"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
An Immigration Judge has the authority to inquire into the bona fides of a marriage when considering an application for adjustment of status under section 245(a) of the Immigration and Nationality Act, 8 U.S.C. § 1255(a) (2018).
PANEL: MULLANE, COUCH, and OWEN, Appellate Immigration Judges
OPINION: Judge Hugh Mullane
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If IJs are going to go behind an approved I-130, why not just allow respondents to choose to file the I-130 and the I-1485, Application for Adjustment of Status, simultaneously in Immigration Court (like at USCIS) and have the IJ adjudicate the visa petition along with the application?
In this case, the IJ and ACC did offer the respondent a chance to apply for adjustment before USCIS. Perhaps, he should have taken it.
“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?
CANAL A MEDIA HOLDING, LLC v. USCIS, 11th Cir., 07-09-20, published
PANEL: MARTIN and NEWSOM, Circuit Judges, and WATKINS,* District Judge.
MARTIN, Circuit Judge:
Honorable W. Keith Watkins, United States District Judge for the Middle District of Alabama, sitting by designation.
OPINION BY: Judge Martin
CONCURRING OPINION: Judge Newsom
KEY QUOTE:
Plaintiffs Canal A Media Holding, LLC (“Canal A Media”) and Erick Archila appeal the District Court’s dismissal of their amended complaint for lack of subject-matter jurisdiction. They seek to challenge the decision by the United States Citizenship and Immigration Services (“USCIS”) to deny Canal A Media’s petition for a work visa for Mr. Archila. Having carefully reviewed this case, and with the benefit of oral argument, we have decided that the denial of Canal A Media’s visa petition was final agency action under the Administrative Procedure Act (“APA”). Also, we hold that 8 U.S.C. § 1252(b)(9) and (g) do not bar the Plaintiffs’ challenge to the visa petition denial. In keeping with these decisions, we reverse the District Court’s dismissal of the Plaintiffs’ claims.
JUDGE NEWSOM’S FULL CONCURRING OPINION:
I join the Court’s opinion in full. I write separately only to emphasize (what is to me, anyway) the obvious correctness of the Court’s holding that USCIS’s denial of Canal A Media’s Form I-129 visa petition constituted “final agency action” within the meaning of § 704 of the Administrative Procedure Act. See 5 U.S.C. § 704.
In determining whether agency action is “final” for APA purposes, the Supreme Court has emphasized, first and foremost, that “the action must mark the consummation of the agency’s decisionmaking process,” Bennett v. Spear, 520 U.S. 154, 177–78 (1997) (emphasis added) (quotation omitted), or, alternatively, that “the agency has completed its decisionmaking process,” Franklin v. Massachusetts, 505 U.S. 788, 797 (1992) (emphasis added). Those formulations tee up an important—and here, apparently dispositive—question: What is the relevant “agency”? It seems to me self-evident—and so far as I can tell, all agree—that the “agency” whose “decisionmaking process” we have to evaluate here is USCIS, the instrumentality of the federal government responsible for evaluating I-129 petitions. See 8 C.F.R. § 214.2(l).
The government contends here—and the district court held—that USCIS’s denial of Canal A Media’s I-129 petition didn’t constitute “final agency action” because Mr. Archila, on whose behalf Canal A Media sought the I-129, was still in
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Case: 19-11193 Date Filed: 07/08/2020 Page: 16 of 17
the middle of removal proceedings before an immigration judge. That is triply wrong—and, it seems to me, at the most basic level(s).
First, the government asks us to agency-jump. USCIS’s decisionmaking process hasn’t run its course, the government says, because an immigration judge is still working. But USCIS and the immigration court are altogether different “agenc[ies].” Cf. 5 U.S.C. § 701(b)(1) (defining “agency” to mean “each authority of the Government of the United States, whether or not it is within or subject to review by another agency”). More than that, they are housed in altogether different departments—USCIS exists within the Department of Homeland Security,1 whereas the immigration court operates under the auspices of the Department of Justice.2 The executive branch has an architecture—granted, not always perfectly elegant, but an architecture nonetheless—and the government’s position defies it.
Second, not only are the agencies themselves different, the participants in the proceedings before them are different. The only party properly before USCIS was Canal A Media, the visa petitioner; Mr. Archila, although the petition’s intended beneficiary, was not a party to the I-129 proceedings. See 8 C.F.R.
1 See Operational and Support Components, U.S. Dep’t of Homeland Sec., https://www.dhs.gov/operational-and-support-components (last visited July 7, 2020).
2 See Executive Office for Immigration Review, U.S. Dep’t of Justice, https://www.justice.gov/eoir (last visited July 7, 2020).
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Case: 19-11193 Date Filed: 07/08/2020 Page: 17 of 17
§ 103.2(a)(3). Conversely, in the ongoing removal proceedings before the IJ, Mr. Archila is the lone participant; Canal A Media has no right to appear.
Finally, not only are the agencies different, and the parties before them different, but their respective jurisdictions—for purposes of this case, anyway—are different, as well. While USCIS and immigration courts share jurisdiction over a limited range of issues—for instance, eligibility for Temporary Protected Status, see, e.g., Mejia Rodriguez v. U.S. Dep’t of Homeland Sec., 562 F.3d 1137, 1140 (11th Cir. 2009)—only USCIS has authority to decide Canal A Media’s I-129 visa petition, see 8 C.F.R. § 214.2(l)(1)(i); Matter of Aurelio, 19 I. & N. Dec. 458, 460 (BIA 1987). The IJ handling Mr. Archila’s removal proceedings has no jurisdiction to consider, grant, or deny Canal A Media’s petition, let alone to review USCIS’s denial.
At 30,000 feet, then, the government’s position just can’t be right. USCIS’s rejection of Canal A Media’s I-129 petition is not non-“final” simply because a different agency that is housed in a different executive-branch department and is vested with jurisdiction over different issues and is presiding over a different proceeding involving a different party hasn’t finished its different business.
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My take:
Congrats to Ira Kurzban one of the true giants of modern U.S. immigration law (and someonewith whom I did battle numerous times during my 12 years in the “Legacy INS” Office of General Counsel);
It’s hard to beat the Government on an immigration case in the normally pro-Government 11th Cir.;
The Government has consistently been losing APA cases under the Trump regime all the way up to the Supremes;
Is it really THAT hard to read the APA and comply?
Judge Newsom’s concurring opinion points out that the Government’s position in this case is misleading at best, dishonest at worst, and totally frivolous in any event.
So where are the sanctions, warnings, or rebukes of DOJ attorneys for frivolous litigation and/or lack of candor to tribunals, both of which are violations of basic ethical requirements?
Frivolous litigation has become a staple of the Trump Administration. It’s used for dilatory purposes and to wear down, discourage, and punish private parties.
What’s wrong with Federal Courts that allow this type of unprofessional and unethical conduct by DOJ litigators to continue unabated?
For the Federal Courts to treat this lawless and contemptuous gang of scofflaws and thugs known as the “Trump Administration” as “normal” when it is nothing of the sort is both a dis-service to the public and a threat to our nation’s continued existence!
Sen. Lindsey Graham (R-S.C.) said Monday that the order President Trump signed earlier in the day suspending,with some exceptions for health care and other “essential workers,” certain temporary work visas through the end of the year will have a “chilling effect” on the nation’s economic recovery amid the coronavirus pandemic.
“This decision, in my view, will have a chilling effect on our economic recovery at a time we should be doing all we can to restore the economy,” Graham said in a series of tweets.
. . . .
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Read Rebecca’s full article at the above link.
Of course, if Graham, Mitch, and their GOP buddies in the Senate and House really wanted to rein in Trump they could. Just get together with Nancy Pelosi and Chuck Schumer and pass by veto-proof margins legislation countermanding or amending Trump’s order.
But, that would require action, not just babbling.
In the meantime, Trump has succeeded in totally destroying the U.S. legal immigration and refugee system that has taken decades to build.And, the institutions that could and should have stopped him failed.
Federal immigration agency to furlough employees unless Congress provides funding
6:05 PM EDT May 26, 2020
US Citizenship and Immigration Services, the federal agency responsible for visa and asylum processing, is expected to furlough part of its workforce this summer if Congress doesn’t provide emergency funding to sustain operations during the coronavirus pandemic.
“Unfortunately, as of now, without congressional intervention, the agency will need to administratively furlough a portion of our employees on approximately July 20,” USCIS Deputy Director for Policy Joseph Edlow wrote in a letter sent to the workforce on Tuesday.
Earlier this month, the agency — which has 19,000 government employees and contractors working at more than 200 offices — requested $1.2 billion from Congress due to its budget shortfall.
Communications from the agency to Congress have grown more urgent as the threat of potential rolling furloughs could number in the thousands, according to one source familiar with the discussions.
The goal would be to attach the needed funds to the next coronavirus relief bill, which lawmakers plan to negotiate next. Still, with both parties far apart on any resolution, there is currently no clear pathway for lawmakers to fulfill the emergency request.
The immigration agency is primarily fee-funded and typically continues most operations during lapses in funding, such as last year’s government shutdown. However, during the pandemic the agency suspended its in-person services, including all interviews and naturalization ceremonies.
“Due to the COVID-19 pandemic, USCIS has seen a dramatic decrease in revenue and is seeking a one-time emergency request for funding to ensure we can carry out our mission of administering our nation’s lawful immigration system, safeguarding its integrity, and protecting the American people,” said a USCIS spokesperson.
The agency proposed a 10% surcharge on USCIS application fees to reimburse taxpayers at a later time. USCIS previously estimated that application and petition receipts will drop by approximately 61% through the end of fiscal year 2020, exhausting funding this summer, according to the agency.
Sarah Pierce, a policy analyst for the US Immigration Policy Program at the Migration Policy Institute, told CNN earlier this month that USCIS’ depleted funds are the “inevitable result” of the administration’s policies, which decreased the number of petitions — and thus fees — received by the agency.
“Between the end of fiscal years 2017 and 2019, USCIS received nearly 900,000 fewer petitions. This decrease was largely driven by the administration’s own decisions, such as ending Temporary Protected Status for nationals of several countries or drastically decreasing the number of refugees admitted to the United States,” she said.
. . . .
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Read the rest of the article at the link.
Sarah Pierce of MPI is totally right! This self-created “emergency” has to do mostly with the Trump regime’s ill-advised decision to turn what was supposed to be an agency providing impartial, expert, professional services to the public, and specifically the immigrant community, into a “junior branch of DHS enforcement.”
The need for a bailout or huge fee increases appears specious. How about giving USCIS the money that the regime illegally reprogrammed for Trump’s unneeded wall or the money used to maintain unfilled detention spaces and unneeded detention programs?
Right now, USCIS is engaged in improperly “slow walking” naturalization applications to prevent new citizens from being able to vote in the Fall 2020 elections. As a minimum requirement for further bailout, Congress should require that the “Naturalization Program” be removed from USCIS and returned to the supervision of the Article III Federal Courts.
I actually was once a “big fan” of “administrative naturalization,” believing that it could bedone most efficiently and with the best public service by adjudicators serving within the Examinations Branch of the “Legacy INS” which eventually “morphed” into USCIS. I supported the concept and helped lay the groundwork for it during my time at the “Legacy INS.”
The Trump kakistocrats have proved me wrong. The function is too important, too politicized, and too tied into the White Nationalist anti-immigrant agenda to remain within the Executive Branch. It also requires competent, professional, apolitical leadership which does not exist within today’s “DHS mass of disastrous politicized incompetence.”
“We hold that the BIA violated due process by relying on undisclosed evidence that Zerezghi and Meskel did not have an opportunity to rebut. In making its initial determination of marriage fraud, the BIA also violated due process by applying too low a standard of proof. On remand, it must establish marriage fraud by at least a preponderance of the evidence before it can deny any subsequent immigration petition based on such a finding.”
Robert Pauw Founding Partner Gibbs, Houston & Pauw Seattle, WA
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How totally perverse has the EOIR system become?
Well, the BIA’s sole function is to insure Due Process for individualsand to apply top-flight expertise and scholarship to keep the Immigration Courts, ICE, CBP, and USCIS in line and following the law and best practices.
Instead, the BIA has become a corner-cutting, sloppy, “rubber stamp” on DHS Enforcement and USCIS “enforcement wannabes.” Remember, early on, the Trump regime made it clear that service to the public, i.e., immigrants, their families, and their communities, was no longer “part of the mission” at USCIS. Instead, the mission is to help ICE & CBP institute politically-driven White Nationalist xenophobic enforcement initiatives.
USCIS was created as a separate agency under DHS specifically to allow service to the immigrant community to flourish without the subservience to law enforcement often present and institutionalized at the “Legacy INS.” However, this regime and its toadies in DHS “Management” have seen fit to recreate the very same conflicts of interest and enforcement dominance that USCIS was created to overcome. In most ways, things are far worse than they ever were at the “Legacy INS.” And, let’s remember that USCIS is funded largely by user fees collected from the public on the now largely fictional rationale that they are getting valuable and professionalized services. What a complete mess and abuse of public funding!
Moreover, given the BIA’s lousy performance, rather than assisting the Article III Courts, it now all too often falls to the Article IIIs to keep the BIA in line and do its job for it. But, given the wide disparity in interest levels, expertise, and integrity among the Article IIIs, the results have been spotty.
Some Article III Judges step up and do the job; others sweep the chronic problems under the table and look the other way as rights are trampled and service to the public mocked. And, no Article III to date has been courageous and scholarly enough to take on the real problem: the glaring unconstitutionality under the Due Process Clause of a so-called “court” controlled, staffed, and evaluated by a highly biased prosecutor empowered to reverse individual case outcomes that don’t match his political agenda!
A glimpse of future horrors to come: Emboldened by Article III complicity, and egged on by the White Nationalist nativists, EOIR now outrageously proposes to charge astronomically higher fees for its shabby, biased, and ever deteriorating “work product.” This is a transparent attempt to further restrict access to justice for the most vulnerable among us. Another clear denial of Due Process!
Yes, Congress is responsible. Yes, Congress is largely in failure. But, that doesn’t absolve the Article IIIs of their duty to the Constitution, the rule of law, and human decency. Will they finally wake up, act with some courage, and do their jobs? Or, will they engage in further “judicial task avoidance” until it’s too late for all of us?
