"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt and Dr. Alicia Triche, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
“Petitioner Christian Alberto Santos Garcia, a native and citizen of El Salvador, has twice travelled unlawfully into the United States — first in 2012, and again in 2016. In both instances, Garcia fled threats to his life and attacks carried out against him by the 18th Street Gang and the Salvadoran police. After seeking protection from removal before an immigration judge (the “IJ”) in 2016, Garcia was afforded relief — in the form of asylum, withholding of removal, and protection under the Convention Against Torture (the “CAT”) — by three separate IJ rulings. On each occasion, the Board of Immigration Appeals (the “BIA”) reversed the IJ rulings. Garcia, for his part, was removed to El Salvador in May 2022, and has awaited further developments in these proceedings from his home country. In this appeal, Garcia challenges and seeks reversal of three rulings made by the BIA — those being: (1) that the “particular social group” relied upon in connection with Garcia’s application for withholding of removal is not legally cognizable; (2) that Garcia was not persecuted in El Salvador on account of his political opinions; and (3) that Garcia failed to establish eligibility for CAT protection. As explained herein, we grant Garcia’s petition for review and reverse the BIA rulings in part, affirm them in part, and vacate them in part. We otherwise remand to the BIA for such further proceedings as may be appropriate.”
“Petitioner Juan Pablo Paucar petitions for review of a January 22, 2021 Board of Immigration Appeals (“BIA”) decision (1) affirming an Immigration Judge’s denial of his application for cancellation of removal and (2) denying his motion to remand. The BIA rejected Paucar’s ineffective assistance of counsel claim, declined to remand for consideration of additional hardship relating to his cancellation application, and declined to remand to await adjudication of his U visa application. Paucar argues that the BIA (1) applied an incorrect standard when reviewing his ineffective assistance of counsel claim, (2) overlooked and mischaracterized his new hardship evidence, and (3) failed to follow precedent when denying his request for remand while awaiting the adjudication of his U visa application. We are persuaded by Paucar’s arguments. Accordingly, we GRANT Paucar’s petition for review, VACATE the BIA’s decision, and REMAND for further proceedings consistent with this opinion.”
In Santos-Garcia v. Garland, the BIA’s 6-year quest to wrongfully deny protection to Santos has been thwarted, for now. But, the matter remains far from finally resolved, even though an IJ has now properly granted Santos relief three separate times, only to be wrongly reversed by the BIA on each occasion!
Rather than insuring that individual justice is done, the BIA has acted to promote injustice, create needless delay, and demoralize IJ’s who are getting it right! In the meantime, the respondent has been removed to the country where he has a well-founded fear of persecution to await his fate. This is because the 4th Circuit denied a stay they should routinely have granted in an exercise of truly horrendous judicial misjudgment.
Now, the court majority fecklessly pontificates about the need for timely resolution (you’ve got to be kidding) while hinting, but not requiring, that the “Gang That Can’t Shoot Straight” should return the respondent now. Don’t hold your breath!
Here are three of my favorite quotes from Judge King’s majority opinion in Santos Garcia v. Garland.
Put simply, the BIA declined to “interact seriously” with the record before it in reviewing Garcia’s claim for CAT protection, and its failure in that regard requires a remand.
Should we not expect a supposed “expert tribunal” like the BIA should be to “seriously interact” with the record in life-or-death cases?Why aren’t Dems in Congress and everywhere else “all over Garland like a cheap suit” to stop this kind of judicial misbehavior in his “wholly owned courts?”
In closing, we recognize that Garcia’s removal proceedings have languished before the IJ and the BIA — and now this Court — for more than six years, leaving him in limbo and presently in harm’s way in El Salvador. We are also mindful that Garcia was only 15 years old when he sought to protect his cousin from the 18th Street Gang’s advances, setting off more than a decade of hardship and uncertainty. With that, we emphasize the “strong public interest in bringing [this] litigation to a close . . . promptly.” See Hussain v. Gonzales, 477 F.3d 153, 158 (4th Cir. 2007). And although we do not direct the affirmative award of any relief, we acknowledge the compelling case for protection that Garcia has made. If, on remand, the BIA affirms either the IJ’s award of withholding of removal or the award of CAT relief, the DHS and the Attorney General should swiftly “facilitate [Garcia’s] return to the United States” from El Salvador. See Ramirez v. Sessions, 887 F.3d 693, 706 (4th Cir. 2018) (directing the government to facilitate previously removed petitioner’s return to the United States pursuant to an Immigration and Customs Enforcement Policy Directive). Moreover, if the BIA determines that Garcia’s “presence 24 is necessary for continued administrative removal proceedings” on remand, the authorities should see to his prompt return. Id.
So, after six years bouncing around the system and three separate grants of asylum by an Immigration Judge, the 4th Circuit essentially “begs” the BIA to get it right this time! This is after the court itself curiously denied the respondent’s application for stay notwithstanding the rather obvious risk of irreparable harm (e.g., death, torture) and the equally obvious substance of his timely filed appeal.
What a way to run a “justice system” (or, in this case, not)! Both the Executive and the Judiciary should be totally embarrassed by their gross mishandling of this case! But, I see resolve from neither Branch (nor the ever-absent Legislature) to put an end to this systemic mockery of due process, fundamental fairness, and simple common sense!
Here, discovering the BIA’s error in rejecting Garcia’s proposed social group of “young male family members of his cousin Emily” is no herculean task. Social groups based on family ties have been consistently approved by this Court as providing a sound basis for asylum or withholding of removal applications. See, e.g., Salgado-Sosa, 882 F.3d at 457; Hernandez-Avalos v. Lynch, 784 F.3d 944, 949 (4th Cir. 2015); Cedillos-Cedillos v. Barr, 962 F.3d 817, 824 (4th Cir. 2020). Indeed, our pivotal 2011 decision on the matter — Crespin-Valladares v. Holder — recognized in no uncertain terms that “the family provides a prototypical example of a particular social group.” See 632 F.3d at 125. In tossing out Garcia’s proposed social group in March 2021, however, the BIA largely disregarded our precedent, providing no citation to or discussion of Crespin-Valladares. The BIA instead relied chiefly on its own then-existing precedent, set forth in the Attorney General’s 2019 L-E-A- II decision. As described above, L-E-A- II — which was vacated by the Attorney General in June 2021 and thus “lacks legal force” — “conflicted with [this Court’s] well-established precedent” recognizing families as cognizable social groups. See Perez Vasquez v. Garland, 4 F.4th 213, 227 n.11 (4th Cir. 2021). Surprisingly, the BIA paid little mind to L-E-A- II’s vacatur in its Reconsideration Order of 2022, doubling down on its earlier “particular social group” ruling and again inexplicably declining to apply Crespin-Valladares and its progeny.7
Notably, the “rule of Crespin-Valledares” — my case where the BIA erroneously reversed me — continues to have an impact! A dozen years post-Crespin and the BIA is still getting it wrong! Why are these guys still on the appellate bench, setting negative precedents and ignoring favorable precedents? In a Dem Administration? Seriously!
Michelle N. Mendez, ESQ Director of Legal Resources and Training National Immigration Project, National Lawyers Guild PHOTO: NIPNLG
My friend Michelle Mendez, Director of Legal Resources and Training over at National Immigration Project offered some commentary on the Second Circuit’s decision in Paucar v. Garland.
Congratulations and thank you for your superb work, Lindsay! This case offers so much and seems like the CA2 delivered.
Here are a couple of excerpts from the decision that stood out to me:
“In a January 14, 2020 written decision, the BIA dismissed Paucar’s appeal and denied his motion to reopen and remand. Three months later—after Paucar filed a petition to review the BIA’s decision in this Court—the BIA sua sponte reinstated Paucar’s appeal and motion, noting that it had not “consider[ed] all of the evidence submitted by [Paucar].” Id. at 124.” [Do we know why the BIA sua sponte reinstated the appeal and motion?] LINDSAY NASH RESPONDS: “The BIA only sua sponte reopened the appeal and motion because Paige Austin (co-counsel extraordinaire, copied here) filed a PFR and identified the missing evidence early on, prompting OIL to agree to a remand.”
“Finally, the BIA concluded that remand to await the adjudication of Paucar’s U visa petition was unnecessary because Paucar could request a stay of removal from USCIS.” [Does anyone know what the BIA was referencing here? Later on the decision says DHS and not USCIS so perhaps it is a typo.] LINDSAY NASH RESPONDS: “I think that the reference to USCIS that you flag was a typo and that it should have said DHS.”
“We conclude that the BIA should have applied the Sanchez Sosa factors in considering Paucar’s motion to remand as it pertains to his U visa or explained its reasoning for not doing so. [This is the first time that the CA2 answers the question of whether Sanchez Sosa applies to motions to remand or reopen filed during the pendency of an appeal where the noncitizen did not previously request such a continuance before the IJ].”
There is a great discussion on the BIA improperly applying Coelho (which they love to throw around in correctly) to the prejudice assessment and a paragraph discussing how the CA2 and other courts of appeals view unpublished BIA decisions.
Again, really great work and outcome! Thanks for sharing with all of us, Dan!
For a case distinguishing Coelho and applying a “reasonable likelihood of success” standard to a MTR, see Matter of L-O-G-, 21 I&N Dec. 436 (BIA 1996), written by me! The BIA ignores it or misapplies it in many cases. But, it’s still “good law!” Just another instance in which the BIA evades “older” precedents that could produce favorable outcomes for respondents!
In this case the IJ denied the respondent’s applications and ordered removal in May 2018, five years ago. Nobody contests that the respondent was ineffectively represented at that time.
Through new pro bono counsel, respondent Paucar filed a timely appeal with the BIA. Less than two months following the IJ’s decision, new counsel filed a copiously documented motion to the BIA to remand for a new hearing because of the ineffective representation.
Rather than promptly granting that motion for a new hearing, the BIA set in motion five years of dilatory effort on their part to avoid providing a hearing. Obviously, several new merits hearings could have been completed during the time occupied by the BIA’s anti-immigrant antics!
Along the way, according to the Second Circuit, the BIA “improperly imposed a heightened standard,” “erred by discounting the impact of counsel’s ineffectiveness,” “improperly relied] on the IJ’s tainted findings,” “overlooked and mischaracterized the record evidence,” “erred by overlooking or mischaracterizing evidence,” “overlooked and mischaracterized material evidence,” and failed, without explanation, “to follow its own precedent.” What else could they have screwed up? The file number?
This would be highly unacceptable performance by ANY tribunal, let alone one entrusted with making life or death decisions about human lives and whose decisions in some instances have been unwisely insulated from effective judicial review by Congress. Individuals appearing before EOIR deserve better! American justice deserves better! How long will AG Garland continue to get away with failing to “clean house” at America’s most dysfunctional court system and bring order, due process, fundamental fairness, legal expertise, and judicial professionalism to this long-overlooked, yet absolutely essential, foundation of our entire U.S. justice system!
Wasting time and resources looking for bogus ways to deny that which better, more expert, fairer judges could easily grant his had a huge negative impact on the EOIR backlog and is a driver of legal dysfunction throughout the immigration bureaucracy, and indeed throughout our entire legal system, all the way up to and including the Supremes!
Start by fixing “that within your control!” That’s a simple message that Dems, unfortunately, don’t seem to get when it comes to immigration, human rights, and racial justice in America!
When nearly 50 Venezuelan migrants were left stranded in Martha’s Vineyard last month after Florida GOP Gov. Ron DeSantis flew them to the island from Texas, they had no employment, housing or clear pathway to citizenship.
But this week, the Bexar County Sheriff’s Office, which oversees the San Antonio area and previously opened an investigation into the flights, agreed to certify that the migrants had sufficiently cooperated with its investigation and are now eligible to apply for “U” visas, a kind of immigration status for victims of certain crimes that occur on U.S. soil.
The visas require that a law enforcement officer sign the application before it can be sent to U.S. Citizenship and Immigration Services.
Rachel Self, a Martha’s Vineyard-based attorney who has been coordinating the migrants’ immigration cases, said Wednesday that she flew to San Antonio to obtain the required signatures from the sheriff’s office.
“I now hold in my hand certifications for every one of Perla’s victims,” Self wrote in a statement, referring to Perla Huerta, the woman believed to be responsible for recruiting migrants in San Antonio on behalf of DeSantis.
. . . .
The U visa process, however, won’t be easy or quick, either. According to Department of Homeland Security data, more than 285,000 U visa petitions are pending as of fiscal year 2021, and Congress has capped the visas at 10,000 per year. Once the visas are approved, the migrants must wait three years to apply for a green card and five more years for citizenship.
But once the Venezuelans submit their applications, they will likely be allowed to work and protected from deportation. Last year, the federal appellate court that covers Massachusetts ruled that a Honduran man could not be removed from the country while his U visa application was pending.
“Ironically by choosing to transport the migrants to Martha’s Vineyard […], all of these victims are now protected from removal while their U visa application is pending due to the Granados Benitez case,” Self wrote in her statement. “These certifications will ensure that the migrants can continue to help our law enforcement officials, and that they will be able to process and heal from the incredibly traumatic experiences they have suffered as a result of the cruel, heartless acts committed against them.”
Melody Busey ESQUIRE Associate Attorney Devine & Beard Law Office Charleston, SC PHOTO: Devineandbeard.comIt should have been a 2-minute “no brainer” administrative closing @ EOIR. Instead, it took two years of tough, smart, dedicated litigation by their firm to get justice in Garland’s broken and dysfunctional “Clown Court” system. But, in the end, Melody Busey, Mark Devine, & Ashley Beard got long-overdue justice for their client by pummeling “Garland’s DOJ Clown-ocracy” in the Fourth Circuit! Should justice in America really be this difficult and uncertain? Garland seems to think so! — Mark J. Devine & Ashley R. Beard Principal Partners Devine & Beard Law Office Charleston, SC PHOTO: Devineandbeard.com
Garcia Cabrera v. Garland, 4th Cir., 01-06-21, published
PANEL: MOTZ, QUATTLEBAUM, and RUSHING, Circuit Judges.
OPINION: Judge Motz
CONCURRING OPINION; Judge Rushing
KEY QUOTE:
In sum, we hold that the BIA and IJ abused their discretion in denying Garcia
Cabrera’s motion for a continuance. Both the BIA and IJ departed from the established policies set forth in precedential opinions in holding that Garcia Cabrera failed to show good cause. Under Matter of L-A-B-R-, the BIA and IJs must consider two factors above all others: (1) the likelihood that USCIS will grant the movant’s U visa application, and (2) whether a U visa would materially affect the outcome of the movant’s deportation proceedings. 27 I. & N. Dec. at 406. Both of these factors weigh in Garcia Cabrera’s favor. The BIA recognized the existence of these factors but failed to consider whether or how they applied, focusing solely on less significant secondary factors. And although the IJ did address the primary factors, he nonetheless abused his discretion by failing to recognize that a U visa would materially affect the outcome of the deportation proceedings.
******************
Many, many congrats to NDPA stars Melody Busey, Mark J. Devine, and Devine & Beard Law Office in Charleston, SC, for their perseverance and outstanding advocacy in this case! As I’ve said before, it’s painfully obvious (to anyone but Garland and his team) that the wrong folks are on the bench and in key policy positions at EOIR!
Notably, this decision comes from an ideologically diverse 4th Circuit panel with two Trump appointees. Clearly, this panel took more time to understand the record and carefully and correctly analyze the applicable law and policy considerations than did the “faux experts” at EOIR, at either the trial or appellate levels!
Although I don’t always agree with Judge Rushing, her concurring opinion here shows that she took the time to carefully read the record, understand the applicable law, and clearly explain her position in straightforward, understandable terms. In other words, she treated this case like the important life or death matter it is, rather than “just another immigration case on the assembly line.” And, that led her to get the “bottom line” right. That’s a degree of judicial professionalism that we seldom, if ever, see from Garland’s EOIR these days.
That we get better performance on immigration cases from some Trump appointees on the Article IIIs than from Garland’s “wholly-owned EOIR” shows the total disconnect in theBiden Administration’s approach to the ongoing, unmitigated disaster unfolding every day in our broken and dysfunctional Immigration Courts. Unlike the Article IIIs, the Immigration Courts, now sporting an astounding, largely self-created 1.5+ million and growing case backlog, are a “wholly owned subsidiary” of the Administration and Garland’s DOJ!
When you’re in an EOIR “programmed to deny” by White Nationalist nativist overlords like Sessions, Barr, and Miller, you do dumb things and churn out sloppy work.
Indeed, “virtual discussion” of this case spurred some “PTSD” recollections by NDPAattorneys of other horrible, lawless decisions by this particular Immigration Judge, who never should have been on the bench in the first place. Incredibly, this judge, a member of the disgraceful “90% Denial Club” that has helped create disgusting “Asylum Free Zones” at EOIR throughout America, was appointed by the tone-deaf Obama Administration!
The idea that there weren’t better-qualified candidates out there at the time in private practice, the NGOs, clinical education, or even the government is simply preposterous! Failure of Dems to realize the progressive potential of the Immigration Courts has a long and disreputable history! Indeed, EOIR under Garland looks and performs disturbingly similar to EOIR under Miller, Sessions, and Barr!
While this particular IJ has retired, too many other unqualified judges appointed in the past under selection systems stacked against outside advocates and experts remain on the bench, at both the trial and appellate levels, under Garland.
Here’s part of the “Garland Tragedy/Missed Opportunity.” He actually has at least a few folks among his judiciary ranks who have experience and actually understand U visas and how to deal properly, justly, and efficiently with them. I guarantee that none of them would have come up with this inane and wasteful performance of judicial ineptitude and, frankly, anti-immigrant bias!
Why aren’t those folks “running the show” on the BIA, rather than the “deny anything for any reason” holdover gang that (save for Judge Saenz) Garland has “adopted as his.” Excluding Judge Saenz, I doubt that collectively the appellate judges on the BIA have ever handled a U visa case for an applicant. They are blissfully clueless as to both the practical stupidity and traumatic human consequences of the horrible decision-making exhibited at both the trial and appellate levels in this debacle! What’s a wrong with this bizarre picture of Dem incompetence and malfeasance?
Interesting that White Nationalist xenophobes like Sessions, Barr, and Miller had no problem whatsoever using their positions to further lies and myths about asylum seekers and other migrants and acting to weaponize the Immigration Courts (including “packing”them with unqualified and questionably qualified judges, unfairly selected) against individuals and their lawyers seeking justice (following eight years of indolent mismanagement of EOIR by politicos in the Obama DOJ which “teed EOIR up” for Trump and Miller).
By contrast, Dems appear afraid to speak out and act with resolve and purpose on due process, fundamental fairness, human rights, impartial professional expert judging, and human dignity — at our borders and in our Immigration Courts. Why?
Is is because deep down they don’t really believe in racial justice and equal justice for all? Because they can’t accept the humanity of migrants? Why is Garland still carrying out many of Stephen Miller’s White Nationalist policies and using a “court system” unfairly “packed” with those selected because they were perceived to be willing to carry out the Trump/Miller White Nationalist, anti-immigrant agenda?
More than nine months after taking over at “Justice,” why is Garland still defending clearly wrong, counterproductive, and frivolous EOIR decisions like this? Why should simple justice for migrants require a two-year battle by members of the NDPA to be realized?
And, I daresay that there are other panels, in other Circuits, that would have “rubber-stamped” EOIR’s errors. Lack of professionalism and judicial expertise at EOIR, promoted and defended by Garland, breeds wildly inconsistent results and turns justice in life or death cases into a “crap shoot.” That undermines and builds contempt for the entire Federal Justice System and exposes deep flaws at the DOJ that Garland has ignored!
In a functioning system, this case involving someone who is prima facie qualified to remain in the US: 1) should never have been brought by DHS, and 2) if brought, should have been promptly administratively closed or terminated without prejudice by EOIR. A competent judge might also have considered sanctioning DHS counsel for pushing ahead with this case with no justification whatsoever. In other words, conducting frivolous litigation!
That’s how you: 1) cut cases that don’t involve legitimate enforcement issues from the intentionally bloated EOIR docket; 2) reduce incredible, largely self-created backlogs; 3) hold DHS accountable for wasting court time; 4) deliver a long overdue “shape up or ship out” message to poorly performing Immigration Judges (like those in this case) at both the trial and appellate levels; 5) promote consistency and equal justice for all; 6) end the reprehensible practice of “Aimless Docket Reshuffling” at EOIR; and 7) stop wasting the time of the Article IIIs by defending garbage like that churned out at both the IJ and BIA level here!
Garland has demonstrated cluelessness, timidity, and intransigence in all of the foregoing essential areas of long overdue radical, yet common-sense and basically “no brainer,” progressive reforms at EOIR! You can’t get there with the current, holdover BIA! That’s as clear today as it was the day Garland was sworn in as AG.
The Biden Administration’s gross failure to bring progressive leadership, scholarship, competency, quality, and professionalism to a poorly performing, dysfunctional EOIR is corroding our justice system! Seems like an incredibly bad stance for an Administration claiming to be the “last best hope” for preserving American democracy, heading into midterms with a significant portion of its reliable progressive base angry and turned off by its contemptuous mal-performance on immigration, human rights, racial justice, and EOIR reforms!
Sometimes, just asking for financial support and votes isn’t enough! You have to earn it with bold actions!
“Plaintiffs have sufficiently alleged that USCIS has unreasonably delayed the adjudication of their U-visa applications. Because the BFD [“Bona Fide Determination”] process was issued after Plaintiffs’ complaints were filed, Plaintiffs should be allowed to amend their complaints should they wish to assert that USCIS has unreasonably delayed its determination that their U-visa applications are “bona fide.” … We hold that the issuance of the BFD Process moots no part of this case. We hold that 5 U.S.C. § 701(a)(1), 8 U.S.C. § 1252(a)(2)(B)(ii), and 5 U.S.C. § 701(a)(2) do not bar the federal courts from reviewing claims that USCIS has unreasonably delayed placing principal petitioners on the U-visa waitlist and adjudicating prewaitlist work-authorization applications. We hold that the federal courts may compel USCIS to place principal petitioners on the U-visa waitlist when an unreasonable delay has occurred per 5 U.S.C. § 706(1). We hold that § 706(1) allows the federal courts to command USCIS to hasten an unduly delayed “bona fide” determination, which is a mandatory decision under 8 U.S.C. § 1184(p)(6) and the BFD process. We hold, however, that the federal courts cannot invoke 5 U.S.C. § 706(1) to force USCIS to speed up an unduly delayed prewaitlist work-authorization adjudication, which is a nonmandatory agency action under 8 U.S.C. § 1184(p)(6) and the BFD process. We hold that Plaintiffs have sufficiently pleaded that USCIS has unreasonably delayed the principal petitioners’ placement on the U-visa waitlist. We further hold that Plaintiffs should be permitted to amend their complaints should they wish to challenge any delayed “bona fide” determinations. We thus REVERSE the district courts’ grants of the Government’s motions to dismiss and REMAND for further proceedings.”
Just another in the continuing litany of why Mayorkas and Garland aren’t getting the job done for immigrants. They continue to: 1) mindlessly defend Trump-era screw ups and invidiously motivated actions; 2) attempt to weasel their way out of accountability for misdeeds by their agencies. This case should have been settled, plain and simple!
The only good thing about the dilatory litigation tactics employed by DHS and DOJ is that they are building up some good case law precedents for those challenging Government immigration actions and hopefully costing the DOJ attorneys’ fees that can be plowed back into public interest litigation. Actually, the DOJ should be litigating “in the public interest,” but apparently someone forgot to tell “Team Garland.”
Trump and his xenophobic, insurrectionist colleagues were not a “normal” Administration. For the Biden folks to continue to ignore that and pretend like the White Nationalist, anti-democracy actions of the Trump kakistocracy/bureaucracy were “business as usual,” will be a never-ending disaster for the Dems!
“Kevelin Danery Espinal-Lagos and her two minor sons were ordered removed to Honduras by an Immigration Judge. While their appeal was pending before the Board of Immigration Appeals, the petitioners filed derivative U visa applications with United States Citizenship and Immigration Services that, if granted, would allow them to move to reopen their removal proceedings. Accordingly, the petitioners filed a motion requesting that the Board remand their case so that they could seek a continuance from the Immigration Judge pending the resolution of their derivative U visa applications. The Board dismissed their appeal and denied their motion to remand, reasoning that their “U-visa eligibility and the steps being taken in pursuit of a U-visa could have been discussed at the hearing before the Immigration Judge entered a decision.” For the narrow ground articulated herein, we hold that the Board abused its discretion in its reason for denying the petitioners’ motion to remand. … Espinal-Lagos did not become prima facie “eligible” for a derivative U visa until her husband filed his U visa application with USCIS on July 6, 2018—several months after her hearing before the IJ on February 7, 2018. Indeed, during oral argument when asked, “When was Ms. Espinal-Lagos eligible for a U visa?”, the Government responded that she was “eligible when it’s filed”—“it” being Bethanco’s U visa application.1 The position the Government urges—that Espinal-Lagos should have disclosed to the IJ her potential future eligibility given the district attorney signature on her husband’s U visa certification— has no basis in the regulations. Therefore, the Board’s denial of Espinal-Lagos’s motion to remand was based on a legally erroneous interpretation of the governing regulations. Navarrete-Lopez, 919 F.3d at 953. The Board’s decision was also irrational because it required Espinal-Lagos to have presented information to the IJ that could not have been discovered or presented at that time. … Because the Board abused its discretion in its single reason for denying Espinal-Lagos’s motion to remand, we grant the petition for review and REMAND to the Board for proceedings consistent with this opinion.”
Although this case is unpublished, it’s significant for these reasons:
The “super-conservative” 5th Circuit seldom reverses removal orders;
Granting the legally-required remand in this case would have been about a 30-second “adjudication” (tops) by a competent BIA appellate judge;
Instead of confessing error and asking for a remand, OIL defended this clearly wrong garbage, a likely violation of ethics, an abuse of the Circuit Court’s time, and dilatory action that took the Fifth Circuit two years to correct;
Why would a rational, ethical system even want to remove a family eligible for derivative U status, let along violate the law and make extra work to achieve an irrational, inhumane, and counterproductive result;
For Pete’s sake, this was an UNOPPOSED MOTION TO REMAND at the BIA, but incompetent judges, bad lawyering, and a vile anti-immigrant culture at DOJ created an unnecessary disaster;
As those of us who are actually familiar with the EOIR system know, mistakes like this are a daily, if not hourly, occurrence at today’s thoroughly dysfunctional EOIR! It’s just that relatively few individuals are fortunate to have the time, knowledge, and competent legal assistance to obtain justice at the Court of Appeals level.
NO, Judge Garland, as all outside experts have been telling you, the answer to largely unnecessary, self-created, out of control EOIR backlogs is NOT “dedicated dockets,” idiotic quotas, more mindless gimmicks, or even throwing more judges into an already out of control and dysfunctional system.
It starts, but does not end, with replacing the BIA and incompetent judges at EOIR with qualified progressive experts, bringing in dynamic progressive judicial leadership that solves problems rather than creates them, ending the anti-immigrant “culture of denial” at EOIR and DOJ generally, installing real, due-process-focused training and giving new progressive expert judges independence to establish and enforce quality decision-making, due process, and best practices!
Also, OIL needs a remake and some leadership from skilled, progressive immigration litigators committed to “speaking for justice,” using judicial time wisely, and making the system work rather than mindlessly assisting in the building of backlog.
Due process is a team effort! Sadly, after four years of enabling and defending the indefensible actions of the Trump fascist kakistocracy, there aren’t many folks out there at EOIR and DOJ generally who can “play this game.”
“Can’t anyone here play this game?” So far, the answer at Garland’s EOIR is a resounding “No!” PHOTO: Rudi Reit Creative Commons
🇺🇸Due Process Forever!
PWS
08-27-21
ADDENDUM:
Even as I was writing this, Dan Kowalski sent me yet another 5th Circuit BIA remand. This one was on “divisibility” and was the result of three years of litigation to correct the BIA’s unprofessional work. THAT’S what generates unnecessary backlogs! Efficiency comes from getting thing right in the first instance, particularly when proceedings should be terminated or relief granted.
“Sajid Momin Wali, a native and citizen of Pakistan, became a lawful permanent resident in 2012. In 2017, he pleaded guilty in Texas state court to possession with intent to deliver a synthetic cannabinoid. As a result, he was charged as removable under 8 U.S.C. § 1227(a)(2)(B)(i) for having been convicted of a state-law crime relating to a controlled substance defined in the Controlled Substances Act, 21 U.S.C. § 802. Both the Immigration Judge and the Board of Immigration Appeals sustained that removability determination, concluding that although the Texas statute that formed the basis of Wali’s conviction was broader than the Controlled Substances Act, Wali was removable because the Texas statute under which he was convicted was divisible. After the BIA issued its decision, this court decided Alejos-Perez v. Garland, 991 F.3d 642 (5th Cir. 2021). Under Alejos-Perez, the BIA’s determination that Wali’s statute of conviction was divisible was error. Accordingly, we grant Wali’s petition for review, reverse the BIA’s order, and remand for the BIA to reconsider whether Texas Penalty Group 2-A is divisible in light of Alejos-Perez.”
[Hats off to Amber Gracia for fighting this case since 2018!]
Amber García, Esquire Houston, TX PHOTO: AVVO
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Way to go, Amber! Welcome to the NDPA “star circle!” 🌟 Amber knows “crimigration!” Why doesn’t the BIA?
Why hasn’t Garland brought in better progressive judges? Why does he think the human lives and futures at stake in Immigration Court are expendable? ☠️👎🏽🤮
This is NOT, I repeat NOT, how an “expert court” functions! And, you can’t create and operate an expert court without experts. The “expertise” needed to fix this system is primarily on the outside. Garland needs to make long overdue personnel, leadership, structural, and attitude changes at EOIR! Lives are at stake, and they are “chargeable” to Garland!
🇺🇸DPF!
PWS
08-27-21
ADDENDUM #2
BIA screwups on the x’s and o’s of judicial decision-making continue to “burn up the internet.”
Here’s yet another unpublished rebuke from the 2d Cir. on EOIR’s “any reason to deny worst practices” sent in by my colleague “Sir Jeffrey” Chase of Round Table ⚔️🛡fame:
We conclude that the BIA and IJ erred by relying on an alleged inconsistency between Tamrakar’s testimony before the IJ that the Maoists threatened him and tried to grab him before he escaped and Tamrakar’s statement during his credible fear interview that the Maoists left after threatening him to support its adverse credibility determination without first raising that discrepancy to Tamrakar. That inconsistency was not “self-evident,” Ming Shi Xue, 439 F.3d at 114, because, during the same credible fear interview, Tamrakar stated that the Maoists “tried to grab [him] but [he] ran away from them.” A.R. at 369. This statement was consistent with his testimony. Because the IJ and BIA “relied on the combined force of [three] inconsistencies,” Singh, 2021 WL 3176764, at *7, and did not provide Tamrakar the opportunity to explain one of them, we “cannot confidently predict whether the agency would adhere to [its] determination absent [its] error[].” Id. at *4. Further lessening our confidence, one of the other inconsistencies that the BIA and IJ relied on (whether Tamrakar’s friend accompanied him during the first incident or not) is closely analogous to one that our Court determined gave “no substantial support” to an adverse credibility finding on its own. Id. at *8 (noting that an inconsistency regarding whether a third party accompanied the petitioner to the police station after a key attack could be explained by differing recollections or another innocent explanation). Because we cannot confidently predict what the agency would do absent error, we vacate its decision.
Unfortunately, chronically sloppy work and wrongful denials have become so “routinized” at EOIR that the Circuits don’t even publish many of them any more! But, there are plenty of them out there!
They are just the “tip of the iceberg” of the systemic unfairness, racially-tinged bias, utter disdain for due process, lack of equal justice, unprofessionalism, glaring lack of expertise, and gross abuse of Government resources taking place in “Garland’s Star Chamber/Clown Courts!” Even one of these these is one too many!
The Human Rights advocacy community needs to organize and demand progressive changes from Garland, starting with long-overdue personnel and leadership changes at EOIR! How many more vulnerable individuals will be wrongfully denied or deported before a “responsible government official” (of which there seems to be as distinct shortage at Garland’s DOJ) pulls the plug 🔌 on this ongoing, intolerable human rights and racial justice farce going on at the DOJ!
“Reading the broad language of §§ 1003.10(b) and 1240.1(a)(1)(iv), we conclude that these regulations give the IJ the Attorney General’s discretionary authority to grant a § 1182(d)(3)(A)(ii) waiver. … [W]e grant the petition, vacate the BIA’s final removal order, and remand for further proceedings consistent with this opinion.”
Seldom has a supposed quasi-judicial tribunal worked as hard as the current BIA to find limits on its ability to solve legal and humanitarian problems. That leaves the work to the Circuits, as in this case.
So, why have EOIR at all? The system clearly is unconstitutional because it lacks fair and impartial adjudicators and even minimally competent administration of due process. If Garland, Monaco, and Gupta have no interest in fixing these glaring problems, then why not just transfer EOIR’s functions to the U.S. District Courts and U.S. Magistrate Judges under the supervision of the Courts of Appeals?
Dems talk big about the need for a more progressive Federal Judiciary to achieve racial justice. But, given the chance actually to create one, they sit on their hands!
Not so the GOP! Restrictionists, nativists, reactionaries and White Nationalists recognize the repressive power of a captive and co-opted Immigration Judiciary and act accordingly. “Act” — that’s the operative word that doesn’t appear to be in the Dem’s vocabulary when it comes to building a better Federal Judiciary for a better America.
Progressives might initially have cheered the appointment of these three to top leadership posts @ the DOJ. But, to date, they have shown no interest in rescinding Stephen Miller’s White Nationalist immigration policies or replacing Miller’s nativist judges with progressive expert judges @ EOIR.
Judge Merrick B. Garland, U.S. Attorney General Official White House Photo Public RealmLisa Monaco Deputy AG Official USG Photo, Public RealmVanita Gupta Associate Attorney General Photo: Brookings Institution, Paul Morigi, Creative Commons License.
“The BIA erred in imposing evidentiary requirements of ongoing injury or treatment beyond the sexual assault itself in order to show persecution. Kaur’s credible testimony about the attempted gang rape is sufficient to show persecution. Attempted rape by a gang of men, in broad daylight on a public street, is especially terrorizing because it powerfully demonstrates the perpetrator’s domination, control over the victim and imperviousness to the law. Requiring evidence of additional harms both minimizes the gravity of the sexual assault and demeans the victim. We grant Kaur’s petition for review and remand for further proceedings consistent with this opinion.”
[Hats off to Douglas Jalaie!]
1st Calls Out Violation Of Regs, Incredibly Stupid Denial Of Reopening For Approved U Visa Petition Beneficiary Waiting For “Number:”
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
“Petitioner Carlos Antonio Granados Benitez seeks review of the Board of Immigration Appeals’ (“BIA” or “Board”) denial of his motion to reopen his removal proceedings and to remand to the immigration judge (“IJ”) for further consideration in light of the fact that he had been placed on a waiting list by United States Citizenship and Immigration Services (“USCIS”) for a U-1 nonimmigrant visa (“U visa”) pursuant to the Victims of Trafficking and Violence Protection Act (“VTVPA”), Pub. L. No. 106-386, § 1513(a)(2)(A), (b), 114 Stat. 1464 (2000) (codified as amended at 8 U.S.C. § 1101(a)(15)(U)). Because we find that the BIA abused its discretion, in that it failed to render a reasoned decision that accords with its own precedent and policies, and it further failed to consider the position of its sister agency Immigration and Customs Enforcement (“ICE”), we grant the petition. In so holding we join the views of the Seventh Circuit in Guerra Rocha v. Barr, 951 F.3d 848, 852- 54 (7th Cir. 2020).”
[Hats off to Paige Austin, with whom Philip L. Torrey, Make the Road New York, and the Harvard Law School Crimmigration Clinic were on brief, for petitioner, and Brian D. Straw, Gregory E. Ostfeld, and Greenberg Traurig, LLP on brief for ASISTA Immigration Assistance, Asian Pacific Institute on Gender-Based Violence, National Coalition Against Domestic Violence, National Network to End Domestic Violence, Safe Horizon, and Tahirih Justice Center, amici curiae!]
3rd “Perplexed” By BIA’s Ignorance Of “Equitable Tolling,” Own Authority:
“Hey, guys, ever hear of something called “equitable tolling?” “Nah, is it spelled D-E-N-I-E-D?” “Equitable TROLLING,” I’ve heard of that?”https://www.flickr.com/photos/rasputin243/ Creative Commons License
“Because Nkomo properly raised equitable tolling before the BIA, the BIA erred in failing to consider her request for equitable tolling on the merits. We remand for the Board to do so in the first instance.”
“The BIA’s suggestion that it does not have the authority to make decisions on equitable grounds is perplexing. The BIA has authority to equitably toll the deadline for motions to reopen the precise relief Nkomo sought.”
Demeaning rape victims! ☠️🤮👎🏻 So, what else is new @ EOIR? “Gonzo” Sessions 🦹🏿♂️ set the tone for anti-asylum, racially motivated misogyny in Matter of A-B- and “his judges” have taken it from there! (I repeat my oft-made observation: What kind of “due process” system lets a characters like Sessions, Whitaker, and Barr “own” judges? How would you like to be a woman on trial for her life before a “judge” selected, directed, and “owned” by the likes of these men with clear records of “applied contempt” for equal justice? Sessions, Whitaker, Barr, & Jeffrey Rosen are gone — but their legacy of bias and injustice lives on @ EOIR!)
One of my esteemed Round Table 🛡⚔️ colleagues summed up the latest set of outrageous miscarriages of justice from Falls Church:
All of these decisions demonstrate the degree of careful and detailed analysis that these cases require.And yet the BIA couldn’t keep staff attorneys after McHenry capped them at GS-13 (entry level), and keeps increasing the monthly quotas for BIA staff attorneys.Plus of course the Board Members themselves are now all these types who only review the decisions to make sure they end in the word “dismissed.”
If you were trying to create a recipe for disaster, you couldn’t have planned it better.
I heard the latter comment twice yesterday from immigration/human rights/due process experts on opposite sides of our country who observe and participate in the system at various levels.
To quote Justice Sotomayor’s recent dissent: “This is not justice.”
Historical Footnote:One of my first actions as BIA Chair in 1995 was to establish a “GS-15 Career Ladder” for all Attorney Advisors at the BIA. This made the BIA competitive with the rest of the DOJ.
It allowed us to attract and retain not only “top talent” coming from the “DOJ Honors Program” (how I got my first job at the BIA in 1973), but also outstanding career attorneys who wanted an opportunity to do research, writing, and “applied scholarship” that made a difference in individuals’ lives. Indeed, at various times the BIA has had on its staff former Senior Executives seeking a “change of focus” to a career that allowed them to do the things they liked best about the law.
One of them was a former SES colleague at the “Legacy INS” who found in transferring to a GS-15 BIA Attorney Advisor position a career satisfaction, fulfillment, and sense of meaningful contribution that person had been missing in INS management at that time.
Reducing the top grade for Attorney Advisors is not only professionally and personally demeaning, it also marks the entire organization as “second class” and shows just how stupid and incompetent (and, in recent history, overpaid) EOIR “management” has become! And, as pointed out in my colleague’s comments above, it has not only adversely affected careers but the human lives in the balance on the BIA’s docket.
As I understood my “mission” from then Attorney General Janet Reno in 1995, the BIA was supposed to be about “attracting the best and the brightest judges and supporting them with the best and brightest staff.” Essentially getting it to function like the “12th Circuit” was a description mentioned during my interview process for the Chair job.
Sadly, now, it has become an assembly line of expediency, injustice, shoddy legal work, mindless “corner cutting,” unprofessional behavior, and human misery.
To repeat my colleague’s comment: “If you were trying to create a recipe for disaster, you couldn’t have planned it better.”
All of these cases should have been resolved in the foreign national’s favor without ever getting to the Courts of Appeals! Bad judging, grossly incompetent administration, and lack of qualified, dynamic, judicial leadership from respected “practical scholars” costs lives, produces unacceptable and unfair inconsistencies, and clogs the Article III Courts with unnecessary litigation.
Indeed, the First Circuit’s decision in Granados basically reveals OIL’s “smorgasbord” of bogus arguments to uphold the BIA’s incorrect decision as “without merit” — actually frivolous! There are deep problems @ DOJ resulting from the ongoing corruption and disregard for ethics and professional leadership from the now-departed kakistocracy! They go far beyond the mess at EOIR!
Sure hope that Judge Garland, Vanita Gupta, and their incoming team @ DOJ have a comprehensive plan for replacing the BIA and reforming EOIR! The human beings suffering in this disgracefully inept and abusive “court system” and their courageous, long suffering attorneys are counting on you! Think of it this way: What if YOUR daughter were the rape victim demeaned, dehumanized, and denied justice by EOIR?
Baez-Sanchez v. Barr, 7th Cir., 01-23-20, published
PANEL:BAUER, EASTERBROOK, and HAMILTON, Circuit Judges.
OPINION BY: Judge Easterbrook
KEY QUOTE:
What happened next beggars belief. The Board of Immigration Appeals wrote, on the basis of a footnote in a letter the Attorney General issued after our opinion, that our deci- sion is incorrect. Instead of addressing the issues we specified, the Board repeated a theme of its prior decision that the Secretary has the sole power to issue U visas and therefore should have the sole power to decide whether to waive in- admissibility. The Board did not rely on any statute, regulation, or reorganization plan transferring the waiver power under §1182(d)(3)(A)(ii) from the Attorney General to the Secretary. Nor did the Board discuss whether only aliens outside the United States may apply for relief under §1182(d)(3)(A)(ii). Likewise the Board did not consider whether Baez-Sanchez is entitled to a favorable exercise of whatever discretion the Attorney General retains. In sum, the Board flatly refused to implement our decision. Baez- Sanchez has filed a second petition for review.
We have never before encountered defiance of a remand order, and we hope never to see it again. Members of the Board must count themselves lucky that Baez-Sanchez has not asked us to hold them in contempt, with all the consequences that possibility entails.
The Board seemed to think that we had issued an advisory opinion, and that faced with a conflict between our views and those of the Attorney General it should follow the la]er. Yet it should not be necessary to remind the Board, all of whose members are lawyers, that the “judicial Power” under Article III of the Constitution is one to make conclusive deci- sions, not subject to disapproval or revision by another branch of government. See, e.g., Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995). We acted under a statutory grant of authority to review the Board’s decisions. 8 U.S.C. §1252(a)(1). Once we reached a conclusion, both the Constitution and the statute required the Board to implement it.
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A NOTE TO THE 7TH CIRCUIT AND OTHER ARTICLE III JUDGES:
My sympathies to you.
But, frankly, rather than coming as a “shock,” you should know that similar stuff happens every day in our U.S. Immigration Courts, which are not “courts” by any known definition, do not provide fair and impartial decision makers, do not satisfy even minimal standards of Constitutional Due Process, and operate in a blatantly unconstitutional manner that you and your colleagues in other circuits and the Supremes have condoned for decades as it unfolded right under your noses. Contempt for the law, disregard of basic Due Process and fundamental fairness, bias against immigrants, particularly asylum seekers, rude treatment, disrespect for lawyers, contempt for the other coequal branches of Government, and failure to respect human decency and dignity are now among the “staples” of today’s “captive” Immigration Courts.
It’s just that most litigants don’t have the wherewithal and and access to competent lawyers to take their cases all the way to the Circuit Courts, sometimes several times as happened in this particular case, in a search for justice. They are, in very plain terms, simply railroaded out of the country without regard to the law or our Constitution.
Sadly, even when they do get before your colleagues across the country, far too many of them ignore the contemptuous travesty of justice being perpetrated by the Department of Justice in the Immigration “Courts.” They merely “rubber stamp” the defective final product. It’s called “going along to get along” or “cowardice in the face of tyranny.”
For some reason, not obvious those of who once put our careers on the line to stand up for justice and the legal rights and human dignity of the most vulnerable among us, many, many Article III Judges seem to treat “life tenure” as a sinecure that empowers them to ignore needlessly ruined lines and human suffering, rather than as an opportunity, given to none others within our democratic institutions, to stand up for truth, justice, and the Constitution, even in the face of an overbearing and tyrannical Executive who has no respect for your functions.
Since you seem to have disturbingly little understanding of the true nature of the system which forms a significant part of your appellate workload, let me help you out. Members of the Board of Immigration Appeals are not true “judges” in any sense of the word. They are “employees” of Attorney General Billy Barr.
Billy himself is an acolyte of the “Unitary Executive” — a neo-fascist concept described by former White House Counsel and ex-con John Dean as meaning “that neither Congress nor the federal courts can tell the President what to do or how to do it.” In Billy’s view,. the power of Donald Trump, or any other GOP President (I doubt that he would apply it to a Democrat President), is unlimited and unfettered and the functions of the Judiciary and the Legislature are largely meaningless, except to the extent that they align with Trump’s agenda. The same goes for the U.S. Constitution and the U.S. Code. They are nothing more than what Donald Trump and his toadies like Billy say they are.
Billy Barr is also an unapologetic agent of DHS Enforcement. Although nominally listed as a “party” before these “kangaroo court’ proceedings involving migrants, Barr and his equally contemptuous and lawless predecessor, Jeff “Gonzo Apocalypto” Sessions, have made it clear that “their judges” are to operate as an adjunct of their “partners” at DHS enforcement. Their only meaningful function is to railroad as many migrants as possible out of the country without regard to Due Process or legal rights.
Indeed, both Barr and Sessions have simply rewritten the law, through bogus “precedent decisions” that plainly violate the basic rules of judicial ethics requiring impartiality and forbidding prejudgment of cases, as will as requiring that litigants and their attorneys be treated with basic respect and civility. All of these “bogus precedents” favor DHS Enforcement; none favor the individuals trying to save their lives and vindicate their legal rights. A number reverse well-established rules insuring fair adjudication, particularly for asylum seekers, while others deprive “their judges” of even minimal power to manage their dockets in a rational manner.
Additionally, Sessions and Barr have proved to be historically incompetent managers. While doubling the number of Immigration Judges, by hiring almost exclusively from the ranks of government prosecutors, they have more than doubled the court backlog, now approximately 1.1 million “active” cases with another 300,000 “waiting in the wings” as a result of a mindless and unethical precedent decision by Sessions reversing years of slow but incremental progress on docket management.
They have also created this dysfunctional mess through a process of eliminating the reasonable and sensible use of priorities and “prosecutorial discretion” by DHS in the Immigration Courts as well as by using a process known as “Aimless Docket Reshuffling” or “ADR.” Under ADR, judges and cases are shuffled around the country and the dockets are rearranged to respond to the “emergency of the day” while “ready for trial” cases, some of which have been pending for many years, are arbitrarily “orbited” to the end of dockets, some of which stretch out beyond 2024.
The judges and Board Members work for Billy Barr, who can fire them, reassign them, send them off to the FOIA unit, or turn them into “hall walkers.” (All of which actually happened during the reign of John Ashcroft, where a group of us were “punished” for exerting our authority as independent quasi-judicial officials and the BIA was absurdly cut from 23 Members to 12, under an astoundingly disingenuous claim of “efficiency.”By comparison, Barr recently announced an equally ill-conceived and unjustified plan to expand the BIA to over 50 Members stationed throughout the country).
Under these conditions, it is hardly surprising that Board Members feel themselves compelled and justified in ignoring your court orders in favor of a footnote in letter from the Attorney General, “the boss.” It’s completely consistent with the theory of the all-powerful “Unitary Executive” and the actuality that Board Members and Immigration Judges are constantly told that there are “mere employees” of the Attorney General required to carry out his “policies” under the threat of job loss.
The good news is that you folks aren’t as powerless as you seem to think yourselves to be. You don’t actually need a “motion” from private counsel to:
Hold this systemic clown show purporting to be a “court” system unconstitutional, as it most surely is, and shut it down pending legislative reform;
Throw Billy Barr in jail for his contemptuous behavior in allowing the BIA to violate your valid orders and then compounding it by neither confessing error nor apologizing, but rather sending his DOJ attorneys in to waste your valuable time and insult your intelligence;
Schedule some contempt hearings for non-compliant EOIR officials and explain to them that the “Unitary Executive” is nothing more than a figment of Billy’s warped imagination and that, no matter who signs their paychecks, they are obliged to follow the laws, obey your orders, provide Constitutional Due Process of law to individuals coming before them, exercise independent judgment based on the law and facts in the record, and ignore any nonsense stemming from Billy & company that flies in the face of any of the foregoing.
Then and only then, by standing up for the rights of the most vulnerable among us and your constitutional prerogatives, will you become part of the solution instead of “just another snappy quote line in one of my Courtside headlines.”
If you don’t act now, this dysfunctional mess of an out of control, illegal, and grotesquely mismanaged system will eventually fall into your collective judicial laps, no matter how much you would like to shun it. For example, Billy is encouraging, basically demanding, that the BIA make more use of largely judicially discredited. “summary affirmances” and often arbitrary, capricious, and sloppily reasoned, “single member opinions,” both entered without meaningful deliberation or discussion, to “rubber stamp” more removal orders. Indeed, one of your retired colleagues, Judge Richard Posner, was an outspoken critic of the shockingly unprofessional and frequently incorrect results produced by the earlier “weaponization” of “assembly line justice,” featuring “summary affirmances” and “single member decisions” resulting from the “Ashcroft debacle.”
Billy and his EOIR bureaucratic toadies fully intend to further reduce the already questionable quality of the “legal product” that the BIA sends your way. They are counting on you folks to either 1) look the way and join the”rubber stamp brigade,” or 2) do their dirty work for them. At that point, you will not be able to avoid the “judgment of history” regarding your own complicity and fecklessness in the face of lawless tyranny that is destroying our precious democratic institutions and even more precious human lives every day. Wake up and act, before it’s too late, for you and for our nation!
Due Process Forever!
With my very best wishes,
PWS
01-25-19
FOOTNOTE:
For those interested, Judge Easterbrook was appointed by President Reagan; Judge Bauer by President Ford; and Judge Hamilton by President Obama.
If nothing else, Billy and EOIR are uniting judges across the political spectrum in their disgust and outrage.
I am excited to announce two recent Immigration Clinic wins!
1) On December 4th, Judge Deepali Nadkarni of the Arlington Immigration Court granted administrative closure in an Immigration Clinic case. The client, A-M-, and his wife, P-M-, are both represented by the Clinic in their respective cases. P-M- has pending U and T visa applications before USCIS, which are for victims of crimes and trafficking victims, respectively. P-M-‘s applications are based on horrific childhood sexual abuse she suffered at the hands of her stepfather. A-M- is a derivative on P-M-‘s application; however, A-M- is in removal proceedings and Immigration Judges do not have jurisdiction over these types of applications.
Judge Nadkarni commented on student attorney, Samuel Thomas, JD ’20, “very large” filing and issued a written decision a few weeks after a brief hearing. A-M- will now be able to stay in the U.S. with P-M- and their three small U.S. citizen children while they wait for a decision on the U and/or T visas.
Please join me in congratulating student-attorneys Samuel Thomas, who filed the motion for admin closure, and Madeleine Delurey, JD ’20, who filed the U and T visas for P-M-!
2) On December 23, 2019, I won a hearing for Cancellation of Removal for Certain Permanent Residents for our client, M-D-C-. M-D-C-, born in Chile, has been a permanent resident for over 29 years but was put into removal proceedings because of several criminal convictions in his record, the last of which took place 15 years ago. M-D-C- is currently on a heart transplant list and has very close relationships with his U.S. citizen wife and daughter. In fact, his daughter, C-D-C-, stated in her affidavit, “I owe a lot of the woman I have become and am to [my dad] and I love him with my whole heart.” Immigration Judge Wynne P. Kelly called the case “close” and said that he was “granting by a hair” after a three-hour hearing where both wife and daughter testified.
Please join me in congratulating Clinic alum, Chris Carr, JD ’17, and student-attorney, Amy Lattari, JD ’20, who both worked on the case with me. A special shout-out goes to Clinic alumna, Anam Rahman, JD ’12, who assisted in mooting M-D-C- and family.
Best,
—
Paulina Vera, Esq.
Professorial Lecturer in Law
Acting Director, Immigration Clinic (Academic Year 2019-2020)
Legal Associate, Immigration Clinic
The George Washington University Law School
2000 G St, NW
Washington, DC 20052
********************************************
Many congrats Paulina, Samuel, Madeline, Chris, Amy, and Anam! Due Process is indeed a team effort!
As a number of us in the Round Table of Former Immigration Judges have observed, even under today‘s intentionally adverse conditions, justice is still achievable with 1) access to well-qualified counsel, and 2) fair, impartial, and scholarly Immigration Judges with the necessary legal expertise.
Unfortunately, the Trump Regime, in its never-ending “War on Due Process,” has worked tirelessly to make the foregoing conditions the exception rather than the rule.
Hats off once again to Judge Deepali Nadkarni who resigned her Assistant Chief Judge position to go “down in the trenches” of Arlington and bring some much-needed fairness, impartiality, scholarship, independence, and courage to a system badly in need of all of those qualities!
This also shows what a difference a courageous Circuit Court decision standing up against the scofflaw nonsense of Jeff Sessions and Billy Barr, rather than “going along to get along,” can make. One factor greatly and unnecessarily aggravating the 1.3 million + Immigration Court backlog is the regime’s mindlessly filling the docket with re-calendared and other “low priority/high equity” cases that should be closed and remain closed as a proper exercise of prosecutorial discretion. Sessions’s Castro-Tum decision, soundly rejected by the 4th Circuit inZuniga Romero v. Barr, is one a number unconscionable and unethical abuses of authority by Attorney Generals Sessions and Barr.
ICIJ: ICE’s own directives say that isolating detainees — who under federal law aren’t considered prisoners and aren’t held for punitive reasons — is “a serious step that requires careful consideration of alternatives.” An investigation by The Intercept and the International Consortium of Investigative Journalists has found that ICE uses isolation as a go-to tool, rather than a last resort, to manage and punish even the most vulnerable detainees for weeks and months at a time.
AILA: The White House issued a memo directing relevant agencies to update/issue procedures, guidance, and regulations, as needed, to strictly enforce existing income-deeming and reimbursement laws when sponsored immigrants seek certain means-tested public benefits, such as SNAP, Medicaid, and TANF. See also One in Seven Adults in Immigrant Families Reported Avoiding Public Benefit Programs in 2018.
TRAC: The hiring pace for new judges continues to be insufficient to keep up with the Immigration Court’s workload. As a result, the court’s backlog continues to climb. While 47 new judges were hired during the first six months of FY 2019, others retired or left the bench. Thus, hiring resulted in a net gain of only 29 additional judges. As of the end of March, EOIR reports judge ranks had only climbed to a total of 424. And this total includes an unspecified number serving in administrative roles. See also Presiding Under Pressure and Judge Denise Slavin on the Immigration Courts, the National Association of Immigration Judges, Article I, and the Leadership at EOIR.
WaPo: President Trump plans to install Ken Cuccinelli II as the new director of U.S. Citizenship and Immigration Services, placing the conservative activist and former Virginia attorney general at the head of the agency that runs the country’s legal immigration system, administration officials said Friday. L. Francis Cissna, the agency’s current director, has told his staff that he will leave his post June 1. The move extends the purge of senior leadership at the Department of Homeland Security, replacing Cissna, a Senate-confirmed agency head with deep expertise on immigration law, with Cuccinelli, a conservative firebrand disliked by senior GOP figures, including Senate Majority Leader Mitch McConnell (R-Ky.).
WNYC: An undocumented immigrant from Brooklyn was deported to his home country in the Caribbean on Wednesday without advance notice, despite serious cardiovascular issues that led him to fall ill on the flight and could soon lead to death without adequate care, according to his attorneys and a cardiologist who reviewed his case.
AP: A 16-year-old Guatemala migrant who died Monday in U.S. custody had been held by immigration authorities for six days — twice as long as federal law generally permits — then transferred him to another holding facility even after he was diagnosed with the flu.
Buzzfeed: “I don’t know how we’re going to be able to afford to stay in Juárez for that long,” a father of three said. “It’s dangerous here for migrants.”
AP: President Andrés Manuel López Obrador has insisted that his main strategy to deal with migration is to improve conditions in migrants’ countries of origin so they don’t feel compelled to leave. However, detentions and deportations in Mexico are up 150% so far this year. Mexico’s efforts did not appear to immediately appease President Donald Trump, who unleashed a broadside on Twitter on Tuesday. Trump wrote that he was “very disappointed that Mexico is doing virtually nothing to stop illegal immigrants from coming to our Southern Border” and added that “Mexico is wrong and I will soon be giving a response!”
Buzzfeed: As of Monday, ICE was holding 52,398 migrants, of which 998 are family units, an agency official told BuzzFeed News. The number represents a significant population spike from just two weeks ago when ICE was holding more than 49,000 migrants.
CNN: Allen and McPherson say they documented their concerns numerous times in reports filed with the Department of Homeland Security during the Obama administration, and felt like the people in power were listening. But they say two things prompted them to speak more publicly about the matter after Trump took office: the spike in family separations at the border and moves to increase family detention rather than scale it back.
Econ Times: The Trump administration has begun the process to ban work permits for spouses of H-1B visa holders, a move that would affect the families of thousands of Indian hi-tech workers in the US.
NorthJersey: New rules will require that court personnel ask federal immigration agents to present a warrant before they arrest anyone in courthouses on civil immigration offenses.
NYT: James Derek Mize, left, and his husband, Jonathan Gregg, are both American citizens. Under a State Department policy, their daughter, who was born abroad, did not qualify for citizenship.
Buzzfeed: The claim, which is typically a precursor to a lawsuit, is for personal injury and wrongful death and accuses the federal government of battery, negligence, and reckless conduct in the Border Patrol shooting of Claudia Patricia Gómez González, an indigenous Mayan woman.
AIC: The deaths show that before giving huge new sums to increase detention capability, the agency must face significant oversight and accountability towards the deplorable conditions it holds migrants in.
Pursuant to section 240(b)(5)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(b)(5)(B) (2012), neither rescission of an in absentia order of removal nor termination of the proceedings is required where an alien who was served with a notice to appear that did not specify the time and place of the initial removal hearing failed to provide an address where a notice of hearing could be sent. Pereira v. Sessions, 138 S. Ct. 2105 (2018), distinguished.
Neither rescission of an in absentia order of removal nor termination of the proceedings is required where an alien did not appear at a scheduled hearing after being served with a notice to appear that did not specify the time and place of the initial removal hearing, so long as a subsequent notice of hearing specifying that information was properly sent to the alien. Pereira v. Sessions, 138 S. Ct. 2105 (2018), distinguished.
USCIS announced that individuals can file certain Form I-539, Application to Extend/Change Nonimmigrant Status, online in certain circumstances. AILA Doc. No. 19052241
DHS final rule adjusting fees for the Student and Exchange Visitor Program (SEVP). The rule is effective 6/24/19. (84 FR 23930, 5/23/19) AILA Doc. No. 19052300
USCIS correction to the notice published at 84 FR 20647 on 5/10/19 on continuation of documentation for beneficiaries of Temporary Protected Status from Nepal and Honduras. The notice corrects the CIS Number, the DHS Docket Number, and the RIN. (84 FR 23578, 5/22/19) AILA Doc. No. 19052231
USCIS: As a first step, certain visitors for business, visitors for pleasure, and vocational students can now apply online to extend their stay in the United States. Additional classifications are coming soon.
From the great folks over at AYUDA (pictured above):
New Trump Policy Puts Victims of Abuse at Risk
The Trump administration is again, putting families—especially women and children—in harm’s way as he continues his unrelenting assault on immigrant families.
We all saw the photos and heard the cries of children in cages at the border. But you probably haven’t heard about how the administration is making victims of human trafficking, domestic violence, sexual assault and other crimes even more vulnerable. Due to a new Trump administration policy, many more abused immigrants will likely face deportation and thousands more will be encouraged to stay in the shadows and remain with their abusers.
President Trump is turning an agency tasked with granting visas, work authorization, and other permits to immigrants into another cog in the deportation machine. On July 5th, the US Citizenship and Immigration Services (USCIS) released a memothat dramatically broadens when the agency may issue a Notice To Appear (NTA), the document that begins an immigrant’s journey towards deportation. In the past, USCIS could issue NTAs but it typically did so only in limited cases. The new agency guidance dramatically expands USCIS’s immigration enforcement function and allows USCIS to issue NTAs for any case it denies when the applicant is found to be unlawfully present.
For our country’s most vulnerable immigrants, the impact of this memo is dramatic. Currently, a capped number of immigrants may apply for visas as victims of domestic violence, sexual assault, human trafficking and other serious crimes. Congress created these visas to help law enforcement identify and prosecute perpetrators of abuse. To access these limited visas, immigrant victims must help law enforcement authorities in the investigation or prosecution of criminal activities. Victims’ engagement with law enforcement makes it more likely that police and prosecutors can bring successful cases against offenders, enabling them to reduce crime in our communities. For domestic violence victims, these visas serve an additional purpose. If you are undocumented and your abusive spouse has legal status, your dependency and vulnerability is compounded. Giving the abused spouse legal status is critical to help break down a power imbalance in these relationships.
The July 5th guidance threatens victims’ ability to safely apply for immigration relief. When immigrant victims consider seeking legal immigration status, they will question: is it worth possibly being deported? In some cities, already we know that fewer immigrants are reporting their experiences of domestic violence because of fear of deportation. Here in the DC metro area and across the nation, we will likely to see a drop in the number of abused immigrants seeking legal status.
At Ayuda, we are on the frontlines of serving some of the most vulnerable immigrants living in our community. Our organization provides immigration and family law representation, social services, and language access support for low-income immigrants who choose to make the Washington area home. Take for example Maria*, a typical Ayuda client whose strength and resilience are anything but typical. Maria was living with the father of her two children in the United States. He drank heavily and was emotionally and physically abusive towards her. He would regularly force her to have sex with him and beat her when she would not comply. He punched her, pushed her to the ground and pulled her hair. He would even beat and berate her when the children were present. Maria finally decided that she could not raise her children witnessing constant abuse by their father and she fled to a friend’s home who brought her to Ayuda. Ayuda attorneys and social services staff were there to support Maria and help make plans to ensure her safety, show her a pathway to achieving her independence from her abuser through filing a U visa (for victims of crimes) and help her start a new road on her way to a new American dream.
Now, immigrants like Maria will face even more impossible choices. If they want to help police and seek legal status, they will put themselves in the crosshairs of the deportation apparatus.
Even in this divided, hyper-partisan era, bipartisan public outcry resulted in a reversal of the inhumane family separation policy at the border. Prominent leaders in both parties who spoke out for families at the border must now raise their voices once again for vulnerable immigrant victims living here in our communities.
Just when you think that the Trump/Sessions White Nationalist regime might have hit rock bottom, they dig down even further. Joining and supporting great organizations like AYUDA, which protect the rights and futures of all Americans (regardless of status), is a terrific way to join the “New Due Process Army.”
FULL DISCLOSURE: I am a proud Member of AYUDA’s Advisory Council
The Trump administration has been trying to ramp up deportations of immigrants in the country illegally. But one thing has been standing in its way: Immigration judges often put these cases on hold.
Now Attorney General Jeff Sessions is considering overruling the judges.
One practice that is particularly infuriating to Sessions and other immigration hard-liners is called administrative closure. It allows judges to put deportation proceedings on hold indefinitely.
“Basically they have legalized the person who was coming to court, because they were illegally in the country,” Sessions said during a speech in December.
Sessions is using his authority over the immigration court system to review a number of judicial decisions. If he overturns those decisions, thousands of other cases could be affected. In this way, he is expected to end administrative closure, or scale it back.
The attorney general may also limit when judges can grant continuances and who qualifies for asylum in the United States.
This could reshape the nation’s immigration courts, which are overseen by the Justice Department, and make them move faster. Sessions says he is trying to clear a massive backlog of cases that is clogging the docket.
But critics say he is weighing changes that would threaten the due process rights of immigrants, and the integrity of immigration courts.
“What he wants is an immigration court system which is rapid, and leads to lots of deportations,” said Nancy Morawetz, who teaches the Immigrant Rights Clinic at New York University School of Law.
“It’s really just an unprecedented move by the attorney general to change the way the whole system works,” she said.
It’s rare for an attorney general to exercise this power, but Sessions has done it four times in the past three months.
Separately, for the first time, the Justice Department is setting quotas for immigration judges, pushing them to resolve cases quickly in order to meet performance standards.
It’s not just immigration lawyers who are worried about the effect of any changes. The union that represents immigration judges is concerned, too.
“A lot of what they are doing raises very serious concerns about the integrity of the system,” said Judge Ashley Tabaddor, president of the National Association of Immigration Judges, “judges are supposed to be free from these external pressures.”
The attorney general insists he’s trying to make sure that judges are deciding cases “fairly and efficiently.” And says he is trying to clear a backlog of nearly 700,000 cases.
That is in addition to the hundreds of thousands of cases in administrative closure. Nearly 200,000 immigration cases have been put on hold in this way in the past five years alone.
“Far and away, administrative closure was being abused,” said Cheryl David, a former immigration judge who is now a fellow at the Center for Immigration Studies, which advocates for lower levels of immigration.
He says many of those cases should have ended in deportation. “But rather than actually going through that process, the Obama administration simply administratively closed them. And took them off the docket to be forgotten,” he said.
Sessions has chosen to personally review the case of an undocumented immigrant named Reynaldo Castro-Tum who didn’t show up for his removal hearing. The judge wondered whether the man ever got the notice to appear in court and put his deportation proceedings on hold.
In a legal filing in January, Sessions asked whether judges have the authority to order administrative closure and under what circumstances.
Immigration lawyers and judges say there are legitimate reasons to administratively close a case. For instance, some immigrants are waiting for a final decision on visa or green card applications.
There is a backlog for those applications, too. They’re granted by U.S. Citizenship and Immigration Services, which is separate from immigration court. And that can take months, if not years.
Immigration lawyers and judges are worried that undocumented immigrants could be deported in the meantime.
“You know this is not the private sector where you pay extra money and you can get it done in two days,” said Cheryl David, an immigration lawyer in New York.
David represents hundreds of undocumented immigrants who are facing deportation. She often asks judges to put the proceedings on hold.
“It gives our clients some wiggle room to try and move forward on applications,” she said. “These are human beings, they’re not files.”
Immigration lawyers say these changes could affect immigrants across the country.
Brenda DeLeon has applied for a special visa for crime victims who are undocumented. She says her boyfriend beat her up, and she went to the police.
She came to the U.S. illegally from El Salvador in 2015, fleeing gang violence, and settled in North Carolina.
“If I go back, then my life is in danger,” DeLeon said through a translator. “And not only mine, but my children’s lives too.”
For now, a judge has put DeLeon’s deportation case on hold while she waits for an answer on her visa application.
Get the full audio version from NPR at the above link.
Haste makes waste! Gimmicks to cut corners, deny due process, and cover up the Administration’s own incompetent and politically driven mal-administration of the Immigration Courts is likely to cause an adverse reaction by the “real courts” — the Article III Courts of Appeals — who ultimately have to “sign off” on the railroading of individuals back to potentially deadly situations.
I also have some comments on this article.
In Castro-Tum, on appeal the BIA panel corrected the Immigration Judge’s error in administratively closing the case. Consequently, there was no valid reason for the Attorney General’s “certification” and using the case for a wide ranging inquiry into administrative closing that was almost completely divorced from the facts of Castro-Tum.
I also question Judge Arthur’s unsupported assertion that “Far and away administrative closing was being abused.”
According to TRAC Immigration, administrative closing of cases as an exercise of “prosecutorial discretion” by the DHS Assistant Chief Counsel accounted for a mere 6.7% of total administrative closings during the four-year period ending in FY 2015.
In Arlington where I sat, administrative closing by the Assistant Chief Counsel was a very rigorous process that required the respondent to document good conduct, length of residence, family ties, employment, school records, payment of taxes, community involvement, and other equities and contributions to the U.S. With 10 to 11 million so-called “undocumented” individuals in the U.S., removing such individuals, who were actually contributing to their communities, would have been a complete waste of time and limited resources.
The largest number of administrative closings in Arlington probably resulted from individuals in Immigration Court who:
Had been granted DACA status by USCIS;
Had been granted TPS by USCIS;
Had approved “U” nonimmigrant visas as “victims of crime,” but were waiting for the allocation of a visa number by the USCIS;
Had visa petitions or other applications that could ultimately have qualified them for permanent legal immigration pending adjudication by the USCIS.
Contrary to Judge Arthur’s claim, the foregoing types of cases either had legitimate claims for relief that could only be granted by or with some action by the USCIS, or, as in the case of TPS and DACA, the individuals were not then removable. Administrative closing of such cases was not an “abuse,” but rather eminently reasonable.
Moreover, individuals whose applications or petitions ultimately were denied by the USCIS, or who violated the terms under which the case had been closed by failing to appear for a scheduled interview or being picked up for a criminal offense were restored to the Immigration Court’s “active docket” upon motion of the DHS.
There are almost 700,000 cases now on the Immigration Courts’ docket — representing many years of work even if there were no new filings and new judges were added. Moreover, the cases are continuing to be filed in a haphazard manner with neither judgement nor restraint by an irresponsible Administration which is allowing DHS Enforcement to “go Gonzo.” To this existing mess, Sessions and Arthur propose adding hundreds of thousands of previously administratively closed cases, most of which shouldn’t have been on the docket in the first place.
So, if they had their way, we’d be up over one million cases in Immigration Court without any transparent, rational plan for adjudicating them fairly and in conformity with due process at any time in the foreseeable future. Sure sounds like fraud, waste, and abuse of the system by Sessions and DHS to me. All the more reason why we need an independent Article I U.S. Immigration Court removed from the political shenanigans and enforcement bias of Sessions and his DOJ. We need this reform sooner, rather than later!
“Last year, a young mother who came to the U.S. illegally from Mexico as a child thought she’d essentially won her fight against deportation.
Twenty-four year old Jenny isn’t eligible for DACA, or Deferred Action for Childhood Arrivals. She was in the midst of immigration court proceedings when she told her attorney that she was a victim of domestic violence, which is why WNYC agreed not to use her real name.
In May, Jenny reported her boyfriend to police for allegedly beating and trying to choke her. That action suddenly changed the course of her immigration case.
Jenny was able to apply for what’s called a U visa that would allow her to stay in the U.S. It’s for immigrant victims of crime who cooperate with law enforecement.
The waiting list for a U visa is about three years. But because Jenny met the criteria, and got the Brooklyn District Attorney’s office to sign off on her documents, the immigration judge agreed to put her cause on hold. The legal term for this is administrative closure. The government would no longer seek to deport her while she waited for her special visa.
But a month later, Immigration and Customs Enforcement (ICE) asked the same judge to recalender Jenny’s case and put it back on the docket — meaning she’d have to fight against deportation all over again.
The reason? ICE wrote that Jenny’s U visa was “speculative” and “not available within a reasonable period of time.” The agency said three years was too long to wait — even though they’re controlled by another governmental agency, U.S. Citizenship and Immigration Services (both are within the Department of Homeland Security). ICE said she could wait for her U visa while in Mexico.
The agency also noted that Jenny had been convicted of petit larceny when she was 18. Though it’s not considered a crime that could lead to an immigrant’s removal, it brought her to ICE’s attention a few years ago, and her unlawful presence in the U.S. triggered the deportation proceedings.
For Jenny, the about face was extremely upsetting after suffering domestic abuse and moving into a women’s shelter. “I seek help and I’m still kind of being, you know, bullied,” she said.
Her attorney, Kendal Nystedt of the immigrant rights group Make the Road New York, said ICE seemed to mischaracterize immigration law and said its arguments “were also insulting given the humanity of my client.”
The judge apparently agreed. Late last year, in a one page memo, he denied the government’s request and let Jenny remain in the U.S. But data obtained by WNYC shows that Jenny wasn’t the only immigrant who thought they could stay, only to have the government give their case a second look.
In Fiscal Year 2017, ICE asked to recalendar almost 9400 cases that were administratively closed, or put on pause. That’s an increase of almost 74 percent from the year before President Trump took office. In response, it appears immigration judges may be applying more scrutiny to the government’s requests. They granted 85 percent of those motions to put the cases back on their dockets in 2017, compared to 96 percent in 2016.
When asked why the government is revisiting more cases, ICE spokewoman Jennifer Elzea said the agency generally reviews cases that were administratively closed “to see if the basis for prosecutorial discretion is still appropriate.”
But it’s clear this legal strategy also lets the Trump administration try to deport more immigrants. Former immigration judge Andrew Arthur said there’s a good reason. “Under the Obama Administration, administrative closure was treated as a form of amnesty,” he explained.
Arthur is a fellow with the Center for Immigration Studies, a think tank that supports more restrictive immigration policies. Without commenting on Jenny’s situation he said some cases that were administratively closed involved immigrants who may never qualify for whatever benefit they thought they were likely to receive. But he said the previous administration didn’t act because there were “not deemed a priority for removal.”
In other words, he Obama administration had made criminals the top priority for removal, letting too many others remain.
Retired immigration judge Paul Wickham Schmidt
Beth Fertig/WNYC
Another former immigration judge said that Obama era policy made sense, however. Paul Wickham Schmidt granted administrative closures when he worked in the Arlington, Virginia court.
“An example of a type of case that gets closed quite a bit are cases of individuals who have relatives petitioning for them. And there’s a big backlog of petitions,” Schmidt explained. “So rather than continuing the case time after time, sometimes for years, judges were saying ‘look I’m going to take this case off the docket.'”
He said this management strategy was necessary.The immigration courts have a backlog of 670,000 thousand pending cases. “You’re not even going to complete 670,000 cases probably within my lifetime. You’ve got to decide which cases really belong at the front of the line and which cases you’re not going to prioritize,” he said. “Wasting time in immigration court just doesn’t make sense.”
Despite concerns about further burdening an immigration court system that’s already bursting at the seems, Attorney General Jeff Sessions is considering a much more dramatic step than simply seeking to recalendar the 9400 cases that were reviewed last year. He’s looking into recalendaring all cases that were administratively closed – and there are estimates there could 350,000 of them.”
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Go to the link to hear the audio from WNYC!
Putting cases like “Jenny’s” back on the already overcrowded dockets is cruel, counterproductive, and wasteful of judicial time. She’s established the qualifications for a U visa, for Pete’s sake. There really isn’t any “uncertainty” — if she stays out of trouble with the law, she’ll get a U visa when her number comes up. No reason on earth for her to “occupy space” on the Immigration Court’s docket.
If she were unwise enough to get into legal trouble before then (seldom happens, in my experience), then that would be the time to 1) revoke her U visa approval, and 2) put her back on the docket. With dockets stretching out for years, why would an Immigration Judge do anything other than keep putting a case like Jenny’s at the end of the docket until her “U number” is reached?
Just because somebody is “removable” doesn’t mean that it makes any sense to put them on already overcrowded Immigration Court dockets. That’s particularly true of an individual who meets the requirements for a legal status (albeit one that because of the arcane structure of the Federal Regulations, an Immigration Judge can’t actually grant).
It’s analogous to the local prosecutor jamming a judge’s docket with jaywalking, littering, and unleashed dog cases so that there isn’t time to hear felony rape and robbery cases! No other law enforcement agency in America that I’m aware of operates without any real prosecution priorities the way Sessions and the DHS are trying to do in this Administration.
And, of course, one large class of “Administratively Closed” cases involves those who had their DACA applications approved by USCIS after Removal Proceedings had been initiated. What would be the point of putting such cases “back on the docket” if DACA were actually terminated?
Even the DHS claims that “Dreamer” cases would not be an “enforcement priority.” (Although, during the Trump Administration such claims by DHS have often proved to be “not credible.”) Therefore, it would literally be years before they could be heard. And many of them have strong cases for other forms of immigration relief such as Cancellation of Removal. I want to believe that the fate of the Dreamers will be resolved long before then.
“Please join me in congratulating Immigration Clinic client C-R, from Venezuela. His U nonimmigrant visa application, filed on April 30, 2014, was granted Wednesday. C-R will be eligible to adjust status to lawful permanent residence in three years. U nonimmigrant visas are available to aliens who within the USA have been victims of criminal activity, and who have been helpful to law enforcement in investigating and prosecuting that crime. C-R was a victim of domestic violence at the hands of his ex-wife. Reports are that there are at least 90,000 U visa applications pending at USCIS.
Jessica Leal, Jonathan Bialosky, Sarena Bhatia, Chen Liang, Mark Webb, and Paulina Vera have worked on this case.
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Alberto Manuel Benitez
Professor of Clinical Law
Director, Immigration Clinic
The George Washington University Law School
650 20th Street, NW
Washington, DC 20052
(202) 994-7463
(202) 994-4946 fax abenitez@law.gwu.edu
THE WORLD IS YOURS…”
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Congrats to all involved!
I’m proud to say that Paulina Vera and Jessica Leal are “distinguished alums” of the Arlington Immigration Court Internship Program as well as “charter members” of the New Due Process Army (“NDPA”)!
These guys keep proving my point: with time and access to good representation, probably the majority of those who flee from the so-called Northern Triangle are eligible for immigration relief of some type.
Consequently, a rational Attorney General, committed to Due Process, would work to insure that such individuals are released after initial screening and able to go to locations where pro bono counsel are readily available and where cases are scheduled in a manner that they can be completely prepared and presented efficiently. Individuals with counsel reliably appear in Immigration Court as scheduled. He would also encourage the issuance of more favorable precedents leading to more expedited grants of relief and facilitate Immigration Judges working with DHS to have cases taken off the Immigration Court docket and granted by DHS, either at the Asylum Office or elsewhere in USCIS on an expedited basis.
Instead, Sessions treats refugees and asylum seekers as if they were criminals and seeks to use the detention system to prevent individuals from obtaining counsel and achieving due process. His misuse of the Immigration Courts as part of a DHS enforcement regime to discourage individuals from asserting their statutory and Constitutional rights is nothing short of reprehensible!
“The United States is not alone in trying to help UACs.
For example, Mexico’s Southern Border Plan has produced a sharp increase in Mexico’s apprehension and deportation of migrants from Central America, which prevents many UACs from reaching the United States.
The Governments of Belize, Canada, Costa Rica, El Salvador, Guatemala, Honduras, Mexico, Panama, and the United States vowed to work together to strengthen protections for refugees fleeing Central America.
I suggested a way to use international cooperation before the CAM program was established, but it will not be possible until congress limits the TVPRA’s UAC mandates to trafficking victims.
Move UACs who reach America to temporary locations outside of the United States where they would be screened by UNHCR to determine which ones are eligible for refugee status. UNHCR would try to resettle the ones determined to be refugees in countries throughout the region and elsewhere, including the United States.
UNHCR has a 10-Point Plan of Action for refugee protection which includes help for aliens who cannot establish eligibility for refugee status, such as assistance in obtaining temporary migration options.
This approach would help more UACs than letting them apply for asylum in the United States under the current administration, and parents of UACs would stop sending them on the perilous journey to the United States if they knew they would just be returned to Central America to be screened by UNHCR.
Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years; he subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.”
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Go on over to The Hill to read Nolan’s complete article, with maps and stats, at the link!
While I don’t think Congress should limit TPRVA’s UAC provisions, I think that otherwise Nolan is on the right track here. Working with the UNHCR and other countries in the region, as well as the sending countries in the Northern Triangle, to solve the problems closer to the “point of origin” and to provide a number of realistic options for temporary refuge, shared among affected countries, seems more promising and practical than expecting the Trump Administration to provide any real form of protection in the US for most of these children.
