Category: Judge Keith Hunsucker

⚖️BIA BLOWS OFF SUPREMES, AGAIN! — This Time On “Crime Of Child Abuse” — Judge Aaron Petty With Rare Dissent — Matter of AGULAR-BARAJAS, 28 I&N Dec. 354 (BIA 2021)

 

https://www.justice.gov/eoir/page/file/1419101/download

Matter of Jose AGUILAR-BARAJAS, Respondent

Decided July 30, 2021

U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals

(1) The offense of aggravated statutory rape under section 39-13-506(c) of the Tennessee Code Annotated is categorically a “crime of child abuse” within the meaning of section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2018).

(2) The Supreme Court’s holding that a statutory rape offense does not qualify as “sexual abuse of a minor” based solely on the age of the participants, unless it involves a victim under 16, does not affect our definition of a “crime of child abuse” in Matter of Velazquez-Herrera, 24 I&N Dec. 503 (BIA 2008), nor does it control whether the respondent’s statutory rape offense falls within this definition. Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017), distinguished.

FOR RESPONDENT: Sean Lewis, Esquire, Nashville, Tennessee

FOR THE DEPARTMENT OF HOMELAND SECURITY: Peter Gannon, Associate Legal Advisor

BEFORE: Board Panel: HUNSUCKER, Appellate Immigration Judge; NOFERI, Temporary Appellate Immigration Judge. Concurring and Dissenting Opinion: PETTY, Appellate Immigration Judge.

HUNSUCKER, Appellate Immigration Judge [Majority Opinion]

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

Key Quote From Judge Petty’s Dissent:

The Supreme Court has held that the generic age of consent is 16. Esquivel-Quintana v. Sessions, 137 S. Ct. 1562, 1572 (2017). Accordingly, absent aggravating circumstances, consensual sexual activity between an adult and a minor over 16 is not categorically “abusive.” If a statutory rape statute sweeps more broadly than the generic definition (in other words, if it sets the age of consent above 16) it cannot form the predicate offense for removability under section 237(a)(2)(E)(i) of the Act for having been convicted of a crime of child abuse. There can be no categorical “child abuse” where the criminalized conduct is not categorically abusive. Here, the respondent was convicted of violating a statute that sets the age of consent at 18. Because the Supreme Court has left us no other option, I would dismiss the DHS’s appeal and terminate the respondent’s removal proceedings.

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

In the Pereira fiasco, the BIA’s unwillingness to follow the Supremes’ lead when it conflicted with their “mission” of helping out DHS enforcement (a stated objective of Jeff “Gonzo Apocalypto” Sessions) created big time practical problems that could and should have been avoided. 

🇺🇸Due Process Forever!

PWS

08-01-21

Related posts:

  1. ⚖️YET ANOTHER BIA PRECEDENT, MATTER OF SORAM, 25 I&N DEC. 378 (BIA 2010), BITES THE DUST IN 9TH CIR. — “We conclude that the text of 8 U.S.C. § 1227(a)(2)(E)(i) unambiguously forecloses the BIA’s interpretation of “a crime of child abuse, child neglect, or child abandonment” as encompassing negligent child endangerment offenses.” — Diaz-Rodriguez v. Garland (2-1)
  2. 🤯👎🏽MORE CIRCUIT REJECTS FOR GARLAND & PRELOGAR — 1st & 3rd Cirs “Just Say No” To DOJ’s Ill-Advised Positions On “Theft Offense” & Derivative Citizenship!  — It’s Part Of A Larger Leadership Failure @ Garland’s Broken DOJ!
  3. ⚖️🗽🧑🏽‍⚖️”MEDLEY OF INJUSTICE” — CIRCUITS CONTINUE TO LOWER HAMMER 🔨 ON BIA: Anti-Asylum Misogyny; Illegal & Incredibly Stupid “Policies;” “Perplexing” Lack Of Legal Knowledge Highlighted In Latest Batch Of Reversals! — “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.”
  4. 🤮👎🏽WASHPOST SLAMS BIDEN ADMINISTRATION FOR ABANDONING NEGOTIATIONS WITH FAMILIES WHO SUFFERED CHILD ABUSE BY SESSIONS & MILLER! — “Having condemned a policy that traumatized children and their parents, Mr. Biden now leads an administration fighting in court to deny recompense to those same families.”

👹AS CURTAIN FALLS ON KAKISTOCRACY, BIA CLOWN SHOW 🤡 ROLLS ON TOWARD OBLIVION! — Latest Travesty Ignores Clear Statutory Language, Elevates AAO Over Circuits, Shafts TPSers Who Qualify For Legal Permanent Immigration, Makes Hash Out Of Uniform Administration Of Laws!🏴‍☠️☠️🤮

EYORE
“Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
Kangaroos
All In A Day’s Work — BIA Members Unwind After Ignoring Statute, Dissing Three Circuits, Screwing TPS Holders, Beating Up Unrepresented Respondent, & Aiding Their “Partners” At ICE In Demeaning Justice
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Matter of PADILLA RODRIGUEZ, 28 I&N Dec. 164 (BIA 2020)

BIA HEADNOTE:

(1) Where the temporary protected status (“TPS”) of an alien who was previously present in the United States without being admitted or paroled is terminated, the alien remains inadmissible under section 212(a)(6)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(A)(i) (2018), and removal proceedings should not be terminated.

(2) An alien whose TPS continues to be valid is considered to be “admitted” for purposes of establishing eligibility for adjustment of status only within the jurisdictions of the United States Courts of Appeals for the Sixth, Eighth, and Ninth Circuits.

BIA PANEL: MALPHRUS, Deputy Chief Appellate Immigration Judge; HUNSUCKER, Appellate Immigration Judge; GEMOETS, Temporary Appellate Immigration Judge

OPINION BY: HUNSUCKER, Appellate Immigration Judge

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

For today’s BIA, it apparently doesn’t get any better than beating up on an unrepresented respondent who actually won before the Immigration Judge! Where was the “BIA Pro Bono Program” on this one?

It’s not rocket science: INA section 244(f)(4) says: “for purposes of adjustment of status under section 245 and change of status under section 248, the alien shall be considered as being in, and maintaining, lawful status as a nonimmigrant.”

So, clearly, an individual in TPS status who is eligible for permanent immigration can adjust statutus under INA section 245, right? Of course, unless you’re the BIA and stretching to find a way to deny. And, elevating the meanderings of the AAO over the considered opinions of three Circuit Courts of Appeals shows the level of intellectual honesty and scholarship on today’s BIA!

Now, lets look at the policy results produced by the BIA’s intentional misconstruction of the plain meaning of the statute.

First, it means that except in the 6th, 8th, and 9th Circuits, individuals in TPS status, basically long term residents who are going to be remaining, working, paying taxes, and raising families in the U.S., and who also are qualified to permanently immigrate (e.g., spouses of U.S. citizens) will be mindlessly barred from doing so.

But, wait, it gets even better! That’s only the case if they have the  misfortune to live in a Circuit other than the 6th, 8th, or 9th. Of course, if they are able, they could move to one of those circuits to adjust.

Make sense? Only if you’re part of the “Clown Show of Denial.” Then, you ignore the statute, diss the Circuit Courts, and go out of your way to promote a non-uniform interpretation of the law that will screw contributing members of our society residing here legally and arbitrarily block them from achieving the permanent status to which they are entitled.

Now you can see what a difference replacing the “Clown Show” with real judges from the NDPA could make — both for the human lives and futures at stake and for sane, lawful, and fiscally efficient administration of our immigration laws! 

REPEAT AFTER ME: Hey Hey, Ho Ho, Tell The Biden Team That The EOIR Clown 🤡 Show Has Got To Go!

EOIR clown Show Must Go T-Shirt
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept

Due Process Forever! Clownocracy, never!

PWS

11-24-20

Related posts:

  1. WHY EOIR 🤡 MUST GO ** CH. CI — Latest CLINIC Court Victory Over Regime Exposes Unholy (Not To Mention Unconstitutional & Unethical) Alliance Between EOIR & ICE Enforcement To Screw Kids! — The Bottom Is Unfathomably Deep @ The Deadly EOIR Clown Show🤡! —  “ICE is barred (both at the IJ and BIA levels) from seeking denials of continuances or other postponements to await adjudication of the I-589 filed with USCIS, seeking EOIR exercise of jurisdiction over an asylum claim where USCIS has initial jurisdiction under the terms of the 2013 Kim Memo, or otherwise taking the position that USCIS lacks initial jurisdiction over the class member’s asylum application.”
  2. ⚖️🗽🧑🏽‍⚖️COURTS OF APPEALS CONTINUE TO THROW ROTTEN TOMATOES 🍅 @ BIA’S ANTI-ASYLUM BIAS — Basic Analytical, Legal Errors Continue From Weaponized, Non-Expert “Star Chamber” ☠️ Posing As ”Tribunal!” — Judge Garland Must Fix This Inexcusable, Unnecessary, Systemic Failure Now! — Justice For Persons Of Color & Migrants Can’t “Wait For Godot!”
  3. 🇺🇸⚖️🗽HON. JEFFREY S. CHASE: UNETHICAL, 🏴‍☠️WHITE NATIONALIST,⚰️ MISOGYNIST 🤮“WAR CRIMINAL” ☠️JEFFREY ROSEN TAKES COWARDLY🐓 PARTING SHOT AT REFUGEE🦸🏻 WOMEN! — DOJ Clean-Out, 🧹🪠🧻Fumigation, & Restaffing With Ethical Attorneys Can’t Begin Soon Enough!
  4. ⚖️🗽🧑🏽‍⚖️”MEDLEY OF INJUSTICE” — CIRCUITS CONTINUE TO LOWER HAMMER 🔨 ON BIA: Anti-Asylum Misogyny; Illegal & Incredibly Stupid “Policies;” “Perplexing” Lack Of Legal Knowledge Highlighted In Latest Batch Of Reversals! — “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.”

🏴‍☠️DUE PROCESS FARCE CONTINUES AT BIA: “Good Enough For Government Work” Standard For Notice of Address Only Applies To DHS — Foreign Nationals Held To Strict Compliance — Matter of NIVELO CARDENAS, 28 I&N Dec. 68 (BIA 2020)

Matter of NIVELO CARDENAS, 28 I&N Dec. 68 (BIA 2020)

The Board of Immigration Appeals has issued a decision in the Matter of NIVELO CARDENAS, 28 I&N Dec. 68 (BIA 2020)

(1) Where an alien who has been personally served with a notice to appear advising him of the requirement to notify the Immigration Court of his correct address fails to do so and is ordered removed in absentia for failure to appear for the scheduled hearing, reopening of the proceedings to rescind his order of removal based on a lack of proper notice is not warranted under section 240(b)(5)(C)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(b)(5)(C)(ii) (2018).
(2) The respondent’s failure to update his address for over 18 years indicates a lack of due diligence and may properly be found to undermine the veracity of his claim that he has taken actions to maintain his rights in the underlying removal proceedings.

BIA PANEL: MALPHRUS and HUNSUCKER, Appellate Immigration Judges; GEMOETS, Temporary Appellate Immigration Judge.

OPINION BY: HUNSUCKER, Appellate Immigration Judge:

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

So, let’s get this a straight. The DHS has the burden of proof on notice and removability in an in absentia case. The BIA has previously said that writing some street in Tijuana, Mexico is a sufficient address for DHS to provide EOIR as part of the “Remain in Mexico” program. Matter of J.J. RODRIGUEZ, 27 I&N Dec. 762 (BIA 2020). https://immigrationcourtside.com/2020/01/31/bia-any-ol-notice-is-good-enough-for-endangered-asylum-seekers-orbited-to-mexico-beyond-matter-of-j-j-rodriguez-how-judges-at-all-levels-are-abandoning-the-rule-of-law-enab/

I call this the “good enough for Government work” approach. So, if the Government is basically allowed to get away with minimal compliance with address notice, one would expect an equally lenient approach for foreign nationals, who, after all, have far less control over the system and far fewer resources than the Government. No way!

When an individual apparently writes a “b” instead of an “h” (notice any similarity?) in a U.S. Street address, it’s “tough noogies.” That’s even where there is some evidence to suggest that the DHS actually had the correct address somewhere in their files. Normally, it would be standard practice for an Immigration Judge to check the address with DHS before entering an in abstentia order. Additionally, the BIA surmised that the some unknown individual at the incorrect address must have received and rejected the letter.

That’s not to mention the practical reality that even if the respondent had corrected his address using the proper form, there is little chance of it actually getting in the Court’s file in a timely manner. I used to marvel at the piles of unfiled address change forms I witnessed at various times during my EOIR career.

I’d also bet that it would have taken less time and effort to reopen this case and give this respondent a merits hearing than it took to deny the MTR, have it appealed to the BIA, and make it a precedent. There was a time when EOIR actually viewed its function as providing due process hearings. Now, the idea is to use as many gimmicks as possible to avoid fear hearings and produce numbers.

In other words, Billy the Bigot’s BIA will do whatever is necessary to assist their “partners” (actually “superiors”) at DHS to rack up removal orders. Because, foreign nationals are “numbers” and “stats,” not humans. And if you can do it “in absentia” — that is without any real hearing at all — so much the better.

PWS

08-05-20

Related posts:

  1. THE TRUTH IS OUT, THANKS TO MICHELLE MENDEZ @ CLINIC: Practice Pointers on Matter of Castillo-Perez & “Takeaways” From FOIA Trove On In Absentias!
  2. PURE BS 💩 — TRUMP’S “BIG LIE” ABOUT MIGRANT APPEARANCES FOR HEARINGS BOGUS AS $3 BILL 🤮👎🏻— Replacing DHS/EOIR With Rational, Qualified, Fact-Based Governance & Real Judiciary Could Bring Appearance Rate Close To 100%!  — Two Items From ImmigrationProf Blog!
  3. “GOOD ENOUGH FOR GOVERNMENT WORK?” — Any Ol’ Notice Will Do! — BIA Continues To “Fill In The Blanks” In Aid Of “Partners” @ DHS Enforcement — MATTER OF HERRERA-VASQUEZ, 27 I&N DEC. 825 (BIA 2020)
  4. REGIME’S NEWEST SCHEME TO SCREW ASYLUM SEEKERS: BOGUS REGS THAT WOULD ILLEGALLY & UNNECESSARILY EXTEND THE GROUNDS OF “MANDATORY DENIAL,” DECREASE ADJUDICATOR DISCRETION, & SHAFT REFUGEE FAMILIES — Regime’s Outlandish “Efficiency Rationale” Fails to Mask Their Cruelty, Racism, Fraud, Waste, & Abuse – Julia Edwards Ainsley (NBC News) & Dean Kevin R. Johnson (ImmigrationProf Blog) Report

REWRITING HISTORY: BIA DISEMBOWELS ACOSTA, READS SEMINAL “PARTICULAR SOCIAL GROUP” — “LANDOWNERS” — OUT OF REFUGEE PROTECTION — Matter of E-R-A-L- — What Would Millions of Kulaks Exterminated By Stalin Think Of The “Towered Ones” Tone Deaf, Ahistorical Approach To Human Lives?

https://www.justice.gov/eoir/page/file/1247176/download

Matter of E-R-A-L-, 27 I&N Dec. 767 (BIA 2020)

BIA HEADNOTE:

(1) An alien’s status as a landowner does not automatically render that alien a member of a particular social group for purposes of asylum and withholding of removal.

(2) To establish a particular social group based on landownership, an alien must demonstrate by evidence in the record that members of the proposed group share an immutable characteristic and that the group is defined with particularity and is perceived to be socially distinct in the society in question.

(3) The respondent’s proposed particular social groups—comprised of landowners and landowners who resist drug cartels in Guatemala—are not valid based on the evidence In the record.

PANEL:  MALPHRUS, Acting Chairman; CREPPY and HUNSUCKER, Appellate Immigration Judges

OPINION BY: Acting Chairman Judge Garry D. Malphrus

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

I’ll leave a full analysis of this anti-asylum monstrosity to others more scholarly and patient. Here are a few “off the cuff” observations:

  • The BIA basically “blows off” contrary Circuit Court precedents. See, e.g., Córdoba v. Holder, 476 F. 3d 1106 (9th Cir. 2013) (wealthy educated landowners and businesspeople); N.L.A. v. Holder, 743 F.3d 425 (7th Cir. 2014) (landowners in. Colombia);
  • The BIA’s assertion that “landowners” must have “similar circumstances” conflates the requirements of a “particular social group” with “nexus.” Obviously, in some circumstances it won’t make any difference whether one is a big or small landowner, urban or rural. In other situations it might. If only certain landowners are persecuted, that is an issue of causation or “nexus,” not an element of the particular social group;
  • While “landownership” might not be “immutable,” it certainly is “fundamental to identity” in most situations. The BIA’s assertion to the contrary is absurd. Indeed, “landownership” was one of the keys to suffrage when our country was founded and has been one of the most clearly recognized and dearly held distinctions in human history. Even today, most individuals in the world who are fortunate enough to own land identify with it and are not likely to surrender it lightly;
  • The idea that a landowner should reasonably be expected to surrender his or her land is equally absurd, particularly in the context of surrendering it to drug cartels for their use. What truly perverted policy extremes the BIA engages in to avoid their responsibility to grant life-saving legal protection to the persecuted;
  • As pointed out in my “screaming headline,” throughout history, only religion or ethnicity might equal landownership as a basis for class identification, political standing, and persecution. The BIA’s obviously result-oriented decision in this case is both inane and ahistorical;
  • Don’t kid yourself! Notwithstanding some disingenuous suggestions to the contrary, no landowner will ever be recognized as within a “particular social group” and granted asylum under this decision. The BIA is encouraging Immigration Judges to “find any reason to deny” all such cases. And if the judge doesn’t deny it, the BIA will.  
  • Will the Article IIIs continue to allow and facilitate these life-threatening perversions of the law, logic, facts, and history by the BIA and the Trump regime? Maybe. Maybe not. Only time will tell. But, history will record and “out” the twisted logic and intellectual dishonesty employed by the regime and the BIA to unlawfully deny protection to those in need.

Due Process Forever; Ahistorical Nonsense Never!

PWS

02-12-20

Related posts:

  1. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  2. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”
  3. “IT’S 1939” & WHITE NATIONALIST AMERICA IS FAILING HUMANITY AGAIN: THE ST. LOUIS REPLAY: History Will Neither Forget Nor Forgive Us For Wrongfully Sending Refugees To Their Doom – Nor Will The Complicit Roles Of The Supremes & Other Life-Tenured Federal Judges Be Buried Beneath Their Cowardly Legal Gobbledygook! — “Extermination As Deterrence” Is Not “OK Policy!”
  4. COMPLICITY HAS COSTS:  Article III Judges’ Association Apparently Worries That Trump, Barr, GOP Toadies Starting To “Treat Them Like Immigration Judges” — Do They Fear Descent To Status Of Mere Refugees, Immigrants, “Dreamers,” Unaccompanied Children, Or Others Treated As “Less Than Persons” By Trump, 5th Cir., 11th Cir., 9th Cir., & The Supremes’ “J.R. Five?”