culture” at EOIR really can only be changed by getting on the “inside” — that means getting on the bench or into the EOIR supervisory structure.

I have spoken to the Hispanic National Bar Association and urged private sector lawyers with immigration, human rights, civil rights, and due process expertise to apply for Immigration Judge vacancies. https://immigrationcourtside.com/2021/04/08/⚖️🗽🧑🏽‍⚖️camille-j-mackler-just-security-gets-it-how-come-judge-garland-the-biden-admini/

On a positive note, one of my fellow panelists on that occasion, Hon. Claudia Cubas, is now an Immigration Judge at the Hyattsville (MD) Immigration Court!

I look forward to Paulina and other NDPA superstars 🌟 like her joining Judge Cubas on the bench in the near future. Positive change requires working “at all levels” to pump due process, fundamental fairness, and decisional excellence into a broken justice system.

Under AG Garland, at least some semblance of a “merit-based” selection system, one that honors immigration representation and human rights experience, has taken hold at EOIR. Therefore, Immigration Judge positions are the ideal “entry level” for those seeking careers in the Federal Judiciary.

Also, the “hands on” experience with making difficult decisions at the critical “retail level” of American justice will be an asset in any career path. Every correct decision at EOIR is potentially life-changing and life-saving! There aren’t many other areas where you can say that! These decisions are far, far too important to individuals and to our nation’s future to be left to the “amateur night at the Bijou” aura that unfortunately (tragically) has permeated EOIR in recent years!

Very proud to say that Paulina is a “distinguished alum” of the “Legacy” Arlington Immigration Court Internship Program and a “charter member” of the NDPA! 😎⚖️🗽

🇺🇸 Due Process Forever!

PWS

04-26-23

POLITICS: RICE TO LEAVE WHITE HOUSE IN MAY — Tanden Possible Replacement!

From Politico:

https://apple.news/Au9UkPR0bSiqaMkC5yrBHQA

Susan Rice to step down as domestic policy adviser

Rice, who also served as the U.S. ambassador to the United Nations, helped the Biden administration with expanding the Affordable Care Act.

By KIERRA FRAZIER, ADAM CANCRYN and MYAH WARD
04/24/2023 09:26 AM EDT
Updated: 04/24/2023 11:32 AM EDT

Domestic policy adviser Susan Rice is stepping down from her post.

Rice, who served as U.S. ambassador to the United Nations, helped the Biden administration with expanding the Affordable Care Act, getting his Inflation Reduction Act into law, and passing gun control legislation. The move comes as the White House is facing controversy over its handling of migrant children who crossed the Southern border.

“As the only person to serve as both National Security Advisor and Domestic Policy Advisor, Susan’s record of public service makes history,” said President Joe Biden in a statement announcing the departure. “But what sets her apart as a leader and colleague is the seriousness with which she takes her role and the urgency and tenacity she brings, her bias towards action and results, and the integrity, humility and humor with which she does this work.”

Rice’s departure leaves a major hole within the top ranks of the White House right as it gears up for a likely re-election campaign and as it faces a stare down with congressional Republicans over raising the debt limit. Among those being eyed as a replacement for her include Neera Tanden, Biden’s staff secretary and a senior adviser, four people with knowledge of the deliberations told POLITICO. Separately, a top White House official said no replacement had been identified yet.

One former administration official said White House aides were talking openly about Tanden’s consideration for Rice’s job over the weekend, calling her potential appointment “pretty damn firm.”

. . . .

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

Read the full article at the link.

Say what you will, Rice never got a handle on the need to restore the rule of law for asylum seekers at the border. Nor did she ever “get” the simple fact that you can’t solve a humanitarian situation through law enforcement focused largely on deterrence and punishment.

Although reviled by the GOP, Rice appeared to uncritically adopt many of Stephen Miller’s most xenophobic border myths and showed little interest in listening to experts who actually are working with asylum seekers and kids at the border.

In theory, Neera Tanden, whose nomination to be OMB Director was “torpedoed” by the GOP and Sen. Joe Manchin, could be better for human rights. But, 1) she doesn’t actually have the job yet; and 2) we’ve been here before with folks who look good from a distance but can’t perform in practice.

Among the apparent reasons for Tanden’s OMB rejection was that she had sent nasty e-mails and tweets about some Senators.

That was a case of the GOP having mass amnesia about the intemperate statements, personal insults, and incoherent rage that were a staple of their former election-denying President whom most blindly supported, and continue to cover for, through all transgressions against decorum and the law.

I suspect that most due process and human rights advocates aren’t shedding any tears about Rice’s impending departure. We’ll see what happens next.

🇺🇸 Due Process Forever!

PWS

04-24-23

⚖️ “STANDARDS [SHOULD] MATTER” — Judge Rosemary Pooler (Dissenting) “Schools” Colleagues On How Standards Of Review Are Improperly Manipulated To Favor DHS!

Hon. Rosemary S. Pooler
Senior Circuit Judge
Second Circuit
PHOTO: Law.com

https://www.ca2.uscourts.gov/decisions/isysquery/7c64a6f4-549e-4ec9-8278-1e538e4b4bd7/2/doc/19-2044_21-6533_complete_opn.pdf

Hernandez v. Garland, 2d Cir., 04-21-23, Walker, Pooler, Park, Circuit Judges

POOLER, Circuit Judge, dissenting:

2 Standards matter. A standard of review is the essential mechanism that

3 defines an appellate court’s proper role in reviewing the record presented. All

4 appellate courts must adhere to the proper standard of review. The Board of

5 Immigration Appeals (“BIA” or “the Board”) is no exception. Here, the BIA

6 applied a standard that substantially deviated from the clear error standard and

7 improperly made factual findings that contradicted those made by the

8 Immigration Judge (“IJ”). The BIA’s failure to adhere to the proper standard is

9 “the type of error that requires remand.” De La Rosa v. Holder, 598 F.3d 103, 108

10 (2d Cir. 2010). Accordingly, I respectfully dissent.

11 This Court lacks jurisdiction to review purely discretionary decisions by

12 the BIA, see 8 U.S.C. § 1252(a)(2)(B)(ii), but we retain jurisdiction over

13 “constitutional claims or questions of law,” Noble v. Keisler, 505 F.3d 73, 77 (2d

14 Cir. 2007) (quoting § 1252(a)(2)(D)). When reviewing decisions, “[t]he Board will

15 not engage in de novo review of findings of fact determined by an immigration

16 judge. Facts determined by the immigration judge, including findings as to the

17 credibility of testimony, shall be reviewed only to determine whether the

18 findings of the immigration judge are clearly erroneous.” 8 C.F.R. §

1

1 1003.1(d)(3)(i). “[W]hen the BIA engages in factfinding in contravention of 8

2 C.F.R. § 1003.1(d)(3)(iv), it commits an error of law, which [the Court has]

3 jurisdiction to correct.” Padmore v. Holder, 609 F.3d 62, 67 (2d Cir. 2010); see also

4 Rizal v. Gonzales, 442 F.3d 84, 89 (2d Cir. 2006) (explaining that the Court will

5 vacate BIA decisions “that result from flawed reasoning or the application of

6 improper legal standards”). Though the BIA “may review questions of law” and

7 “all other issues” on appeal de novo, see § 1003.1(d)(3)(ii), it is explicitly barred

8 from “engag[ing] in factfinding in the course of deciding cases” aside from

9 taking “administrative notice of facts that are not reasonably subject to dispute,”

10 § 1003.1(d)(3)(iv)(A).

11 Here, the BIA recited the precise legal standard at the beginning of its May

12 2019 decision. Special App’x at 7 (citing § 1003.1(d)(3)). But we do not simply

13 “rely on the Board’s invocation of the clear error standard; rather, when the issue

14 is raised, [the Court’s] task is to determine whether the BIA faithfully employed

15 the clear error standard or engaged in improper de novo review of the IJ’s factual

16 findings.” Rodriguez v. Holder, 683 F.3d 1164, 1170 (9th Cir. 2012); see also Chen v.

17 Bureau of Citizenship & Immigr. Servs., 470 F.3d 509, 514 (2d Cir. 2006) (noting that

18 despite “cit[ing] the proper legal standard at the outset of its decision, [the BIA]

2

1 failed to apply this deferential standard of review”). Despite its invocation of the

2 clear error standard, the BIA did not ultimately apply this standard of review to

3 Oscar Hernandez’s case. Merely reciting the standard does not transform the

4 BIA’s impermissible factfinding into a permissible exercise of discretion. Such lip

5 service should not suffice.

6 The majority opinion characterizes the BIA’s impermissible factfinding as a

7 simple “de novo reweighing of the equities based on the facts found by the IJ.”

8 Maj. Op. at 3. That is not the case. Without identifying any of the IJ’s findings as

9 clearly erroneous, the BIA implicitly rejected the IJ’s factual findings and

10 substituted the facts found by the IJ with its own factual findings. If the BIA

11 rejects the IJ’s findings, we expect it to “supply cogent reasons for its rulings,”

12 which the BIA failed to provide. See Lin v. Lynch, 813 F.3d 122, 129 (2d Cir. 2016).

13 The BIA completely disregarded the IJ’s credibility determination when it

14 concluded, contrary to the IJ’s findings, that it “d[id] not find [Hernandez’s]

15 explanation convincing” regarding the circumstances of his 2016 arrest. Special

16 App’x at 10. This divergence in characterization of the 2016 incident was central

17 to the BIA’s decision. In its attempt to parse out the definition of “convincing,”

18 the majority claims the BIA did not overturn the IJ’s factual findings, arguing the

3

1 BIA’s intended use of the word meant it was not “persuaded” by Hernandez’s

2 explanation, not that his testimony was not “truthful.” Maj. Op. at 11. This is an

3 unconvincing distinction. Next, the majority suggests the BIA doubted that

4 Hernandez warranted discretionary relief, not the truthfulness of his testimony.

5 Id. at 12. That clarification, however, does not do much to support the majority’s

6 argument. The BIA’s “de novo” reconsideration of whether Hernandez merited a

7 favorable exercise of discretion was premised on its factual determination that he

8 had “continued to engage in violent behavior” following his first arrest and

9 conviction in 2009. Special App’x at 10. The only evidence cited for this

10 determination was that Hernandez’s “most recent arrest in 2016 . . . included

11 abusive behavior toward his spouse”—a characterization directly at odds with

12 the IJ’s findings. Special App’x at 10.

. . . .

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

You can read the full decision, including Judge Poolers’ full dissent, at the link.

As Judge Pooler points out, manipulation of the standards of review can be used either to improperly substitute judgement on fact-findings (BIA) or too avoid critical review of BIA’s actions (Circuit majority).

Thanks to Dan Kowalski over at LexisNexis for passing this along.

🇺🇸 Due Process Forever:

PWS

04-23-23

Here’s the official list with bios from EOIR:

For my colleague Judge “Sir Jeffrey” Chase, Judge Maria Baldini-Potermin is the name that jumps out:

For me, it’s Judge Angela Munro whom I worked with on training for the Annual Conference during my time at EOIR:

Another bio that caught my eye is Judge Hannah B. Kubica who once practiced at Joyce & Associates in Boston with my long-time friend and Round Table colleague Judge Bill Joyce.

🇺🇸 Due Process Forever!

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