Women Need Not Apply
Those looking for legal analysis should read no further. The following is a cry from the heart.
The respondent’s personal nightmare began the year after her marriage. For the next 15 years, she was subjected to relentless physical, sexual, and emotional abuse.
It is most apt that Donald Trump became president by beating a woman. His campaign historically provoked millions to march in angry protest of his denigration of women on his first full day in office.
“The violence inflicted on [her] took many forms. Her husband beat her repeatedly, bashing her against the wall and kicking her, including while she was pregnant. He raped her on countless occasions.”
On Monday, Trump’s Attorney General announced that women who are victims of domestic violence should no longer be deemed to merit protection from our government in the form of political asylum.
Sessions’ action was shockingly tone deaf. As the wonderful Rebecca Solnit wrote in her 2013 essay “The Longest War:” “We have an abundance of rape and violence against women in this country and on this Earth, though it’s almost never treated as a civil rights or human rights issue, or a crisis, or even a pattern. Violence doesn’t have a race, a class, a religion, or a nationality, but it does have a gender.” The year after Solnit wrote those words, our Department of Justice took a step in the right direction. In recognizing domestic violence as a basis for asylum, our government was finally recognizing such gender-based abuse as a human rights issue, at least in the limited forum of immigration law.
“He also frequently threatened to kill her, at times holding a knife to her neck, and at other times brandishing a gun or, while she was pregnant, threatening to hang her from the ceiling by a rope.” The above were supported by sworn statements provided by the respondents’ neighbors.
It is only very recently that our society has begun to hold accountable those who commit gender-based abuses against women. #MeToo is a true civil rights movement, one that is so very long overdue. In opposing such movement, Jeff Sessions is casting himself as a modern day George Wallace. It bears repeating that no one, no one, was challenging the settled precedent that victims of domestic violence may be granted asylum as members of a particular social group. When the precedent case was before the Board of Immigration Appeals, the Department of Homeland Security, i.e. the enforcement agency prosecuting the case, filed a brief in which it conceded that the group consisting of “married women in Guatemala who are unable to leave their relationship” satisfied all of the legal criteria, and was therefore a proper particular social group under the law. No one has appealed or challenged that determination in the four years since. Who is Jeff Sessions, who has never practiced immigration law in his life, to just toss out such determination because he and only he disagrees?
The respondent’s “husband controlled, humiliated, and isolated her from others. He insulted her ‘constantly,’ calling her a ‘slut’ or ‘dog.’ He did not want her to work outside the house and believed ‘a woman’s place was in the home like a servant.’ When he came home in the middle of the night, he forced her out of bed to serve him food, saying things like ‘Bitch, feed me.”
Like Wallace before him, who in 1963 stood in front of the door of the University of Alabama trying in vain to block the entry of four black students, Sessions is trying to block a national movement whose time has come. As with Wallace and the Civil Rights Movement, justice will eventually prevail. But now as then, people deserving of his protection will die in the interim.
“Although [her] husband frequently slept with other women, he falsely accused her of infidelity, at times removing her undergarments to inspect her genitals. He also beat their children in front of her, causing her serious psychological damage.”
The AG’s decision was intentionally released during the first day of the Immigration Judges’ Training Conference. There have been ideological-based appointments of immigration judges under both the Trump and Bush administrations. Several persons present at the conference reported that when the decision was announced, some immigration judges cheered. It was definitely a minority; the majority of immigration judges are very decent, caring people. But it was more than a few; one of my sources described it as “many,” another as “a noteworthy minority.”
Think about that: some federally appointed immigration judges cheered the fact that women who had been violently raped and beaten in their country can no longer find refuge here, and will be sent back to face more violence, and possibly death. Will there be any consequences for their actions? Were the many outstanding immigration judges who have been proud to grant such cases in the past, who were saddened and sickened by this decision, able to openly jeer or weep or curse this decision? Or would that have been viewed as dangerous?
The respondent “believes her life will be in danger” if returned to her country, “where her ex-husband, supported by his police officer brother, has vowed to kill her. She does not believe there is anywhere” in her country “she could find safety.
Victims of domestic violence will continue to file applications for asylum. They will argue before immigration judges that their claims meet the legal criteria even under the AG’s recent decision. Unfortunately, some of those applicants will have their cases heard by immigration judges who, when they heard that the woman whose claim was described in the italicized sections was denied asylum by Jeff Sessions, and will now likely be deported to suffer more such abuse or death, cheered.
The sections in italics are the facts of the asylum-seeker in Matter of A-B-, (including quotes from her appeal brief) who was denied asylum on Monday by Jeff Sessions.
Copyright 2018 Jeffrey S. Chase. All rights reserved.
Category: Aggravated Felony
SESSIONS USES SPEECH TO U.S. IMMIGRATION JUDGES TO SPREAD LIES, MOUNT ALL OUT ATTACK ON US ASYLUM LAW AND INTERNATIONAL PROTECTION LAWS – Targets Most Vulnerable Refugee Women Of Color For Latest Round Of Legal Abuses – Orders Judges To Prejudge Applications In Accordance With His Rewrite Of Law – It’s “Kangaroo Court” – The Only Question Now Is Whether Congress & Article III’s Will Let Him Get Away With Latest Perversion Of Justice @ Justice!
“Top Kangaroo lays down the law to EOIR Judges”
Attorney General Sessions Delivers Remarks to the Executive Office for Immigration Review Legal Training ProgramWashington, DC~
Monday, June 11, 2018
Remarks as prepared for delivery
Thank you, James, for that introduction, and thank you for your years of superb service to the Department as an SAUSA, at Main Justice, and now here at EOIR. James has been doing a fabulous job. He understands these issues, knows exactly what our challenges are, and is working steadfastly every day to meet them.
Thank you also to Katherine Reilly, Kate Sheehy, Chris Santoro, Edward So, David Neal, Chief Judge Keller, Lisa Ward, Jean King, Robin Sutman, and all of the leadership team.
It is good to be with you today.
Each one of you plays an important role in the administration of our immigration laws. Immigration judges are critical to ensuring that the Department of Justice carries out its responsibilities under the INA. You have an obligation to decide cases efficiently and to keep our federal laws functioning effectively, fairly, and consistently. As the statute states, Immigration Judges conduct designated proceedings “subject to such supervision and shall perform such duties as the Attorney General shall prescribe”.
This responsibility seeks to ensure that our immigration system operates in a manner that is consistent with the laws enacted by Congress. As you know, the INA was established to ensure a rational system of immigration in the national interest.
Of course there are provisions in the INA, consent decrees, regulations, and court decisions where the commonsense enforceability of the plain intent of the INA has been made more difficult. That’s what you wrestle with frequently.
President Trump is correct: Congress needs to clarify a number of these matters. Without Congressional action, clarity and consistency for us is much more difficult.
Let’s be clear: we have a firm goal, and that is to end the lawlessness that now exists in our immigration system. This Department of Justice is committed to using every available resource to meet that goal. We will act strategically with our colleagues at DHS and across the government, and we will not hesitate to redeploy resources and alter policies to meet new challenges as they arise.
Last month, the Department of Homeland Security announced that it will begin to refer as close to 100 percent of illegal Southwest Border crossers as possible to the Department of Justice for prosecution. The Department of Justice will take up those cases.
I have put in place a “zero tolerance” policy for illegal entry on our Southwest border. If you cross the Southwest border unlawfully, then we will prosecute you. It’s that simple.
If someone is smuggling illegal aliens across our Southwest border, then we will prosecute them. Period.
I have sent 35 prosecutors to the Southwest and moved 18 immigration judges to detention centers near the border. That is about a 50 percent increase in the number of immigration judges who will be handling cases at the border.”
All of us should agree that, by definition, we ought to have zero illegal immigration in this country.
Each of us is a part of the Executive Branch, and it is our duty to “take care that the laws be faithfully executed.”
Ours is a public trust.
And the United States of America is not a vague idea. It is not just a landmass or an economy. Ours is a sovereign nation state with a constitution, laws, elections, and borders.
As you all well know, one of our major difficulties today is the asylum process.
The asylum system is being abused to the detriment of the rule of law, sound public policy, and public safety— and to the detriment of people with just claims. Saying a few simple words—claiming a fear of return—is now transforming a straightforward arrest for illegal entry and immediate return into a prolonged legal process, where an alien may be released from custody into the United States and possibly never show up for an immigration hearing. This is a large part of what has been accurately called, “catch and release”.
Beginning in 2009, more and more aliens who passed an initial USCIS credible fear review were released from custody into the United States pending a full hearing. Powerful incentives were created for aliens to come here illegally and claim a fear of return. In effect, word spread that by asserting this fear, they could remain in the United States one way or the other. Far too often, that rumor proved to be true.
The results are just what one would expect. The number of illegal entrants has surged. Credible fear claims have skyrocketed, and the percentage of asylum claims found meritorious by our judges declined.
That’s because the vast majority of the current asylum claims are not valid. For the last five years, only 20 percent of claims have been found to be meritorious after a hearing before an Immigration Judge. In addition, some fifteen percent are found invalid by USCIS as a part of their initial screening.
Further illustrating this point, in 2009, DHS conducted more than 5,000 credible fear reviews. By 2016, only seven years later, that number had increased to 94,000. The number of these aliens placed in immigration court proceedings went from fewer than 4,000 to more than 73,000 by 2016—nearly a 19-fold increase—overwhelming the system and leaving legitimate claims buried.
Now we all know that many of those crossing our border illegally are leaving difficult and dangerous situations. And we understand all are due proper respect and the proper legal process. But we cannot abandon legal discipline and sound legal concepts.
Under the INA, asylum is available for those who leave their home country because of persecution or fear on account of race, religion, nationality, or membership in a particular social group or political opinion. Asylum was never meant to alleviate all problems— even all serious problems— that people face every day all over the world.
Today, exercising the responsibility given to me under the INA, I will be issuing a decision that restores sound principles of asylum and long standing principles of immigration law.
We have not acted hastily, but carefully. In my judgment, this is a correct interpretation of the law. It advances the original intent and purpose of the INA, and it will be your duty to carry out this ruling.
This decision will provide more clarity for you. It will help you to rule consistently and fairly.
The fact is we have a backlog of about 700,000 immigration cases, and it’s still growing. That’s more than triple what it was in 2009. This is not acceptable. We cannot allow it to continue.
At this time, when our immigration system and our immigration judges are under great stress, I am calling on you to use your best efforts and proper policies to enhance our effectiveness. To end the lawlessness and move to the virtuous cycle, we have to be very productive. Volume is critical. It just is. We ask you to evaluate your processes and disposition rates.
We ask each one of you to complete at least 700 cases a year. It’s about the average. We are all accountable. Setting this expectation is a rational management policy to ensure consistency, accountability, and efficiency in our immigration court system. Thank you for working every day to meet and exceed this goal. You can be sure that this administration and this Department of Justice supports you in this critically important and historic effort.
That’s why we are hiring more than 100 new immigration judges this calendar year. And we are actively working with our partners at DHS to ensure that we can deploy judges electronically and by video-teleconference where needed and to obtain appropriate courtroom facilities.
Let’s be clear. These actions will not end or reduce legal immigration. These actions will be directed at reducing illegal immigration. Only Congress can change legal immigration.
This is a great nation—the greatest in the history of the world. It is no surprise that people want to come here. But they must do so according to law.
When we lose clarity or have decisions that hold out hope where a fair reading of the law gives none, we have cruelly hurt many people. As we resolutely strive to consistently and fairly enforce the law, we will be doing the right thing.
The world will know what our rules are, and great numbers will no longer undertake this dangerous journey. The number of illegal aliens and the number of baseless claims will fall. A virtuous cycle will be created, rather than a vicious cycle of expanding illegality.
The American people have spoken. They have spoken in our laws and they have spoken in our elections. They want a safe, secure border and a lawful system of immigration that actually works. Let’s deliver it for them.
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It’s all about numbers — volume over justice! What a total farce!
Sessions also lied about the low asylum grant rate. Of cases in which a merits decisions on asylum is actually rendered by an Immigration Judge after hearing, here are the actual asylum grant rates from the EOIR’s own website
Figure 16
Asylum Grant Rate
Grants
Denials
Grant Rate
FY 12
10,575
8,444
56%
FY 13
9,767
8,777
53%
FY 14
8,672
9,191
49%
FY 15
8,184
8,816
48%
FY 16
8,726
11,643
43%
In other words, for the last five years available, nearly half of the asylum applications actually decided on the merits were granted. And, that doesn’t even include individuals granted other types of protection such as withholding of removal and CAT after a merits hearing.
It’s a far cry from the bogus 20% figure Sessions used. In any event, it’s well established law that denial of an asylum application does not in any way show that it was “fraudulent” or “frivolous” as Sessions implies.
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As usual, the ever-amazing Tal Kopan was one of the first to “hit the net running” with her analysis of the Sessions speech to EOIR.
Jeff Sessions primed to overhaul asylum law
By Tal Kopan, CNN
Attorney General Jeff Sessions will announce a major decision that could impact thousands of asylum seekers from Central America on Monday — his latest move to use his unique authority to single-handedly reshape immigration law.
Sessions made the announcement at an annual training conference for the nation’s hundreds of immigration judges, telling them the decision would be coming and reminding them that they will be obligated to follow his interpretation of the law.
Though Sessions did not explicitly name the decision, it is widely expected to be a case involving asylum protections for domestic violence victims. Sessions referred the case to himself earlier this year and invited interested parties to submit briefs. In his remarks, Sessions implied he would be restricting the use of asylum for victims of crime, which would reverse previous court decisions and overrule a significant 2014 Board of Immigration Appeals decision that ruled Central American domestic violence victims who cannot escape their abusive partners can qualify under asylum law for protection in the US.
“Asylum was never meant to alleviate all problems, even all serious problems, that people face every day all over the world,” Sessions said, reiterating the particular requirements of asylum under the law. “Today I will be exercising the responsibility given to me under the (Immigration and Nationality Act), I will be issuing a decision that restores sound principles of asylum and long standing principles of immigration law.”
The ruling and announcement is the latest evidence of Sessions taking full advantage of his authority over the immigration courts — a separate court system designed by law to be under the auspices of the Justice Department. The attorney general functions as a one-person Supreme Court in the system, in addition to hiring and evaluating the lower court judges themselves.
Sessions also reminded judges that his decision will be final, unless a federal appellate court were to overturn it on appeal.
In addition to impacting domestic violence victims, the case could also have large-scale implications for victims of other forms of crime and violence — rampant in Central America, where a majority of US asylum seekers at the southern border come from.
Related: Judge in case Sessions picked for immigrant domestic violence asylum review issued ‘clearly erroneous’ decisions, says appellate court
“In my judgment, this will be a correct interpretation of the law,” Sessions said. “It advances the original intent and purpose of the INA, and it will be your duty, of course, to carry that out.”
More: https://www.cnn.com/2018/06/11/politics/jeff-sessions-asylum-decision/index.html
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According to Tal, the National Association of Immigration Judges (“NAIJ”) immediately criticized Sessions’s overemphasis on numerical quotas that are actually still supposed to be the subject of “good faith” labor negotiations with the NAIJ before going into effect in the Fall.
Nevertheless, Tal’s longer article (linked above) would lead one to believe that many U.S Immigration Judges look forward their new well-defined role as an “asylum denial workforce” working as part of the law enforcement “team” to send vulnerable individuals, including children, back to death, rape, extortion, or constant beatings, in probable violation of international standards, as part of the DHS enforcement effort headed by Sessions.
Sessions received a warm welcome and reception from the judges present, who gave him multiple standing ovations at the beginning and end of his speech. But some leading immigration judges reacted unfavorably to the announcement.
Denying applications based on “precedents” intentionally misinterpreting the law will definitely make dockets move faster and might even allow some Immigration Judges to earn “gold stars” — and perhaps even recognition from the Chief Enforcer himself at next year’s conference — for exceeding their deportation quotas — at least until those pesky Article III Courts get involved.
We’ll see whether the Administration’s policies of intentional cruelty, criminal prosecution, child abuse, and sending folks back to places where their lives will be endangered without fairly considering their claims of protection works as a “deterrent” (never has in the past) or merely diminishes us as a society and a country.
As I always say, “We can diminish ourselves as a nation (and we are), but that won’t stop human migration.”
It’s a far cry from when the late Attorney General Janet Reno used to appear at Immigration Judge Conferences and urge us to do our duty to provide fairness, Due Process, and “equal justice for all.”
Stay tuned for the release of the AG’s decision and more reaction.
PWS
06-11-18
Judge Patricia A. Cole Dissents From BIA Panel Majority’s Rewriting Of The Agfel Definition Of “Prostitution” To “Zap” Respondent – Majority “Dings Ding” in Matter of Ding, 27 I&N Dec. 295 (BIA 2018)
BIA HEADNOTE:
(1) The term “prostitution” in section 101(a)(43)(K)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(K)(i) (2012), which provides that an offense relating to the owning, controlling, managing, or supervising of a prostitution business is an aggravated felony, is not limited to offenses involving sexual intercourse but is defined as engaging in, or agreeing or offering to engage in, sexual conduct for anything of value.
(2) The offense of keeping a place of prostitution in violation of section 944.34(1) of the Wisconsin Statutes is categorically an aggravated felony under section 101(a)(43)(K)(i) of the Act.
PANEL: BIA APPELLATE IMMIGRATION JUDGES COLE, PAULEY, WENDTLAND
OPINION BY: Judge Roger A. Pauly
DISSENTING OPINION: Judge Patricia A. Cole
KEY QUOTE FROM MAJORITY:
We disagree with the Immigration Judge and with the case law on which he relied because the term “prostitution” in section 101(a)(43)(K)(i) does not necessarily have the same meaning as it does in the inadmissibility provision at section 212(a)(2)(D). “It is not unusual for the same word to be used with different meanings in the same act, and there is no rule of statutory construction which precludes the courts from giving to the word the meaning which the Legislature intended it should have in each instance.” Atlantic Cleaners & Dyers v. United States, 286 U.S. 427, 433 (1932); see also Evntl. Def. v. Duke Energy Corp., 549 U.S. 561, 574 (2007).
KEY QUOTE FROM DISSENT:
I respectfully dissent. I agree with the Immigration Judge’s decision that the respondent’s conviction is not for an aggravated felony under the existing Federal definition of “prostitution.” The majority has crafted a definition of prostitution for purposes of section 101(a)(43)(K)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(K)(i) (2012), as engaging in, or agreeing or offering to engage in, sexual conduct for anything of value. The majority decision concludes that this newly crafted definition categorically covers the conduct proscribed by the Wisconsin statute at issue in this case, but it notes that the precise contours of the term “sexual conduct” will be decided in future cases. This overly broad definition is supported by limited analysis, and it is contrary to immigration law, the law of the United States Court of Appeals for the Seventh Circuit, and the canons of statutory construction.
The majority does not provide any analytical authority for its definition other than noting that the definition is “similar” to that of Black’s Law Dictionary and providing, without any analysis, a survey of the definitions of “prostitution” from the 50 States and the District of Columbia in 1994. Additionally, the majority does not even discuss the ramifications of its new definition of prostitution for section 101(a)(43)(K)(ii) of the Act, which references the provisions of 18 U.S.C. §§ 2421, 2422, and 2423 (2012), which relate to engaging in “prostitution, or in any sexual activity.”
********************************************
Judge Cole’s dissent makes sense to me. Nice to see that occasionally BIA Appellate Immigration Judges stand up for legal constructions that don’t invariably favor deportation of respondents who have been convicted of crimes.
SUPREMES AGREE TO TAKE ANOTHER DETENTION CASE — This One Involves The “When Released” Issue For Mandatory Detention – Nielsen v. Preap, 9th Cir.
http://www.scotusblog.com/case-files/cases/nielsen-v-preap/
SCOTUS BLOG REPORTS
Nielsen v. Preap
Docket No. Op. Below Argument Opinion Vote Author Term 16-1363 9th Cir. TBD TBD TBD TBD OT 2018 Issue: Whether a criminal alien becomes exempt from mandatory detention under 8 U.S.C. § 1226(c) if, after the alien is released from criminal custody, the Department of Homeland Security does not take him into immigration custody immediately.
SCOTUSblog Coverage
- Justices decline to weigh in on constitutionality of death penalty (Amy Howe)
- Petitions of the day (Aurora Barnes)
Date Proceedings and Orders Mar 31 2017 Application (16A944) to extend the time to file a petition for a writ of certiorari from April 11, 2017 to May 11, 2017, submitted to Justice Kennedy. Apr 07 2017 Application (16A944) granted by Justice Kennedy extending the time to file until May 11, 2017. May 11 2017 Petition for a writ of certiorari filed. (Response due June 12, 2017) May 18 2017 Order extending time to file response to petition to and including July 12, 2017, for all respondents. Jun 26 2017 Order further extending time to file response to petition to and including August 11, 2017. Aug 08 2017 Brief of respondents Mony Preap, et al. in opposition filed. Aug 23 2017 DISTRIBUTED for Conference of 9/25/2017. Aug 23 2017 Reply of petitioners Elaine C. Duke, Acting Secretary of Homeland Security, et al. filed. (Distributed) Feb 27 2018 DISTRIBUTED for Conference of 3/2/2018. Mar 12 2018 DISTRIBUTED for Conference of 3/16/2018.
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NEW BIA PRECEDENT EXPLAINS WHY IN SOME CASES THE ATTEMPT MIGHT BE WORSE THAN THE CRIME – MATTER OF CERVANTES NUNEZ, 20 I&N DEC. 238 (BIA 2018)
Matter of CERVANTES NUNEZ, 20 I&N Dec. 238 (BIA 2018)
BIA HEADNOTE:
The crime of attempted voluntary manslaughter in violation of sections 192(a) and 664 of the California Penal Code, which requires that a defendant act with the specific intent to cause the death of another person, is categorically an aggravated felony crime of violence under section 101(a)(43)(F) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(F) (2012), notwithstanding that the completed offense of voluntary manslaughter itself is not such an aggravated felony.
PANEL: BIA Appellate Immigration Judges Pauley, Guendelsberger, Wendtland
OPINION BY: Judge Roger A. Pauley
KEY QUOTE:
“Although perhaps counterintuitive, we therefore hold that the respondent’s offense of attempted voluntary manslaughter under sections 192(a) and 664 of the California Penal Code is categorically a crime of violence under § 16(a). Unlike the completed crime of voluntary manslaughter under California law, which encompasses reckless conduct and is therefore not categorically a crime of violence under Ninth Circuit law, attempted voluntary manslaughter requires the specific intent to kill. Although “physical force” is not an express element of attempted voluntary manslaughter, we deem it evident under Ninth Circuit law that the offense, which requires a “volitional,” or intentional, mental state and contemplates a direct act on the part of the accused that is capable of causing the death of another person, inherently presupposes the use of “physical force.” Since the respondent’s offense necessarily involves the intentional use of physical force, it “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. § 16(a).”
***********************************************
In this particular case, the respondent was convicted of both the completed crime of voluntary manslaughter and the attempt under California law. But, there could be cases where in negotiating a plea bargain, counsel would be better off from an immigration standpoint pleading her client to the completed crime, not the attempt.
PWS
03-18-18
NEW BIA PRECEDENT ON CONTROLLED SUBSTANCES – MATTER OF ROSA, 27 I&N DEC. 228 (BIA 2018) — We’re All Becoming Bit Players In A Continuous Performance Of “The Theater Of The Absurd!”
Matter of ROSA, 27 I&N Dec. 228 (BIA 2018)
BIA HEADNOTE:
(1) In deciding whether a State offense is punishable as a felony under the Federal Controlled Substances Act and is therefore an aggravated felony drug trafficking crime under section 101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2012), adjudicators need not look solely to the provision of the Controlled Substances Act that is most similar to the State statute of conviction.
(2) The respondent’s conviction under section 2C:35-7 of the New Jersey Statutes for possession with intent to distribute cocaine within 1,000 feet of school property is for an aggravated felony drug trafficking crime because his State offense satisfies all of the elements of 21 U.S.C. § 841(a)(1) (2012) and would be punishable as a felony under that provision.
PANEL: BIA Appellate Immigration Judges PAULEY, WENDTLAND, O’CONNOR
OPINION BY: Judge Linda S. Wendtland
CONCURRING OPINION: Judge Blair T. O’Connor
KEY QUOTE FROM JUDGE O’CONNOR’S CONCURRING OPINION:
“So while I do not disagree with the point made by the majority and the DHS about avoiding absurd results, I unfortunately do not find it to be persuasive. This statement alone is a sad commentary on the state of affairs when it comes to making criminal law determinations in immigration proceedings and is an earnest call for a congressional fix to the mess we currently find ourselves in. See United States v. Fish, 758 F.3d 1, 17–18 (1st Cir. 2014) (collecting cases that call on Congress to “rescue the federal courts from the mire into which . . . [the] ‘categorical approach’ [has] pushed [them]” (quoting Chambers v. United States, 555 U.S. 122, 131–32 (2009) (Alito, J., concurring))); Mathis, 136 S. Ct. at 2258 (Kennedy, J., concurring) (noting the “continued congressional inaction in the face of a system that each year proves more unworkable”).
Finally, it bears noting that the Third Circuit has already found § 860 to be the proper Federal analogue to section 2C:35-7, albeit in an unpublished decision. See Chang-Cruz, 659 F. App’x 114. In that decision, the Government conceded that this was the case, and having lost the divisibility battle there, the DHS now seeks to use § 841 to argue that section 2C:35-7 is categorically an aggravated felony drug trafficking crime. Although I do not disagree with the majority that such an approach is permissible, I do so with reservations over how much more complicated categorical determinations may become for adjudicators who must now decide what is an “appropriate Federal analogue” and consider that analogue, or any permissible combination of such analogues, in discerning whether a State offense is a felony under the Controlled Substances Act. These determinations are difficult enough for an immigration system that is already overburdened. In the words of Justice Alito, “I wish them good luck.” Mathis, 136 S. Ct. at 2268 (Alito, J., dissenting).”
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Bottom line:
- The respondent loses (of course);
- The law is too complicated; and
- Judge O’Connor thinks it should be unnecessary to go through all this rigmarole because this is a “bad guy” whom Congress clearly intended to kick out without recourse.
If anyone can explain the legal gibberish in this case further to me in plain English in 25 words or fewer, please do!
I get the point that the law has become too complex. But, this discussion seems to bypass the real problem in cases like this that has been “lost in space.”
How would an unrepresented, detained individual who doesn’t speak English properly defend him or herself in a case like this. The clear answer: they couldn’t, since even the “expert judges” in the Ivory (or Glass) Towers with their teams of cracker-jack law clerks are struggling with this stuff. Therefore, in the absence of counsel, appointed if necessary, these hearings before the Immigration Judges are nothing but judicial farces, theaters of the absurd, that mock due process and fairness and trample our Constitution. Samuel Beckett, Luigi Pirandello, Friedrich Dürrenmatt, and friends would be proud of what’s been accomplished in our 21st Century immigration system!
That’s the problem to which both Congress and the Article III Appellate Courts need to wake up before it’s too late. In the meantime, please explain to me just how Sessions’s “pedal faster, schedule more, cut corners” approach to the Immigration Courts is helping to solve this problem?
PWS
03-14-18
SO-CALLED “SANCTUARY CITY” NEW YORK SEES AMAZING DROP IN CRIME! — Maybe Gonzo Should Stop Lobbing Anti-Immigrant Grenades & Study What Actually Works!
https://www.nytimes.com/2017/12/27/nyregion/new-york-city-crime-2017.html?_r=0
Ashley Southall reports for the NYT:
“It would have seemed unbelievable in 1990, when there were 2,245 killings in New York City, but as of Wednesday there have been just 286 in the city this year — the lowest since reliable records have been kept.
In fact, crime has fallen in New York City in each of the major felony categories — murder and manslaughter, rape, assault, robbery, burglary, grand larceny, and car thefts — to a total of 94,806 as of Sunday, well below the previous record low of 101,716 set last year.
If the trend holds just a few more days, this year’s homicide total will be under the city’s previous low of 333 in 2014, and crime will have declined for 27 straight years, to levels that police officials have said are the lowest since the 1950s. The numbers, when taken together, portray a city of 8.5 million people growing safer even as the police, under Mayor Bill de Blasio, use less deadly force, make fewer arrests and scale back controversial practices like stopping and frisking thousands of people on the streets.
“There is no denying that the arc is truly exceptional in the unbroken streak of declining crime,” said William J. Bratton, who retired from his second stint as police commissioner last year.
But officials see one area of concern: an uptick in reports of rapes toward the end of the year. The increase, which officials said included a higher-than-normal number of attacks that occurred more than one year ago, coincided with the publication of accusations against powerful men like Harvey Weinstein, which gave rise to the #MeToo movementencouraging victims to come forward. City police officials have said they believed news coverage played a role in the spike in reports, though they also credited their own efforts combating domestic violence with encouraging victims to speak up.
And while rapes were down from last year by one, to 1,417, misdemeanor sex crimes — a catchall for various types of misconduct that includes groping — ticked up 9.3 percent to 3,585 so far.
The lower homicide numbers are still preliminary — and include one announced on Wednesday night — but they jibe with large drops in killings in major cities like Chicago and Detroit, while contrasting with sizable increases in killings in smaller cities like Charlotte and Baltimore.
The city today is a far cry from what it was when Mr. Bratton arrived in 1990 to become the head of the then-separate Transit Police. Not only were there 2,245 killings that year, but there were more than 527,000 major felony crimes and more than 5,000 people shot. Shootings have plunged to 774 so far this year, well below last year’s record low of 998. And for the first time, fewer than 1,000 people have been hurt by gunfire: 917 as of Sunday.
The continued declines are a boon to Mr. de Blasio, a Democrat elected on promises of police reform — promises that prompted warnings of mayhem to come by his opponents in 2013. But the opposite has happened, putting him on stronger footing as he pivots to a second term with a Police Department transformed to exercise greater restraint as it focuses on building trust in the city’s neighborhoods.
Franklin E. Zimring, a professor at University of California, Berkeley, School of Law, said the downturn was an “astounding achievement,” but it raised another question: How long and low will crime fall?
“We don’t know when we’ve exhausted the possibilities of urban crime decline, and we won’t know unless and until New York scrapes bottom,” said Mr. Zimring, who analyzed the first 20 years of New York’s historic crime reduction and expounded on it in a book.
Mr. de Blasio and the police commissioner, James P. O’Neill, credit recent drops in crime to the Police Department’s emphasis on going after the relatively small groups of people — mostly gangs and repeat offenders — believed to be responsible for most crime, while also building relationships in communities where trust has been strained.
Mr. Bratton applauded political support for the police from the mayor, who provided funding for investments in officer hiring, training, equipment and overdose-reversal drugs.
One of the results is that police officers are using deadly force less often. As of Dec. 20, police officers intentionally fired their service guns in 23 encounters, a record low, down from 37 in 2016. The Police Department said officers were relying more on stun guns, which were used 491 times through November, compared with 474 times during the same period in 2016. More than 15,000 officers have been trained how to use them.
But criminologists differ about the cause of the continued declines. Mr. Zimring said that while better policing accounted for much of the decline in crime since 1990, it was no longer a primary driver. New York is “tiptoeing” toward a 90 percent crime decline for reasons that remain “utterly mysterious,” he said.
More broadly, research suggests that crime trends are closely tied to economic conditions. Interest rates, inflation and unemployment are among the macro-level factors influencing crime, according to James Austin, the president of the JFA Institute, a criminal justice policy nonprofit.
“What the Fed does will have more of an impact than any sentencing or police reforms,” Mr. Austin said.
The reductions in New York are a part of what the Brennan Center for Justice expects will be a 2.7-percent decline in crime rates and 5.6-percent drop in murder rates across the country’s largest cities. After record-high bloodshed last year, killings in Chicago have declined 15 percent.
Through August, rape was down in New York City 7 percent compared with last year, but a small increase in September was followed by spikes in October and November. The New York Times first published accusations against Mr. Weinstein on Oct. 5.
Reports of rapes that had occurred in a previous year, meanwhile, were up almost 12 percent through November. In response, the Police Department is adding investigators to its Special Victims Unit and hasmodernized the techniques detectives use to investigate claims.
“We can’t answer definitively” what is driving the rise, Commissioner O’Neill told reporters at a crime briefing this month. “At least I can’t. But we’re seeing people coming forward and having faith in the N.Y.P.D. And that’s what we want to happen.”
Whatever the reason for New York’s crime reductions, the statistics do not capture the complete picture of public safety. Some crimes are not represented fully or at all: acts of domestic violence, sexual assaults, identity thefts, hate crimes, and shootings that don’t result in injuries or damage.
In some cases, the data annotates horrible crimes: an ISIS-inspired truck rampage on a Manhattan bike lane on Halloween that left eight people dead; the ambush killing of a police officer, Miosotis Familia, 48, who was shot in the head on July 4 while sitting in her R.V.-style command post in the Bronx; the death of Timothy Caughman, 66, a black man, at the hands of a sword-wielding white supremacist on March 20.
Increasingly, officers are receiving calls to help people in emotional crises. The police responded to 157,000 such calls in 2016. But only 7,000 officers have received crisis intervention training for handling those situations.
While most police encounters are resolved without officers resorting to deadly force, fatal police shootings of people in emotional distress — including Dwayne Jeune on July 31 in Brooklyn and Miguel Richards on Sept. 6 in the Bronx — have drawn scrutiny. A police sergeant, Hugh Barry, was indicted on murder charges in May for the fatal on-duty shooting of a mentally ill woman, Deborah Danner, in October 2016. His trial is scheduled to begin in January.”
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AG Jeff “Gonzo Apocalypto” Sessions’s White Nationalist inspired anti-immigrant, anti-Sanctuary Cities, “turn a blind eye to police brutality” campaign actually impedes the type of community-trust based policing that appears to work in reducing crime. As I have noted before, Gonzo’s policies show little respect for the Constitution, the rule of law, or state and local rights, but lots of anti-immigrant bias.
PWS
01-01-18
START YOUR WEDNESDAY WITH SOME UPLIFTING BREAKING NEWS – IT’S A GREAT DAY FOR THE USA: 1) Alabama Comes Through For U.S. By Electing Democrat Doug Jones To US Senate; 2) Aaron Rodgers Cleared To Return To Pack & Will Start Against The Carolina Panthers on Sunday! –- “Ayatollah Roy” Will Not Be Bringing His Agenda Of Bigotry, Hate, & Un-American Views & His Total Scumbag Persona To Washington – One Of America’s Favorite — & Most Fun To Watch – Sports Stars Will Return To “Primetime!”
First, we can all thank Senator Elect Doug Jones and the voters of Alabama for saving America from the horrible spectacle and damage that would have been caused by the election of the heinous bigot, liar, slanderer, racist, homophobe, xenophobe, theocrat of a false religion, coward, scofflaw, and apparent sexual predator Roy Moore. Jones’s election is a striking rebuke to that other sleazy, corrupt, dishonest, bigoted unrepentant sexual predator in America, Trump. And, by narrowing the GOP advantage in the Senate to a razor-thin 51-49, it raises the possibility that the Democrats with the help of just two responsible Republicans could block substantial parts of Trump’s and the GOP’s insane “War on America” and protect us from some of Trump’s worst excesses.
How ironic that White Nationalist and “Jim Crow relic” Attorney General Jeff “Gonzo Apocalyopto” Sessions is being replaced by a by a competent and decent person who believes in American democracy and governing for the “common good” rather than as an out of touch ideologue with a strong anti-American, anti-Diversity, hate promoting agenda.
It’s also ironic that Jones has done the GOP a favor by relieving them of the lengthy circus of both expelling him from their party and ultimately removing him from the Senate. Anything short of that would have been a continuing embarrassment for the party. Quite contrary to Trump’s outrageous statements in support of the Ayatollah, any vote that a party wins because of support of a total scumbag like Moore damages that party as well as our country. (It does, however, raise in my mind the question of when they are going to expel the anti-American, racist, bigot Steve King from their party. There is no room in any major party for the likes of King.)
Hats off to the African-American community in Alabama who were not deterred by the Sessions/GOP voter suppression anti-Civil Rights initiatives and showed up in the numbers required to make a difference in the election. After being shut out of their fair share of political power in Alabama for over 300 years, African-Americans are finally in a position to make their voices and feelings heard in the U.S. Senate.
Also, hats off to GOP Southern Senators Richard Shelby of Alabama and Tim Scott of South Carolina for standing up and “Just Saying No” to the Moore nonsense. As pointed out by Shelby, Alabama could do better than Ayatollah Roy (not a very high hurdle), and they now have in the person of Doug Jones.
Hopefully, Jones will over time find a way to “win over” most of those misguided souls who voted for Ayatollah Roy notwithstanding the very credible evidence of sexual misconduct with minors in his past, his arrogant “not credible” defense, the clear lies that he told in attempting to smear those who came forward, and his scofflaw, anti-American views. What a jerk!
Here’s the Washington Post’s editorial on Jones’s stunning upset:
“THANK YOU, Alabama.
In Tuesday’s special election, the state by a narrow margin chose to spare the nation the indignity of seating an accused child molester in the U.S. Senate. Though the stain of electing Republican Roy Moore would have sullied Alabama, seemingly confirming every negative stereotype about the Deep South state, the shame would have been national. Instead, Alabama voters chose Democrat Doug Jones to represent them until 2021.
Mr. Jones is not in perfect sync with many Alabama voters on some issues, most notably abortion. But he is an honorable man with an admirable record of public service who ran a respectful campaign. His behavior suggests he will serve with decency and care in the Senate. He should make his state proud. None of these fine things could have been said of Mr. Moore. It is beyond heartening that Alabamians refused to overlook or forgive Mr. Moore’s misshapen character.
Mr. Jones’s victory shows that, while partisanship might be extreme, it still has limits. Even in deep-red Alabama, enough voters refused to succumb to lies about how negative stories on Mr. Moore were merely fake news cooked up by a hostile media.
Americans do not send senators to Washington merely to vote mechanically on a few hot-button issues, but to exercise judgment when cameras are not rolling, on issues that are important but not headline-grabbing. Good lawmakers also protect the nation’s democratic institutions, preserve the independence of their branch of government and work with people with whom they disagree. It takes character to fulfill these responsibilities. Mr. Jones seems ready to do such work. Mr. Moore did not.
Mr. Jones’s victory also suggests that the nation’s recent awakening on sexual harassment and assault is spreading across the country. Enough Alabamians believed the women.
If Americans should feel grateful to Alabama voters, so should the Republican Party, much of which debased itself by following President Trump into the gutter of support for Mr. Moore. Its majority in the Senate will be slightly narrower, but the dignity of the Senate GOP caucus will be at least partially salvaged. Alabama voters spared the Senate Ethics Committee the dilemma of how to handle a senator who was clearly unfit but who nevertheless won a popular election. Instead of inviting controversy and chaos, they elected Mr. Jones, a man who deserves the honor.
Thanks to Alabama, Americans can wake up Wednesday morning feeling hopeful about the decency and dignity of their democracy.”
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On to the other big story, Aaron Rodgers (“AR”). AR’s recovery from a broken collarbone which required surgery, two plates, and 13 screws is about as amazing as Jones’s victory.
AR is a smart player, tough guy, and great competitor. It’s certainly possible that he will be able to lead the Pack (currently 7-6 and “on the outside looking in” for a playoff spot) to a sweep of the final three games and a possible playoff birth. But, certainly no “slam dunk!”
The O line will have to do a perfect job of protecting AR. He will have to suppress his tendency to run with the football when nobody is open and the Pack needs a first down.
If the Pack should lose to the Panthers on Sunday, they will have to make a decision on whether to play AR in the final two games. A defeat would pretty much end any realistic hope of the playoffs this year. So, it might make sense to let backup Brett Hundley (3-4 as a starter in AR’s absence) start the last two games. On the other hand, being the competitor that he is, AR will want to play.
Congrats to AR on his return, good luck, and stay tuned.
Here’s a report from the Green Bay Press Gazette on AR’s return:
“The news catapults the Packers’ playoff chances from a pipe dream to a legitimate possibility with three games remaining. Conventional wisdom says the Packers must win all three — at Carolina, vs. Minnesota and at Detroit — to have a chance at a wild card in the top-heavy NFC. Accomplishing that feat with Brett Hundley at quarterback was unlikely after he won just three games in seven starts; but with Rodgers the odds shift dramatically.
Beginning Wednesday, Rodgers will have three days of practice to prepare for his first game since Oct. 15, when a hit from Minnesota Vikings linebacker Anthony Barr resulted in a broken right collarbone. Rodgers underwent surgery in California to stabilize the fracture, and the Packers ultimately placed him on injured reserve. He returned to practice on a limited basis Dec. 2 and spent the last two weeks running the scout team, dazzling his teammates each day.
His initial return meant nothing, though, if Rodgers could not be medically cleared. He underwent a series of scans Monday to reveal the progress of his collarbone, and the interpretations of those scans by team physician Patrick McKenzie, several outside specialists and general manager Ted Thompson would determine whether the risk of further injury would be worth the reward of having Rodgers for a potential playoff run.
For a while it appeared bleak. Monday came and went with nothing but party-line comments by coach Mike McCarthy, who reiterated during a news conference that any decision on Rodgers’ future would be made by medical professionals. That Rodgers spun the football during pregame at Heinz Field or zinged passes in the Don Hutson Center was irrelevant, just as his assistant coaching efforts in Cleveland did nothing but reinforce his passion.
With Tuesday morning came additional silence, and social media wondered if the lengthy delay lessened Rodgers’ chances of returning. But the results of his scans were sent to specialists around the country, in multiple time zones, and the coordination of gathering various opinions certainly influenced the timeline. It’s quite possible that Rodgers’ surgeon in California, who at this point is unidentified, had a large say in the discussion.
If nothing else, the painstaking deliberation surrounding Rodgers’ health captures the importance of franchise quarterbacks, and in particular elite franchise quarterbacks. In breadth alone the discussion might have stretched to a dozen people: McKenzie, Thompson, McCarthy, the doctor who performed surgery, several outside experts and, of course, Rodgers himself. The crew needed 36 hours to probe the conundrum from various angles.
Everything started, of course, with the fairly black-and-white question of whether Rodgers’ collarbone had calcified since two plates and 13 screws were inserted to stabilize the fracture eight weeks ago. Enough time had passed for the bone to heal significantly, though perhaps not entirely, and therein lies the gray area for whoever reviewed the scans. How sturdy must his collarbone be to withstand the punishment of 300-pound defensive linemen or hard-charging linebackers?
There were also football questions that clouded the equation. At 7-6, the Packers must win out to have a realistic shot at the playoffs — and even then, they could fall short. Why risk Rodgers’ throwing shoulder when the Packers don’t control their postseason destiny? Surely that question irked the conscience of Thompson, whose conservative disposition is well-documented in Green Bay.
One has to wonder if the two-day uncertainty weighed on Hundley as well. With Sunday’s win over the Browns came the cleansing exhale of accomplishing his primary job: keeping the Packers in playoff contention until Rodgers was eligible to return. He achieved that feat with consecutive overtime victories that cast light on his moxie.
But narrow escapes against the Browns and Buccaneers bear little resemblance to the challenge of the next three weeks. To beat the Panthers (9-4), Vikings (10-3) and Lions (7-6) — two of which are on the road — the Packers will need reinforcements.
As it turns out, that’s just what the doctor ordered.”
Not often these days that we get to wake up to good news. Go Doug, go AR, go Pack, go America!
PWS
12/13/17
THE REST OF THE STORY: ALLEGED “RAPE” THAT WAS A “CAUSE CELEB” FOR ANTI-IMMIGRANT RESTRICTIONISTS ENDS QUIETLY WITH DISMISSAL OF ALL CRIMINAL CHARGES!
Dan Morse reports for the Washington Post:
“Maryland prosecutors have dropped child pornography charges against Rockville teenager Henry Sanchez Milian, quietly ending a case that erupted onto the national stage when Sanchez Milian and a friend — who each entered the country illegally last year — were accused of raping a classmate in a school bathroom.
“I am grateful to God,” Sanchez Milian’s stepmother, Lorena Hernandez, said outside of court Friday. “Now there is light at the end of the tunnel.”
With the dismissed charges, Sanchez Milian no longer faces any counts from incidents that unfolded on March 16, when a 14-year-old student at Rockville High School told school officials and detectives she had been forced into a bathroom stall, held down and attacked.
Sanchez Milian, 18 at the time, and Jose Montano, 17 at the time, were charged by Montgomery County police with rape and sex offense counts, punishable by life in prison. Montano was charged as an adult.
In the two months that followed, however, prosecutors studied high school surveillance video, reviewed phone records, spoke to the girl and others, and concluded the original claims could not be corroborated. Defense attorneys had been telling prosecutors for weeks that the sex acts had been consensual.
Henry Sanchez Milian (Montgomery County Police)
In May, prosecutors dropped the rape case but filed charges against the suspects related to possession of child pornography. According to their new case, before March 16, Montano had engaged in lewd text exchanges with the 14-year-old, and she sent him images of herself unclothed. Montano then forwarded the images to Sanchez Milian, prosecutors said.Defense attorneys did not deny that sequence of events, but they blasted prosecutors for what they said was a stretch of child pornography laws designed to go after adults. Montano’s attorneys resolved his pornography case in juvenile court when he admitted to possessing one of the images.
But Sanchez Milian — who had stayed in the adult court system — was facing trial on child pornography charges at the end of October. His defense attorneys had dug in for a fight, establishing in hearings that they had the legal right to call the girl to the witness stand for questioning about whether the images in the texts were of her.
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Read the full story at the link.
PWS
10-22-17
BIA DEFINES “RAPE” – MATTER OF KEELEY, 27 I&N DEC 146 (BIA 2017)
Matter of Keeeley, 27 I&N Dec. 146 (BIA 2017)
BIA HEADNOTE:
(1) The term “rape” in section 101(a)(43)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(A) (2012), encompasses an act of vaginal, anal, or oral intercourse, or digital or mechanical penetration, no matter how slight. Perez-Gonzalez v. Holder, 667 F.3d 622 (5th Cir. 2012), not followed.
(2) The term “rape” also requires that the underlying sexual act be committed without consent, which may be shown by a statutory requirement that the victim’s ability to appraise the nature of the conduct was substantially impaired and the offender had a culpable mental state as to such impairment.
PANEL: Appellate Immigration Judges PAULEY, MALPHRUS, and MULLANE
DECISION BY: Judge Pauley
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Perhaps not surprisingly, the BIA chose not to follow the decision of the Fifth Circuit Court of Appeals in Perez-Gonzalez v. Holder, 667 F.3d 622 (5th Cir. 2012) which offered a rape definition slightly more favorable to respondents. The Fifth Circuit generally is known as an very conservative, pro-Government body, hardly the Ninth Circuit or even the Seventh Circuit. But, then, what do Article III Judges know about criminal law and statutory construction?
PWS
10-21-17
BIA SAYS “NO” TO “212(H)” WAIVER FOR AGFEL ADMTTED AS LPR AT “ANY” TIME – Matter of VELLA, 27 I&N Dec. 130 (BIA 2017)
Matter of VELLA, 27 I&N Dec. 120 (BIA 2017)
BIA HEADNOTE:
“An alien “has previously been admitted to the United States as an alien lawfully admitted for permanent residence” within the meaning of section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (2012), if he or she was inspected, admitted, and physically entered the country as a lawful permanent resident at any time in the past, even if such admission was not the alien’s most recent acquisition of lawful permanent resident status.”
BIA PANEL: APPELLATE IMMIGRATION JUDGES PAULEY, WENDTLAND, and GREER
OPINION BY: JUDGE PAULEY
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PWS
10-14-17
LA TIMES: SUPREMES MUST DELIVER ON PROMISE OF DUE PROCESS FOR IMMIGRANTS! — “[T]oo often immigrants haven’t received fair treatment from the courts.“ — Is Justice Gorsuch About To Make Good On His Oath To Uphold The Constitution By Standing Up For Due Process For Migrants?
http://www.latimes.com/opinion/editorials/la-ed-scotus-immigrants-20171005-story.html
“This week the Supreme Court heard arguments in two cases that pose the question of whether noncitizens should be afforded at least some of the due process of law that Americans take for granted. The answer in both cases should be a resounding yes.
On Monday, the justices considered whether a Filipino legal immigrant convicted of two home burglaries in California could be deported even if the wording of the federal law used to determine whether he could be removed from the U.S. was so unconstitutionally vague that it could not be enforced in a criminal court. On Tuesday, lawyers for a group of noncitizens detained by immigration authorities asked the court to rule that detainees are entitled to a bond hearing after six months of confinement.
Although the circumstances and legal issues in the two cases differ, the common denominator is the importance of affording due process to noncitizens.
James Garcia Dimaya, who was admitted to the U.S. as a lawful permanent resident at the age of 13, pleaded no contest in 2007 and 2009 to two charges of residential burglary. Concluding that one of the convictions was an “aggravated felony,” the Board of Immigration Appeals agreed with the Homeland Security Department that Dimaya should be deported.
The United States is often called “a nation of immigrants.” But too often immigrants haven’t received fair treatment from the courts.
But the U.S. 9th Circuit Court of Appeals overturned that decision. It said the definition of “aggravated felony” in immigration law incorporated a definition of “crime of violence” that was similar to language in a different law the Supreme Court had concluded in 2015 was too vague to be constitutional.
At Monday’s oral argument, Deputy Solicitor General Edwin S. Kneedler said the law at issue in Dimaya’s case didn’t suffer from the same vagueness problem. But even if it did, Kneedler told the court, “immigration is distinctive” and deportation “is not punishment for [a] past offense.” In other words, even if the law was too vague to be used for the purposes of criminal punishment, it could still be used for the purposes of deportation.
This brought a devastating rejoinder from Justice Neil Gorsuch. “I can easily imagine a misdemeanant who may be convicted of a crime for which the sentence is six months in jail or a $100 fine, and he wouldn’t trade places in the world for someone who is deported,” Gorsuch said. He questioned the soundness of the “line that we’ve drawn in the past” between criminal punishment and civil penalties such as deportation.
We agree. If the court decides that the wording of the law that triggered Dimaya’s removal order was unconstitutionally vague, he should be entitled to relief. A law that is too vague to justify a criminal sentence shouldn’t be a good enough reason to expel someone from the country.
In the case argued Tuesday, a class-action lawsuit, noncitizens detained by immigration authorities asked the court to rule that they should receive bond hearings if their detention lasts for six months. The lead plaintiff is Alejandro Rodriguez, who grew up in Los Angeles as a lawful permanent resident. After Rodriguez was sentenced to five years’ probation on a misdemeanor drug possession conviction, he was detained and targeted for deportation to Mexico, the country he had left as a baby two decades earlier. He remained locked up as his legal battle dragged on for years.
The 9th Circuit ruled not only that detainees were entitled to bond hearings but also that they should be released unless the government could demonstrate by clear and convincing evidence that they were dangerous or a flight risk. But on Tuesday Deputy Solicitor General Malcolm Stewart told the court that detainees “have no such right.” He later said that insofar as foreigners arriving in the U.S. are concerned, the Supreme Court has made it clear that “whatever process Congress chooses to give is due process.”
Yet in recent years the court has recognized not only that noncitizens have constitutional rights but that deportation can be a catastrophic experience. In June, the court overturned the guilty plea of an immigrant from South Korea because his lawyer wrongly told him he wouldn’t be deported as a consequence of a plea bargain.
The United States is often called “a nation of immigrants.” But too often immigrants haven’t received fair treatment from the courts. The cases argued this week offer the Supreme Court an opportunity to rectify that injustice.”
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”Mouthing” due process for migrants is easy; the BIA does it all the time — so does EOIR. But, actually providing due process for migrants is something totally different. Most courts, and particulately the BIA, routinely sign off on unfair procedures and interpretations that would never be considered “Due Process” in any other context.
I’m “cautiously heartened” by Justice Gorsuch’s apparent realization of the potentially catastrophic real human consequences of removal (often blithely ignored or downplayed by the BIA, Sessions, restrictionists, and Federal Courts) and recognition that the “civil-criminal” distinction is totally bogus — designed to sweep Constitutional violations under the rug — and needs to be eliminated.
As an Immigration Judge, when I was assigned to the “Detained Docket” in Arlington, I had case after case of green card holders who had minor crimes for which they paid fines or got suspended sentences — in other words, hadn’t spent a day in jail — “mandatorily detained” for months, sometimes years, pending resolution of their “civil” immigration cases. In plain language, they were sentenced to indefinite imprisonment but without the protections that a criminal defendant would receive! They, their families, and their employers were incredulous that this could be happening in the United States of America. I simply could not explain it in a way that made sense.
Talk is one thing, action quote another. But, if Justice Gorsuch folllows through on his apparent inclination to make Due Process protections for migrants “a reality” rather than a “false promise,” Constitutional protections will be enhanced for every American! We are no better than how we treat the least among us.
Ultimately, full delivery on the promise of Constitutional Due Process for everyone in America, including migrants, will require the creation of an independent Article I U.S. Immigraton Court. The current “captive system” — unwilling and unable to stand up for true Due Process for migrants — is a facade behind which routine denials of Constitutional Due Process take place. As Americans, we should demand better for the most vulnerable among us.
PWS
10-06-17
IMMIGRATIONPROF: Dean Kevin Johnson Gives Us The Supreme’s “Immigration Lineup” For Oct. 2107 — It’s Much More Than Just The Travel Ban!
Dean Johnson writes:
”The Supreme Court will hear four oral argument in four cases in the first two weeks of the 2017 Term. And the cases raise challenging constitutional law issues that could forecever change immigration law. Watch this blog for previews of the oral arguments in the cases.
Sessions v. Dimaya, Oral Argument October 2. The U.S. Court of Appeals for the Ninth Circuit, in an opinion by the liberal lion Judge Stephen Reinhardt, held that a criminal removal provision, including the phrase “crime of violence,” was void for vagueness.
Jennings v. Rodriguez, Oral Argument, October 3. The Ninth Circuit, in an opinion by Judge Kim McLane Wardlaw, found that the indefinite detention of immigrants violated the U.S. Constitution.
Dimaya and Jennings are being re-argued, both having originally been argued before Justice Scalia. One can assume that the eight Justice Court was divided and that Justice Gorsuch may well be the tiebreaker.
The final two immigration cases are the “travel ban” cases arising out of President Trump’s March Executive Order:
Trump v. Int’l Refugee Assistance Project. Oral Argument October 10.
Trump v. Hawaii. Oral Argument October 10.”
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Go on over to ImmigrationProf Blog at the above link where they have working links that will let you learn about the issues in these cases.
PWS
09-18-17
NEW BIA PRECEDENT: CAL. ROBBERY IS CATEGORICAL AGFEL — Matter of Delgado, 27 I&N Dec. 100 (BIA 2017)
BIA HEADNOTE:
“Robbery under section 211 of the California Penal Code, which includes the element of asportation of property, is categorically an aggravated felony theft offense under section 101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G) (2012), regardless of whether a violator merely aided or abetted in the asportation of property stolen by a principal.”
PANEL: BIA Appellate Immigration Judges Pauley, Guendelsberger, Malphrus
OPINION BY: Judge Pauley
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PWS
09-12-17
3RD CIR REAFFIRMS THAT 18 USC 16(B) “CRIME OF VIOLENCE” AS INCORPORATED INTO THE INA IS UNCONSTITUTIONALLY VAGUE: Mateo v. Attorney General — Supremes Remain MIA
Before: McKEE, JORDAN, and VANASKIE, Circuit Judges.
OPINION BY: JUDGE VANASKIE
KEY QUOTE:
“The petitioner in Baptiste, like Mateo, faced removal on the basis of his purported status as an alien convicted of a crime of violence under § 16(b). As stated previously, § 16(b) defines a crime of violence as “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” In order to determine whether the crime of conviction is a crime of violence under § 16(b), courts utilize the same categorical approach that was applied to the ACCA’s residual clause. Baptiste, 841 F.3d at 617. The petitioner in Baptiste argued that the Supreme Court’s holding in Johnson striking down the residual clause should apply to negate § 16(b). After comparing the features of the § 16(b) analysis to those found to contribute to the unconstitutionality of the residual clause in Johnson, we agreed that the same defects were present in § 16(b), rendering the provision unconstitutional. Regarding the first feature, we recognized that the same “ordinary case inquiry” is used when applying the categorical approach in both contexts. Id. Like the residual clause, § 16(b) “offers no reliable way to choose between . . . competing accounts of what” that “judge- imagined abstraction” of the crime involves. Johnson, 135 S.Ct. at 2558. Thus, we concluded in Baptiste that “the ordinary case inquiry is as indeterminate in the § 16(b) context as it was in the residual clause context.” 841 F.3d at 617. Turning to the second feature—the risk inquiry—we observed that despite slight linguistic differences between the provisions, the same indeterminacy inherent in the residual clause was present in § 16(b). Id. “[B]ecause the two inquiries under the residual clause that the Supreme Court found to be indeterminate—the ordinary case inquiry and the serious potential risk inquiry—are materially the same as the inquiries under § 16(b),” we concluded that “§ 16(b) is unconstitutionally vague.” Id. at 621. This conclusion applies equally to Mateo’s petition. Our treatment of § 16(b) is in step with the Sixth, Ninth, and Eleventh Circuits, which have all similarly deemed the provision to be void for vagueness in immigration cases. See Shuti, 828 F.3d at 451; Dimaya, 803 F.3d at 1120; Golicov v. Lynch, 837 F.3d 1065, 1072 (10th Cir. 2016). The Seventh Circuit has also taken this position in the criminal context. See United States v. Vivas-Ceja, 808 F.3d 719, 723 (7th Cir. 2015). In fact, the only circuit that has broken stride is the Fifth Circuit.7 See United States v. Gonzalez-Longoria, 831 F.3d 670, 677 (5th Cir. 2016) (en banc). In the meantime, we await the Supreme Court’s decision in the appeal of Dimaya.”
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The Dimaya case before the Supremes (again) should be a good test of whether newest Justice Gorsuch will adhere to his strict constructionist principles where they will produce a favorable result for a migrant under the immigration laws.
The Johnson case, relied on by the Third Circuit, was written by none other than the late Justice Antonin Scalia, a leading strict constructionist and conservative judicial icon, who nevertheless found that his path sometimes assisted migrants in avoiding removal. So, on paper, this should be a “no brainer” for Justice Gorsuch, who has also been critical of some of the BIA’s “Chevron overreach” and non-responsiveness to Article III Courts.
PWS
09-07-17