BARR CONTINUES RESTRICTIONIST ASSAULT ON IMMIGRATION COURTS: Intends To Reverse BIA Precedents Giving “Full Faith & Credit” To State Court Sentence Modifications — Another Disingenuous Request For “Amicus Briefing!”

Cite as 27 I&N Dec. 556 (A.G. 2019) Interim Decision #3954

Matter of Michael Vernon THOMAS, Respondent
Matter of Joseph Lloyd THOMPSON, Respondent
Decided by Attorney General May 28, 2019
U.S. Department of Justice
Office of the Attorney General
Pursuant to 8 C.F.R. § 1003.1(h)(1)(i), I direct the Board of Immigration
Appeals (“Board”) to refer these cases to me for review of its decisions. The
Board’s decisions in these matters are automatically stayed pending my
review. See Matter of Haddam, A.G. Order No. 2380-2001 (Jan. 19, 2001).
To assist me, I invite the parties to these proceedings and interested amici to
submit briefs that address whether, and under what circumstances, judicial
alteration of a criminal conviction or sentence—whether labeled “vacatur,”
“modification,” “clarification,” or some other term—should be taken into
consideration in determining the immigration consequences of the
The parties’ briefs shall not exceed 15,000 words and shall be filed on or
before June 28, 2019. Interested amici may submit briefs not exceeding
9,000 words on or before July 12, 2019. The parties may submit reply briefs
not exceeding 6,000 words on or before July 12, 2019. All filings shall be
accompanied by proof of service and shall be submitted electronically to, and in triplicate to:
United States Department of Justice
Office of the Attorney General, Room 5114
950 Pennsylvania Avenue, NW
Washington, DC 20530
All briefs must be both submitted electronically and postmarked on or
before the pertinent deadlines. Requests for extensions are disfavored.


Like Barr’s entire tenure and continued interference with Due Process and judicial independence in the Immigration Courts, it’s highly unethical.

Nobody outside the White Nationalist restrictionist enclave would have any interest in revisiting the BIA’s reasonable rulings, going back more than a decade and one-half, recognizing sentence modifications entered by judges in criminal cases, mostly in state courts. Matter of Song, 23 I&N Dec. 173 (BIA 2001) and Matter of Cota Vargas, 23 I&N Dec. 843 (BIA 2005).

Indeed, this action does not appear to have have been generated by any actual party participating in Immigration Court litigation or by any pending Circuit Court litigation. It has nothing to do with the current “border crisis” that has paralyzed this Administration’s immigration bureaucracy.

Rather, it appears to be part of a concerted politically-based attack on migrants and the independence of the Immigration Court system orchestrated by restrictionist groups outside of government who use unscrupulous and willing senior officials like Barr, and Sessions before him, as operatives.

After ignoring all of the compelling arguments favoring the current precedents, Barr will basically “adopt” or “adapt” Judge Roger Pauley’s dissenting opinion in Matter of Cota. The decision likely has already been drafted along the lines of the restrictionist groups’ agenda for stripping migrants of the few rights they still retain in what was already a bogus “court” system where the law had intentionally been skewed against them and in favor of DHS for political reasons.

The only question is whether the Article III Courts will continue to put up with Barr’s “charade of justice at Justice.” We’ll see. But, at some point, the damage to our system being inflicted by dishonest and unethical officials like Barr might become irreparable.



HON. JEFFREY S. CHASE: The History Of A Flawed Judiciary; The Intentional Tilting Of Asylum Law Against Asylum Seekers; The Farce Of Justice In The Immigration Courts; The Need For An Independent Article I Court!


The Immigration Court: Issues and Solutions

The following is the transcript of my lecture on March 28, 2019 at Cornell Law School as part of its Berger International Speaker Series titled The Immigration Courts: Issues and Solutions. Here is a link to the actual recording of the lecture. My heartfelt thanks to Prof. Stephen Yale-Loehr, Prof. Estelle McKee, and everyone at Cornell Law School for the honor of speaking, and for their warmth, intelligence, and dedication.

I’ve had a couple of occasions recently to consider the importance of faith in our judicial institutions.  I discussed the issue first in a blog post in which I commented on the Kavanaugh confirmation hearings, and then again in remarks relating to a play I was involved in in NYC based on an actual immigration court case, called The Courtroom.  Attorneys more commonly focus on faith in our courts on an individualized, case-by-case basis.  But in a democracy, a larger societal faith in our judicial institutions is paramount. And this may sound strange, but a large reason for this is that our courts will not always reach the right result.  But society will abide by judicial outcomes that they disagree with if they believe that the result was reached impartially by people who were genuinely trying to get it right. Abiding by judicial decisions is a key to democracy.  It is what prevents angry mobs from taking justice into their own hands. In the words of Balzac, “to distrust the judiciary marks the beginning of the end of society.”

If we accept this point of view, I believe that recent developments provide a cause for concern.  As Jeffrey Toobin recently wrote in The New Yorker, “these days the courts are nearly as tribal in their inclinations as the voters are,”  a point that the partisan nature of recent Supreme Court confirmation battles has underscored.

Our immigration courts are particularly prone to political manipulation because of their unique combination of structure, history, and function.  The present administration has made no secret of its disdain for judges’ ability to act as a check on its powers. But the combination of the fact that immigration judges are under the direct control of the Attorney General, and that their jurisdiction concerns a subject matter of particular importance to this administration has made this court especially ripe for interference.

A brief history of the immigration courts reveals it to be what my friend Prof. Deborah Anker at Harvard Law School calls a “bottom up” institution.  Immigration Judges originated as “special inquiry officers” within the old INS, where they held brief “hearings” under very non-courtlike conditions. In 1998, while I was an IJ, the court held a ceremony to commemorate the 25th anniversary of the immigration courts.  This was not the anniversary of its recognition as a court by Congress, which came much later, but rather, the anniversary of the agency beginning to refer to its personnel as judges.

The keynote speaker at the ceremony was William Fliegelman, who was the first person to hold the title of Chief Immigration Judge.  To the extent that his historical account was accurate, the immigration judge corps essentially invented itself, purchasing their own robes, designing the layout of their hearing rooms to better resemble courtrooms, and coordinating with INS district counsel to send its attorneys to each hearings to act as prosecutors.  Judge Fliegelman and then-INS District Counsel Vincent Schiano together created the Master Calendar hearing which is still used by the courts as its method of preliminary hearing. In other words, according to Judge Fliegelman’s account, the immigration judges presented themselves to the Washington bureaucrats as a fait accomplis, leaping fully formed much like Athena from Zeus’s head.

However, the judges still remained employees of the INS, the agency prosecuting the cases.  Most of the immigration judges were former INS trial attorneys. It was not uncommon for the judge and prosecutor to go out to lunch together, which didn’t exactly create the appearance of impartiality.  In 1983, the immigration judges, along with the Board of Immigration Appeals, were moved into an independent agency called the Executive Office for Immigration Review (“EOIR”). However, EOIR remained within the Department of Justice, as did the INS.  As both the INS commissioner and EOIR director reported to the same boss at Main Justice, and as INS was a much larger, more influential agency than EOIR, the former continued to be able to exert undue influence on the latter agency. That dynamic ended when the functions of the old INS were moved into the newly-created Department of Homeland Security in 2003.  Actually, EOIR was slated to move to DHS as well, but managed to finally achieve some space from ICE once again only through the IJ’s own lobbying efforts.

Although EOIR did begin sporadically appointing private attorneys to the bench in the 1980s, the number of more liberal private bar advocates appointed increased under the Clinton Administration in the mid-1990s, significantly changing the overall makeup of the immigration judge corps.  Many of those more liberal hires became retirement eligible under the present administration.

It wasn’t until 1996 that Congress finally recognized immigration judges by such title in statute.  As I was a new judge at the time, I can report that yet again, this development was accomplished by the immigration judges themselves, who chipped in to pay a lobbyist to bring about this change, with no assistance from EOIR management.

Soon thereafter, the immigration judge’s union began advocating for independent Article I status.  In the 1990s, then-Congressman Bill McCollum of Florida sponsored such a bill, which was opposed by EOIR management (out of its own self-interest), and which did not advance in Congress.  A very similar bill was drafted last year by New York Senator Kristin Gillibrand, which was never proposed to the Republican-controlled Congress.  A main difference between the 1990s proposal and present one is the climate in which they are made. While many of the arguments for Article I status involved hypothetical threats in the 1990s, over the past two years, many of the fears that gave rise to such proposal have become reality.

Some of the recent developments underscoring the urgency of the need for Article I courts include:

Politicized IJ hiring.  Following the more diverse corps of IJs hired under the Clinton Administration, a backlash occurred under the George W. Bush Administration.  A report following an investigation by the DOJ Inspector General’s Office detailed a policy of extending IJ offers only to those who had been found to meet the proper conservative, Republican profile.  For example, the report indicated that one candidate was found to have the proper conservative views on the “three Gs:” God, Guns, and Gays.

Although such practices came to an end in the latter part of the Bush Administration, in May of last year, a letter by 8 members of Congress. Prompted by whistleblowers within EOIR, requested the DOJ Inspector General to investigate new reports of a return of such politicized hiring under the present Administration.  At present, nearly all new IJ hires are former prosecutors or those who otherwise have been deemed to fit this administration’s ideological profile.

Completion quotas:  As of October 1, 2018, IJs are required to satisfy completion quotas set by EOIR management.  According to the President of the Immigration Judges’ Union, Hon. Ashley Tabaddor, no other class of judges are subject to similar quotas.  Judge Tabaddor has stated that IJs cease to be true judges under such system, as an adjudicator who must repeatedly choose between the requirements of due process and their own job security is one who lacks the independence required of judges.

Since October 1, judges are treated to a graphic on their computer screens each day which resembles the gauges on an airplane or sports car, with an animation of a needle which in seven different “gauges” will either be in the green, yellow, or red zone.  Not surprisingly, IJs find this demeaning.

Under the quotas, IJs are each required to complete 700 cases per year.  95 percent must be completed at their first scheduled individual hearing.  The judges may not have more than 15 percent of their decisions remanded or reversed by the BIA.

Judges have reported that when they find it necessary to continue a merits hearing, they soon receive a call from management requiring them to provide a detailed defense of their decision to continue the case.  In some courts, EOIR management has asked the court’s judicial law clerks to act as spies by listening to the recording of the continued hearing and reporting whether the in-court statements of the judge match the explanation the judge later provided to their supervisor for the continuance.  As a result, judges appointed by the Attorney General of the U.S. to hear life-and-death claims for asylum now feel the need to play-act on the record to avoid punishment from their superiors.

Another thing about quotas: right after they were announced, a reporter from NPR called me to ask what impact they were likely to have on judges.  In response, I suggested that we look at the most recent case completion figures on EOIR’s website.  I said we should first look at the court with the highest denial rate in the country, Atlanta. We divided the total number of case completions by the number of judges, and found that these judges averaged over 1,500 completions for the year, or more than double what was needed to meet the quota.  We then did the same for one of the more liberal courts in the country, the New York City court, and found that the judges there averaged just 566 completions a year, well under what would be needed to satisfy the quota. So just to be clear, the quotas are not designed to have a neutral impact; the administration hopes that forcing more completions will also result in more denials.

It should be noted that despite these quotas and numerous other efforts by the Trump Administration to supposedly increase the court’s productivity, the backlog has actually increased by 26% over the past two years.

Continued impact of the 2003 BIA purge:  In 2002, then Attorney General John Ashcroft expressed his dismay for some of the BIA’s more liberal decisions.  His response was to strip some of the BIA’s authority (in particular, taking away its de novo review authority over immigration judges’ findings of fact).  Ashcroft also announced that, in order to improve an overburdened BIA’s efficiency, he would reduce its size from 21 to 12 members. If you believe that the last part makes no sense, believe me, you are not alone.

One year later, Ashcroft followed through on his threat, removing every judge he deemed to be liberal from the BIA.  The Board, which had always been conservative leaning, subsequently took a much greater tilt to the right.  There was no correction under the Obama Administration, meaning that the BIA for the past 16 years and counting has been devoid of any liberal members.  It’s present chair, David Neal, is a Republican who served as a staff member to former U.S. Senator and Kansas Governor Sam Brownback.  The Board’s most prolific judge under the Trump Administration, Garry Malphrus, had been appointed to the bench after playing a role in the “Brooks Brothers riot,” in which Republican faithful hampered the recount of ballots in Florida following the 2000 presidential election.  Board Member Ed Grant was a Republican staff member to Rep. Lamar Smith, a Texas Republican with anti-immigrant views who previously chaired the House Immigration Subcommittee.

Of course, the result has been the issuance of more conservative precedent decisions which are binding on immigration judges.  And due to the common practice of Circuit Courts to accord deference to those decisions, under Chevron, Brand X, or Auer deference, humane interpretations of the immigration laws have become harder to come by.  Prior to 2002, the BIA commonly decided precedent decisions en banc, often providing a range of concurring and dissenting opinions, some of which were later adopted by the circuit courts on appeal.  But since that time, the Board only publishes three-member panel decisions as precedent, with a very small number of dissents.

A recent article in the Stanford Law Review by Prof. Jennifer Lee Koh provides an example of one of the effects of the Board’s more conservative makeup.  Being convicted of what is characterized as a “crime involving moral turpitude,” or CIMT, may render noncitizens removable from the U.S. and ineligible for immigration benefits or reliefs.  An attempt by the last Attorney General to serve under the Bush Administration, Michael Mukasey, to increase the BIA’s ability to find crimes to be CIMTs by creating his own alternative to the categorical and modified categorical approaches was vacated by his successor, Eric Holder (after having been rejected by 5 Circuit Courts of Appeal).  As several related Supreme Court decisions sealed the matter, the Board in 2016 was finally forced (at least on paper) to acknowledge the need to make CIMT determinations through a strict application of the categorical approach. However, as Prof. Koh demonstrates with examples from BIA precedent decisions, since 2016, the Board, while purporting to comply with the categorical approach, in fact has expanded through its precedent decisions the very meaning of what constitutes “moral turpitude,” enabling a greater number of offenses to be categorized as CIMTs.

Consistent with this approach was a training given by now-retired arch conservative Board member Roger Pauley at last summer’s IJ training conference.  From the conference materials obtained by a private attorney through a FOIA request, Pauley appears to have trained the judges not to apply the categorical approach as required by the Supreme Court when doing so won’t lead to a “sensible” result.  I believe the IJ corps would understand what this administration is likely to view as a “sensible” result. Remember that the IJs being trained cannot have more than 15 percent of their decisions remanded or reversed by the BIA under the agency’s completion quotas.  So even if an IJ realizes that they are bound by case law to apply the categorical approach, the same IJ also realizes that they ignore the BIA’s advice to the contrary at their own risk.

As to the law of asylum, not long after the purge of its liberal members, the BIA issued six precedent decisions between 2006 and 2014 making it more difficult to qualify for asylum based on membership in a particular social group.  The standard set out by the BIA in its 1985 decision Matter of Acosta – requiring the group to be defined by an “immutable characteristic” that its members either cannot change, or that is so fundamental to their identity that they should not be required to change it – had worked well for 21 years.  However, with no liberal push back, the more right-leaning Board members chose to add the additional requirements of particularity and social distinction to the PSG determination. The Board’s reliance on 2002 UNHCR Guidelines as justification for adding the latter requirement was most disingenuous, as the UNHCR employed the word “or” to allow those unable to otherwise satisfy the PSG requirements an alternative means of doing so, thus expanding those able to meet the definition.  But by changing the “or” to an “and,” the Board required applicants to establish both immutability and social distinction, thus narrowing the ranks of those able to qualify.

The changes had a dramatic impact on the large number of refugees escaping gang violence in Central America who generally relied on particular social group-based asylum claims.  Furthermore, while family has always been acknowledged as a particular social group, the BIA issued a decision in 2017 making it much more difficult to establish that the persecutor’s motive is on account of the victim’s family membership.   In that decision, the BIA offered the Bolshevik assassination of members of the family of Czar Nicholas II in Russia in 1918 as an example of what must be established to be granted asylum based on one’s family membership.   I have yet to find any lawyer who represents clients whose family presently enjoys a similar standing to the Romanov family in 1918 Russia. The ridiculously narrow interpretation was obviously designed to make it close to impossible for such claimants to qualify for relief.

The BIA also recently held that a Central American woman who was kidnaped by a guerrilla group and forced to cook and clean for them while in captivity had provided material support to a terrorist organization, thus barring her from a grant of asylum.  In reaching such holding, the Board determined that the victim should have reasonably known that the Salvadoran guerrilla group that kidnaped her was a terrorist organization in 1990, a time at which the U.S. government did not seem to yet hold such view.

Of course, IJs are bound by these decisions.  There have always been IJs who have forwarded new and sometimes creative legal theories which overcome these Board-imposed obstacles in order to grant relief.  But as stated previously, the quota guidelines will deter such creative decisionmaking by threatening the IJ’s job security. Judges should not have to fear repercussions for their good faith interpretations of the law.

Under prior administrations, ICE prosecutors have agreed in worthy cases to waive appeal when appropriate, and would even stipulate to grants of relief in worthy cases.  Also, under the previous administration, ICE would commonly agree to exercise its prosecutorial discretion to close non-priority cases. However, ICE attorneys at present are directed to oppose everything and agree to nothing.

Increased AG certifications:  In 2016, former Bush Attorney General Alberto Gonzales co-authored an article in the Iowa Law Review suggesting that instead of issuing a controversial executive order, the Obama Administration should have instead had the Attorney General issue precedent decisions in order to change the immigration laws.  A strange regulatory provision allows an Attorney General to direct the BIA to refer any decision for review. The AG can then simply rewrite any decision as he or she sees fit, creating precedent binding on the BIA, IJs, and DHS.

Clearly, the present administration is using Gonzales’s article as its playbook.  Apparently not satisfied with its power to appoint its own immigration judges, with packing the BIA with conservative former Republican Congressional staffers, and with its power to publish regulations interpreting the immigration laws to its own will and to issue policy directives binding on the judges, the Attorneys General serving the Trump Administration are also issuing precedent decisions through the process of self-certification at an alarming rate.  The decisions are different from those of other administrations, in that they are self-certified through procedural irregularity, are decided based on issues entirely different than those presented before the IJs and the BIA, and upend what had been settled issues of law that were not being questioned by either party to the action.

Former Attorney General Jeff Sessions used the certification process to make immigration judges less judge-like by stripping away necessary tools of docket management such as the right to administratively close proceedings, to terminate proceedings where appropriate, or to freely grant continuances in pending cases.  Sessions certified one case, Matter of E-F-H-L-, to himself four years after the BIA’s decision in the case, after it had been not only remanded back to the IJ, but had subsequently been administratively closed to allow the respondent to await the approval of an immigrant visa petition.  Sessions’s purpose in digging such an old case up was to vacate its holding guaranteeing asylum seekers a right to a full hearing on their application before an immigration judge. And his interest in doing so was to suggest to immigration judges that a way to increase their efficiency would be to summarily deny asylum claims without affording a hearing, which some judges have actually started to do.  And in another decision, Sessions suggested exactly what type of asylum cases he deemed most appropriate for such treatment.

Sessions’s most egregious decision attempted to unilaterally strip women of the ability to obtain asylum as victims of domestic violence.  This was not an issue that was in dispute, but had been a matter of settled law since 2014, when the BIA issued its precedent decision in Matter of A-R-C-G-, in which the DHS had stipulated that “married women in Guatemala who are unable to leave their relationship” constituted a cognizable particular social group to which asylum could be granted.

In certifying the case of Matter of A-B- to himself to reconsider such holding, Sessions invited briefs from all interested parties.  A total of 14 briefs were filed, two by the parties, and 12 amicus briefs (including one from my group of former IJs and BIA members).  The briefs from both parties (i.e. including DHS), and of 11 of the amici (the exception being FAIR, an anti-immigration group that regularly files the sole opposing amicus brief in such cases) all concluded that A-R-C-G- should not be vacated, and constituted a valid application of law which satisfied all of the BIA’s post-purge obstacles described above.  Thus, with the exception of FAIR, there was agreement by DHS, the BIA, the private bar, legal scholars, advocacy groups, and under international law as to the validity of the existing practice.

Nevertheless, Sessions issued a poorly-written decision in which he strongly disagreed, and vacated A-R-C-G- while attempting to make it close to impossible for such claims to succeed in the future.  I emphasize the word “attempting,” because fortunately, Sessions is a terrible lawyer with no asylum law expertise.  As a result, his decision is largely dicta, which even Department of Justice attorneys admit only managed to vacate A-R-C-G- without otherwise altering the legal factors that would allow such grants in the future.  But the BIA has simply been dismissing such claims on the grounds that Sessions had rejected them, without undertaking the individualized analysis required in such cases.  As a result, the circuit courts, and not the BIA, will likely decide the propriety and impact of Sessions’s decision.

My final note concerning A-B- is that while the case was still pending before him, Sessions stated in a radio interview in Arizona that “We’ve had situations in which a person comes to the United States and says they are a victim of domestic violence; therefore they are entitled to enter the United States.  Well that’s obviously false, but some judges have gone along with that.” Clearly, any judge making such a statement would have to recuse him or herself from the case. But Sessions, who never hid his bias against immigrants (among other groups), neither felt the need to be impartial, nor did the law require it of him.

Which makes Deputy Attorney General Rod Rosenstein’s recent remarks to a new class of immigration judges particularly worrisome.  Rosenstein reminded the group that they are “not only judges,” but also employees of the Department of Justice, and members of the executive branch.  As such, Rosenstein stated, IJs must “follow lawful instructions from the Attorney General, and…share a duty to enforce the law.”  But shouldn’t judges who make such important decisions that sometimes involve life and death be “only judges?”

The incongruity is that the DOJ is an enforcement agency.  As such, it is not designed to be either neutral or transparent.  As already noted at length, it is headed by a Presidential political appointee, many of whose decisions and policies are guided by a purely political agenda.  As such, DOJ has never understood IJs, who need to be neutral, transparent, and insulated from political influence.

Although many in EOIR’s management hold titles that make them sound like judges, in fact, they see their role not as protectors of immigration judge independence, but rather as executive branch, DOJ managers whose main job is to appease their higher-ups in the Justice Department.  They view DHS not as one of the parties appearing before the agency, but rather as fellow executive-branch comrades. They take the same view of attorneys with OIL and the U.S. Attorneys Office who litigate immigration decisions in the federal courts. Significantly, they view the private bar and academia as being outside of this executive branch fold.

As my friend and fellow blogger, retired Immigration Judge Paul Schmidt recently wrote in a blog post, “what real court acts as an adjunct to the prosecutor’s office?” adding that such relationship is common in authoritarian, refugee-producing countries.

The last recent development I wish to mention that underscores this conflict was the treatment of a highly respected and fair immigration judge in Philadelphia, Steven Morley, who had issued a decision which was certified and reversed by Sessions, Matter of Castro-Tum.  Castro-Tum entered the U.S. as an unaccompanied minor.  After his release from ICE detention, he did not appear for his immigration court proceedings.  However, Judge Morley was concerned, based on his past experience, that ICE had provided the court with an inaccurate address for the youth, and felt it would be unfair to order him removed in absentia without first determining if he had received proper notice of the hearing as required by law.

On remand, Judge Morley was directed by Sessions to proceed  according to the section of the law that governs in absentia orders.  Now, that section also requires a finding of proper notice on the respondent.  Judge Morley therefore proceeded properly and consistently with the AG’s order when he granted a short continuance for briefing on the issue of proper notice.  In response, the case was immediately removed by EOIR management from Judge Morley’s calendar. While a case would normally then be randomly reassigned to another judge in the same court, EOIR hand chose a management-level supervisory judge known for following the company line, who was sent to Philadelphia to conduct a single five-minute hearing in which she ordered the youth removed in his absence.  Furthermore, Judge Morley was chastised by his supervisor, Assistant Chief Immigration Judge Jack Weil, who, according to a grievance filed by the IJ’s union, incorrectly told Judge Morley that he was required to enter a final decision at the first hearing following the remand, and further falsely accused him of acting unprofessionally in purportedly criticizing the AG’s and BIA’s decisions.  86 similar cases were subsequently removed from Judge Morley’s calendar. Such action sent a very strong warning to the entire IJ corps (many of whom are new hires still in their two year probation period) of what to expect should they choose to act as “only judges” and not loyal employees of the Attorney General and executive branch.

The above inadequacies in the immigration court system have allowed the present administration to exploit it like never before in support of its own political narrative.  Examples of this include:

The Trump Administration’s early trumpeting of causing a “return to the rule of law” by increasing the number of removal orders its judges entered compared to the prior administration.  Early on, this was supposedly “accomplished” through what Paul Schmidt refers to as “ADR” or Aimless Docket Reshuffling. Judges in busy courts were told to continue two weeks worth of cases at a time (usually involving noncitizens represented by attorneys who had already waited years for their day in court) to instead travel to courts near the southern border to hear cases of largely unprepared and unrepresented, newly-arrived asylum seekers.  To repeat, in fact, the backlog has grown significantly in spite of such policies.

The administration also maintains a false narrative that Central American asylum seekers fleeing horrible gang and domestic violence are not really refugees, and in fact are dangerous criminals.  Through the AG’s issuance of Matter of A-B- and the compliant BIA’s reliance on that decision to give short shrift to such claims; through the detention of asylum seekers in remotely located detention centers, and the new policy of forcing some to wait in Mexico while their claims are adjudicated, thus severely limiting such asylum seekers access to counsel and their ability to meaningfully participate in compiling evidence and otherwise presenting their best claims; by indoctrinating new IJs that “these are not real claims,” the administration has artificially lowered the percentage of such claims that are being granted asylum, which thus furthers its narrative that “these are not real refugees.”

Furthermore, by forcing those attempting to apply legally to wait in Mexico under inhospitable and sometimes dangerous conditions for increasingly long periods of time, those who finally out of desperation cross the border without authorization are immediately arrested and tried criminally for the “crime” of crossing the border illegally, thus supporting the narrative that our country is being invaded by “criminals.”

The administration also maintains the narrative that immigrants should just be deported quickly, without due process and hearings before judges.  It is trying to accomplish this through the transformation of the immigration judge corps. By stripping IJs of much of what makes them independent judges, through the removal of necessary case management tools such as administrative closure, termination, and the ability to grant continuances; by imposing on them insulting completion quotas, and by making IJ training less about the proper application of the law and more about efficiency, many more experienced IJs are retiring sooner than they intended.  The administration is most happy to replace them with their hand-picked candidates who they expect to be made more compliant through the lengthy period of probation, the completion quotas, and an indoctrination of the type described above.

The result of all this was summarized in a detailed report of the ABA released last week.  The ABA report concluded that the immigration courts at present are “irredeemably dysfunctional” and on the verge of collapse.  There are those who believe that such collapse has been the goal all along, as it would allow the administration to replace the present system with one that is even more compliant and affords even less due process, perhaps something like the old special inquiry officer model.

What can be done?  A number of respected organizations, including the ABA, the Federal Bar Association, the American Immigration Lawyers Association, and of course the National Association of Immigration Judges have endorsed moving the immigration courts out of DOJ and making them an independent Article I court.

Article I status will likely not solve every problem, but for the reasons detailed above, it is an absolutely necessary starting point.  Article I is truly a non-partisan position. It’s first sponsor, Rep. McCollum, was a Republican; Sen. Gillibrand, who has recently shown interest in the issue, is a Democrat.  As the leader of a group of former immigration judges and BIA members, which includes members from across the ideological spectrum, I have found certain issues to be divisive within the group.  However, the issue of immigration judge independence has been unique in garnering universal support.

While it is too early to discuss the details of what such bill might contain, it is hoped that the BIA as presently constituted will be replaced by an immigration appeals court committed to independently and fairly interpreting the law, free of any fear of displeasing the Attorney General.  It’s members must be bipartisan, and appointed based on their knowledge of the law and their courage to apply it correctly. This would be a drastic change from the present group led by former Republican staffers still aiming to please their old bosses, and fleshed out with career DOJ bureaucrats who will loyally follow the party line.  I’ve always felt that choosing a former Article III judge to head an independent immigration court would immediately change the court’s priorities in the proper manner.

What role can we all play in making this happen?  At present, the most vocal advocates are immigration lawyers.  As such change would need to come from Congress, it bears noting that no elected official’s election hopes are likely to hinge on their winning the immigration lawyer vote, which amounts to probably a few thousand votes in total spread across many states and congressional districts.

However, we are all constituents of our senators and representatives. It is therefore incumbent on all of us to be advocates, and where possible, to join forces with other groups of constituents that might both share our interest in the issue and carry more sway with elected officials.

Speak out to anyone willing to listen to tell them that Article I is a non-partisan solution to the unrepairable mess that our present immigration court system has become.  In speaking to elected officials, try to find a reputable representative to endorse the concept.

Tell your own stories to make your points.  Because lawyers at heart are storytellers.

Explain that quotas and deadlines run contrary to judicial independence.

Ask for oversight hearings, to which groups such as the NAIJ, the ABA and AILA should be invited to the table.

Outside of the actual immigration judges and BIA, the following additional changes are needed.  First, ICE attorneys in the employ of DHS, i.e. the prosecutors in immigration court proceedings, must be allowed once again to offer prosecutorial discretion and to stipulate to grants in worthy cases, or to otherwise conference cases with private attorneys in an effort to streamline hearings.  I can’t think of any high volume court in which stipulations, plea agreements, and conferencing between the parties is not the common practice. Imagine what would happen to criminal courts if they were told that from now on, every jay walking ticket will require a full trial and appeal.

Prosecutorial discretion and some of these other streamlining techniques had finally become common practice in the immigration courts under the Obama administration.  It makes good sense and serves an important purpose in such an overburdened system to prioritize cases, and temporarily close out those cases that are not a priority. Most such cases involve noncitizens who are law-abiding, tax-paying individuals, some of whom have US citizen children.

Lastly, there are a large number of specially-trained asylum officers presently employed by DHS.  Some have suggested moving them as well into an independent court system in a supporting role, and providing the asylum officers with expanded jurisdiction to hear not only a broader array of asylum claims (thus removing those cases they grant from the actual judges’ dockets), but perhaps also allowing the asylum officers to adjudicate other classes of cases, such as cancellation of removal claims.

In closing, as summarized earlier, over several decades, immigration judges evolved from non-judicial adjudicators in the employ of an enforcement agency into administrative judges comprised of lawyers from a broad spectrum of ideological backgrounds who were allowed to exercise a good deal of independent judgment in a court setting.  And much of this positive development came from the “bottom up,” through the judges’ own collective efforts.

Because the final step of Article I status was never realized, actions by the Trump administration, which views independent judges as an unwanted obstacle to enforcing its own anti-immigration agenda, is attempting to roll back immigration judges to a state more closely resembling their INS special inquiry officer origins.

Although my focus has been on the present crisis under the Trump Administration, in fairness I want to state that the factors which set the stage for it built up over many years under both Democratic and Republican administrations.  Regardless of what administration follows this one, the immigration courts at best will almost certainly continue to suffer from the not-so-benign neglect that led us here, simply because immigration is such a controversial topic that problems are kicked down the road rather than resolved.

The reforms which Article I will bring will help insulate the system from unnecessary costs and delay caused by clogged dockets and unnecessary appeals prompted by a lack of trust in the system.  It will also help guarantee a clear funding stream with necessary resources not syphoned off by DOJ for other programs, and will safeguard the Circuit Courts from needless (and costly) appeals.

For all of these reasons, only an independent Article I court can sufficiently remove the threat of political manipulation, and again restore the faith in the immigration court’s fairness and impartiality that a democracy requires.

Copyright 2019 Jeffrey S. Chase. All rights reserved.



Court Rebukes Youth Policy Shift



Jeffrey S. Chase is an immigration lawyer in New York City.  Jeffrey is a former Immigration Judge, senior legal advisor at the Board of Immigration Appeals, and volunteer staff attorney at Human Rights First.  He is a past recipient of AILA’s annual Pro Bono Award, and previously chaired AILA’s Asylum Reform Task Force.


Thanks Jeffrey my friend and colleague for telling it like it is and setting the record straight.






Here’s what Attorney Matthew Hoppock, whose firm made the FOIA request, had to say about Judge Pauley’s presentation:

Developments in Criminal Immigration and Bond Law:

Slides – Developments in Criminal Immigration and Bond Law

This presentation is really striking, because Board Member Roger Pauley appears to be instructing the IJs not to apply the “categorical approach” when it doesn’t lead to a “sensible result.” The “categorical approach” is mandatory, and the Supreme Court has repeatedly had to reverse the BIA and instruct them to properly apply it.  So, it’s definitely disheartening to see this is the instruction the IJs received at their conference this summer on how to apply the categorical approach:


Can’t say this is unprecedented. I can remember being astounded and outraged by some past presentations that essentially focused on “how to find the respondent not credible and have it stand up in court,” “how to deny claims establishing past or future persecution by invoking ‘no-nexus’ grounds,” and “how to find proposed ‘particular social groups non-cognizable’ under the BIA’s three-part test.”

I also remember a BIA Judge essentially telling us to ignore a previous “outside expert” panel that provided evidence that governments in the Northern Triangle were stunningly corrupt, politically beholden to gangs, and totally incapable of protecting the population against targeted gang violence.

Another colleague gave a stunningly tone-deaf presentation in which they referred to OIL and ICE as “us” and the respondents as “them.”

But, presentations like Judge Pauley’s are particularly troubling in the context of a so-called “training conference” where the “keynote speech” by the judges’ titular “boss” Jeff Sessions touted his decision removing asylum protections from battered women, warned judges to follow his precedents, emphasized increasing “volume” as the highest priority, and otherwise notably avoided mentioning the due process rights of respondents, the need to insure protection for asylum seekers, or the obligation to follow decisions of the Article III Courts (the latter has been, and remains, a chronic problem for EOIR).

Many of the Immigration Judges were recently hired, attending their first national conference. What message do you think they got about how to be successful in the “Age of Trump & Sessions?” What message did they get when a vocal minority of their colleagues improperly “cheered” the removal of protections for vulnerable refugee women? How would YOU like to be a foreign national fighting for your life in a system run by Jeff Sessions?

Right on cue, EOIR provides another powerful example of why Professor Maureen Sweeney was right in her recently posted article: the Article III Courts should NOT be giving the BIA or Sessions “Chevron deference.”







THREE FROM “TIRELESS TAL” @ CNN: 1) First, Salvadoran Women Was Forced To Perform Slave Labor By Salvadoran Guerrillas, Then The BIA Shafted Her; 2) Trump/Sessions Scofflaw Attack On “Sanctuary Cities” Stomped By Yet Another U.S. Judge; 3) GOP Continues Internal Immigration Negotiations!


Woman’s forced labor for Salvadoran guerillas means she must leave US, court rules

By Tal Kopan, CNN

She was kidnapped by Salvadoran guerillas three decades ago, watched her husband be killed and forced to cook and clean for the militants. Now she can’t stay in the US.

The main appellate body of the immigration courts issued a divided opinion Wednesday with broad implications, finding that a woman from El Salvador is ineligible for status in the US because her 1990 abduction and forced labor amount to “material support” of a terrorist organization.

According to the court documents, the woman was kidnapped by the guerillas in El Salvador and made to do the cooking and cleaning “under threat of death.” She was also “forced to witness her husband, a sergeant in the Salvadoran Army, dig his own grave before being killed.”

Nevertheless, the 2-1 opinion holds that the woman’s coerced duties for the group constituted “material support” for a terrorist organization, and thus made her ineligible to be granted asylum or have her deportation order canceled in the US — though a lower court judge had ruled she would otherwise be eligible for such relief. The woman first came to the US illegally in 1991 but gained Temporary Protected Status — which is granted to countries that suffer natural disasters and other mass problems and was afforded to El Salvador for decades.

But she left the US and tried to return in 2004, when the government began deportation proceedings against her. Wednesday’s decision is the product of years of litigation regarding her case in the immigration courts — a judicial body for immigration-related claims run by the Justice Department.

Writing for the majority, Board of Immigration Appeals Judge Roger Pauley ruled that “material support” can be virtually anything that is provided to a terrorist organization that supports their overall mission that they would otherwise would need to seek somewhere else.

“In fact, no court has held that the kind of support an alien provides, if related to promoting the goals of a terrorist organization, is exempt from the material support bar, and we discern no basis to import such a limitation,” Pauley wrote.

Pauley also concluded there was no exception for support given “under duress” under US law and the actions do not need to be “voluntary.”

Dissenting board member and Judge Linda Wendtland blasted the court’s interpretation, pointing out the relevant statute lists a number of examples of “material support” like offering safe houses, transportation, funds and other tangible furtherance of their mission.

“I cannot conclude that the menial and incidental tasks that the respondent performed — as a slave — for Salvadoran guerrillas, including cooking, cleaning, and washing clothes, are of ‘the same class’ as the enumerated forms of assistance set forth in the statute,” Wendtland wrote. “Under the majority’s strained interpretation, providing a glass of water to a thirsty individual who happened to belong to a terrorist organization would constitute material support of that organization, because the individual otherwise would have needed to obtain water from another source.”

For the decision to be overturned, the woman in the case would have to appeal to a federal circuit court or succeed in persuading Attorney General Jeff Sessions — who serves as a functional one-man Supreme Court of the immigration courts — to intervene.


Judge slaps Sessions, feds over ‘sanctuary cities’

By: Tal Kopan, CNN

A federal judge has once again rebuked the administration’s efforts to pressure so-called sanctuary cities, going further than any to date in using a recent Supreme Court decision to rule an existing federal law unconstitutional.

The ruling Wednesday from Judge Michael Baylson, a George W. Bush appointee, thus far applies only to his district in the Philadelphia area, but it could lay the groundwork for even more rulings that further limit what the administration can do to punish sanctuary cities — a key priority of the administration.

The decision relies, in part, on a May ruling from the Supreme Court on state gambling laws.

Baylson had already blocked the Justice Department from imposing new conditions on federal law enforcement grants that Philadelphia has received in the past, limiting his November ruling to the city, which had challenged the move by Attorney General Jeff Sessions. A federal judge in Chicago also has already blocked the new conditions nationwide, a ruling that was upheld in April by an appeals court. The effort from Sessions to impose the conditions had been an attempt to punish sanctuary cities after a federal judge in California had blocked the administration from pursuing broader funding threats.





House GOP immigration negotiations continue ahead of key Thursday meeting

By: Tal Kopan and Lauren Fox, CNN

House Republicans are bracing for a two-hour conference meeting Thursday morning on immigration, which could determine the fate of moderate members’ efforts to force a vote on several immigration bills.

“I think a lot of it hangs on that meeting tomorrow,” said Rep. Mia Love, R-Utah, who has signed a  House procedural maneuver — known as a discharge petition — that allows lawmakers to bypass leadership and force a vote on the floor if they can get a majority of members to sign on.

Ahead of that consequential gathering, the key leaders on the moderate and conservative sides of the issue were huddling with party leadership in Speaker Paul Ryan’s effort in hopes of reaching a consensus that could be presented to their colleagues in the morning.

On their way to the Wednesday meeting and earlier in the day, negotiators expressed optimism but were still far apart on the issue of establishing citizenship for recipients of the Deferred Action for Childhood Arrivals program.



Tal’s range, depth, productivity, and readability are simply breathtaking! Don’t know how she does it, but I’m glad she does! I also love her description of Sessions as a “functional one-man Supreme Court.” Wish I’d thought of that one!

Thanks and kudos also to Tal’s terrific colleague Lauren Fox (below) who also is a “Courtside regular.”






(1) An alien provides “material support” to a terrorist organization if the act has a logical and reasonably foreseeable tendency to promote, sustain, or maintain the organization, even if only to a de minimis degree.

(2) The respondent afforded material support to the guerillas in El Salvador in 1990 because the forced labor she provided in the form of cooking, cleaning, and washing their clothes aided them in continuing their mission of armed and violent opposition to the Salvadoran Government.





The Immigration Judge incorporated by reference the respondent’s credible testimony and all the documents submitted at her cancellation of removal hearing. In her August 8, 2016, decision, the Immigration Judge found that the respondent is ineligible for asylum and withholding of removal based on the material support bar in section 212(a)(3)(B)(iv)(VI) of the Act. The Immigration Judge stated that, but for the material support bar, she would have granted the respondent’s asylum application on humanitarian grounds pursuant to Matter of Chen, 20 I&N Dec. 16 (BIA 1989), noting the horrific harm she experienced from the guerrillas in El Salvador because, in addition to being kidnapped and required to perform cooking and cleaning for the guerrillas under threat of death, the respondent was forced to witness her husband, a sergeant in the Salvadoran Army, dig his own grave before being killed. However, the Immigration Judge granted the respondent’s request for deferral of removal pursuant to the Convention Against Torture.


In view of our relatively recent holding in Matter of M-H-Z-, 26 I&N Dec. 757 (BIA 2016), that the material support bar contains no exception for duress, “it is especially important to give meaning to the statutory limit of ‘material.’ That term calls for [I]mmigration [J]udges, the Board, and the courts to strike a balance written into the Act.” Jabateh v. Lynch, 845 F.3d 332, 348 (7th Cir. 2017) (Hamilton, J., concurring in part and concurring in the judgment). Individuals arriving in this country from “some of the most dangerous and chaotic places on earth . . . may not have been able to avoid all contact with terrorist groups and their members, but we should not interpret the statute to exclude on this basis those who did not provide ‘material’ support to them,” since “[m]any deserving asylum-seekers could be barred otherwise.” Id. Unlike the majority, which apparently would apply the bar without any meaningful limit, I would not decline to carry out our responsibility to strike the foregoing critical balance.

Nor do I believe that Congress intended to relegate the respondent, who did not afford support that qualifies as “material,” to the statutory waiver process under section 212(d)(3)(B)(i) of the Act, which is intended only for those individuals whose support did meet the threshold materiality requirement.2 And given my view that the respondent’s conduct does not come within the “material support” bar in the first place, I need not reach the question whether the respondent reasonably should have known that the guerrillas in 1990 in El Salvador were a terrorist organization.


Once again, faced with competing possible interpretations of the law, the BIA majority chooses the interpretation most unfavorable to the applicant. So, what else is new?

The majority judges engage in a wooden, lifeless, hyper-technical analysis, devoid of any obvious understanding of either the purpose of refugee laws or the actual human situation of refugees. By contrast, Judge Wendtland shows an understanding of both the human situation of refugees and undesirability and impracticality of construing the law so as to bar deserving refugees or force them to “jump through more hoops.”

Everybody actually agrees that “but for” this obtuse application of the law, this respondent deserves asylum! So, why not just take the readily available course of construing the ambiguous provision in favor of the applicant?  Why go out of the way to create bad law and hurt innocent individuals? Why would Congress have desired this absurdly unpalatable result?  And, I wouldn’t count on the USCIS under the policies of this Administration to grant a waiver in this case under their even more opaque and politicized processes.

This case also demonstrates a continuing practice of the BIA to render major precedents without considering the case en banc. How many of the other Appellate Immigration Judges agree with Judge Pauley’s decision? How many agree with Judge Wendtland? On which side are Chairman Neal and Vice Chair Adkins-Blanch?

We’ll never know, because today’s Board imposes life or death decisions on respondents and changes the course of the law while allowing the vast majority the Appellate Immigration Judges to hide in anonymity in their “Ivory Tower” chambers, without any accountability or taking any legal or moral responsibility for the decisions that they impose on others. It’s a national disgrace (originating with the bogus “Ashcroft reforms”) that must be changed for the BIA to once again become a credible appellate tribunal.

Due process and fairness to individuals are fictions in today’s broken and biased U.S. Immigration Court system. We shouldn’t pretend otherwise!




THE GIBSON REPORT – 05-29-18 – COMPLIED BY ELIZABETH GIBSON, ESQUIRE, NY LEGAL ASSISTANCE GROUP — Highlighting Significant, Yet Unfortunately Unpublished, BIA Holding That 2 Weeks Was An Inadequate Continuance To Seek an Attorney!





TRAC Finds ICE Deportations Dropped by Almost Half Over Past Five Years

TRAC released a report on ICE deportations, updated through October 2017, finding that deportation levels have dropped by almost half since October 2012. TRAC also provided updated web tools on ICE deportation data including a breakdown on convictions and number of ICE deportations. AILA Doc. No. 18052231


BIA Holds Two-Week Continuance Not Sufficient Time to Find an Attorney

Unpublished BIA decision finds that IJ denied respondent’s right to counsel by providing only two weeks to find an attorney. Special thanks to IRAC. (Matter of Santos-Gijon, 6/22/17) AILA Doc. No. 18052337


Neglect and Abuse of Unaccompanied Immigrant Children by U.S. Customs and Border Protection

ACLU: Documents obtained by the American Civil Liberties Union featured in a new report released today show the pervasive abuse and neglect of unaccompanied immigrant children detained by U.S. Customs and Border Protection.


She came to the US for a better life. Moments after arrival, she was killed

CNN: Claudia Patricia Gomez Gonzalez traveled 1,500 miles to the United States, hoping to find a job and a better future. Shortly after she set foot in Texas, a Border Patrol agent shot and killed her.


Border Patrol union calls Trump’s National Guard deployment ‘colossal waste’

LA Times: A month after President Trump called for sending National Guard troops to the U.S.-Mexico border, the head of the national Border Patrol union called the deployment “a colossal waste of resources.” “We have seen no benefit,” said Brandon Judd, president of the union that represents 15,000 agents, the National Border Patrol Council.


Swept up in the Sweep: The Impact of Gang Allegations on Immigrant New Yorkers

NYIC: Through an extensive field study, the report shows how Immigration and Customs Enforcement (ICE), with other federal agencies and law enforcement, uses arbitrary methods to profile immigrant youth of color to allege gang affiliation.


Deportation by Any Means Necessary: How Immigration Officials Are Labeling Immigrant Youth as Gang Members

ILRC: This report details findings from a national survey of legal practitioners concerning the increased use of gang allegations against young immigrants as a means of driving up deportation numbers, at the encouragement of the Trump administration.


Pretermitting Gang PSGs

AILA Listserv: It appears that, at least in some jurisdictions, DHS is moving to pretermit gang PSGs for asylum before merits hearing. Looks like we must also be prepared to respond to these arguments going forward. See useful gang PSG resources attached.


Civil rights groups slam DeVos for saying schools can report undocumented students

WaPo: Civil rights groups slammed Education Secretary Betsy DeVos for saying Tuesday that schools can decide whether to report undocumented students to immigration enforcement officials, saying her statements conflict with the law and could raise fears among immigrant students.


DHS Prosecutes Over 600 Parents in Two-Week Span and Seizes their Children

AIC: Following implementation of a “zero tolerance” policy, the Department of Homeland Security (DHS) announced that 638 parents who crossed with children had been prosecuted in just a 13-day span this month.


New RFE Policy

From the USCIS District Director’s meeting: Starting immediately if you are issued an USCIS RFE that you need to submit to 26 Federal Plaza they will be issuing a notice giving you a time to hand deliver it.  The dates will always be on Fridays and the notice will state that you can come in anytime between 7am-12pm on that date to hand the RFE response in at the indicated window.  There will be no interview – you will just hand in the response and get your copy stamped.  They are moving away from mail in RFE responses because of too many problems with the post office.


U-visa Categories (attached)

ASISTA: The AAO seems to have paid attention to our amicus arguments on U visa crimes as “categories” in their decision in the case underlying our amicus, see attached redacted decision and the amicus.  We will need to keep pushing this framework, however, so please continue using the arguments in the amicus when arguing crime categories.  We do not, for instance, agree that the DV category contemplates only the facts involving relationships; many crimes are DV depending on the facts of the crimes, not just the relationships.  See attached.


Stay Requests

HerJusticeOn this topic, I learned last year that ICE ERO (NYC) wasn’t even accepting applications for stay of removal if the applicant didn’t have a current passport—is this still the case?

LSNYC: As I understand it, it’s always been ICE’s policy that the applicant for a stay (I-246) must have a current passport. Really, the Officers are all over the place when it comes to stays.  Some say they are not accepting stays, some say so long as the client has something pending (appeal, MTR, U/VAWA/T, etc) no removal will be effectuated and that no stay is needed until removal is imminent.

Sanctuary: Our office recently filed a stay of removal, and in the alternative request for deferred action, for a client with a removal order from 2009 whose son has hemophilia. ERO accepted the stay without her passport. ERO said that they would make a decision on within 3 months, and if not, she is to return for another check-in at the end of June.


Immigrant Legal Aid Group Withdraws Request for Montgomery County Funding with Carve Out

Bethesda Mag: A Washington, D.C., nonprofit set to receive about $374,000 in Montgomery County funds to provide deportation defense to detained immigrants has withdrawn its request for the money in response to an updated list of criminal convictions that would bar certain immigrants from receiving legal aid.


Anti-Immigrant Extremist Nominated to Run Refugee Office at State Department

HRF: In response to the nomination of Ronald Mortensen to serve as Assistant Secretary of State for Population, Refugees and Migration, the senior-most American diplomat representing the United States in matters relating to the most vulnerable populations in the world, Human Rights First’s Jennifer Quigley issued the following statement: “Mortensen has spent the past several years working at an anti-immigrant hate group, spewing vile, extremist views that have no relation to reality.”


Immigration dominating GOP candidates’ TV ads in House contests across the country

USA Today: House Republican candidates are blanketing the airwaves with TV ads embracing a hard line on immigration — a dramatic shift from the last midterm elections in 2014 when immigration was not on the GOP’s political radar, according to a USA TODAY analysis of data from Kantar Media.


U.S. Immigration Courts, Long Crowded, Are Now Overwhelmed

The Wall Street Journal reports on the U.S. immigration court system’s backlog increasing 25 percent since President Trump took office, with insights on the situation from AILA National Secretary Jeremy McKinney. AILA Doc. No. 18052342


This Salvadoran Woman Is At The Center Of The Attorney General’s Asylum Crackdown

NPR: Attorney General Jeff Sessions is stirring panic in immigrant communities by moving to limit who can get asylum in the United States. Perhaps no one is more alarmed than one Salvadoran woman living in the Carolinas…Now Sessions has personally intervened in her case, questioning whether she and other crime victims deserve protection and a path to American citizenship.




SIJS Family Court Appellate Case

2d dept remanded and ordered a new judge be assigned after a Nassau County Fam Court Judge dismissed a mother’s petition for guardianship and refused to set the motion for special findings, without any hearing. They also made note of the judge’s wildly inappropriate remarks.


Supreme Court Delays Further in Deciding Certiorari Petition in Case Involving Abortion by Undocumented Teen

ImmProf: [May 21], the Supreme Court granted certiorari in four cases and also issued orders (denied cert, etc.) in a number of cases.  The press room, as it has been for so many weeks, was buzzing about the possible disposition of the U.S. government’s cert petition in Azar v. Garza, a case involving the undocumented pregnant teenager. The government wants the Supreme Court to vacate the D.C. Circuit decision that cleared the way for her to get an abortion.  The Court did not act on the case this morning.


Detainees in Stewart Detention Center File Suit Challenging Forced Labor Practices

Plaintiffs filed a class action suit against private prison company CoreCivic challenging its practice of depriving detained immigrants of basic necessities so they are forced to work at well below minimum wage to purchase items at the prison commissary. (Barrientos v. CoreCivic, 4/17/18) AILA Doc. No. 18052163


DOJ Announces Airlines Staffing Executive Sentenced for Immigration Fraud

DOJ announced that Eleno Quinteros, Jr., the former vice president of operations for two airline mechanic staffing companies, was sentenced today to 12 months in prison for making false statements in support of legal permanent resident petitions for dozens of the companies’ mechanics. AILA Doc. No. 18052162


DOJ Settles Immigration-Related Discrimination Claim Against University of California, San Diego

Posted 5/25/2018

DOJ announced a settlement agreement with the University of California, San Diego. The settlement resolved whether the University’s Resource Management and Planning Vice Chancellor Area discriminated against workers in violation of the INA when verifying their continued authorization to work.

AILA Doc. No. 18052532


Documents Relating to Los Angeles’s Challenge to Immigration Enforcement Conditions on Federal Law Enforcement Grants

The court issued an order granting the government’s request to expedite the case. The case will be calendared for September 2018. (Los Angeles v. Sessions, 5/15/18) AILA Doc. No. 18041638


BIA Holds Two-Week Continuance Not Sufficient Time to Find an Attorney

Unpublished BIA decision finds that IJ denied respondent’s right to counsel by providing only two weeks to find an attorney. Special thanks to IRAC. (Matter of Santos-Gijon, 6/22/17) AILA Doc. No. 18052337


BIA Holds Child Abuse Ground of Deportability Does Not Apply to Attempt Crimes

Unpublished BIA decision holds that attempt to endanger the welfare of a child under N.Y.P.L. 260.10 is not a crime of child abuse because INA §237(a)(2)(E)(i) only applies to completed crimes. Special thanks to IRAC. (Matter of B-Q-, 6/20/17) AILA Doc. No. 18052432


BIA Finds Wisconsin Prostitution Statute Is Categorically an Aggravated Felony

The BIA reinstated removal proceedings, after finding that INA §101(a)(43)(K)(i) encompassed offenses related to the operation of a business that involves engaged in, or agreeing or offering to engage in, sexual conduct for anything of value. Matter of Ding, 27 I&N Dec. 295 (BIA 2018) AILA Doc. No. 18052164


BIA Holds Possession of Drug Paraphernalia in Arizona Is Not a Controlled Substance Offense

Unpublished BIA decision holds possession of drug paraphernalia under Ariz. Rev. Stat. 13-3415(A) is not a controlled substance offense because the state schedule is overbroad and the identity of the drug is not an element of the offense. Special thanks to IRAC. (Matter of Lopez, 6/16/17) AILA Doc. No. 18052160


BIA Reverses Discretionary Denial of Adjustment Application

Unpublished BIA decision reverses discretionary denial of adjustment application where respondent had five U.S. citizen children, was active in church, and last DUI offense was more than eight years prior. Special thanks to IRAC. (Matter of Rodriguez, 6/15/17) AILA Doc. No. 18052230


BIA Limits Application of Firm Resettlement Bar

Unpublished BIA decision holds that the firm resettlement bar does not apply to asylum applicants who fear persecution in the country of alleged resettlement. Special thanks to IRAC. (Matter of L-K-U-, 6/16/17) AILA Doc. No. 18052332


CA4 Upholds CBP Search of Smartphone Seized While Defendant Was Exiting the United States

The court found it was reasonable for the CBP officers who conducted a month-long forensic analysis of the defendant’s smartphone to rely on precedent allowing warrantless border searches of digital devices based on at least reasonable suspicion. (U.S. v. Kolsuz, 5/9/18, amended 5/18/18) AILA Doc. No. 18052165


White House Releases Fact Sheet on MS-13

The White House released a purported fact sheet on MS-13, in which it refers to these individuals as “animals.” AILA Doc. No. 18052232


USCIS Issues Policy Guidance on CSPA

USCIS issued policy guidance in the USCIS Policy Manual regarding the Child Status Protection Act (CSPA). This guidance is controlling and supersedes any prior guidance on the topic. Comments are due by 6/6/18. AILA Doc. No. 18052339


USCIS Notice on the Termination of the Designation of Nepal for Temporary Protected Status

USCIS notice on the termination of the designation of Nepal for TPS on 6/24/19. Holders of TPS from Nepal who wish to maintain their TPS and receive an EAD valid through 6/24/19 must re-register for TPS in accordance with the procedures set forth in the notice. (83 FR 23705, 5/22/18) AILA Doc. No. 18052236


EOIR Released Percentage of Detained Cases Completed Within Six Months

EOIR released statistics on the percentage of detained cases completed within six months. As of 3/31/18, 89 percent of initial case completions were completed in less than six months. AILA Doc. No. 18052237


ICE Announces 24-Month Imprisonment for ICE Agent Impersonator

ICE announced that Matthew Ryan Johnston was sentenced to 24 months in federal prison after possessing multiple destructive devices and using fake ICE badges and uniforms to falsely represent himself as an ICE agent to unsuspecting members of the public. AILA Doc. No. 18052561











The second item on Elizabeth’s List is well worth a look. Although the BIA has stayed away from addressing in a precedent the length and number of continuances required to meet minimum standards of Due Process, this unpublished BIA decision finds that a two-week continuance to locate counsel was inadequate.

That certainly would have been the case in Arlington when I was there, particularly given the unnecessary pressure being put on pro bono counsel by the Obama’s Administration’s policies of “ADR” and “gonzo scheduling” of so-called “priority cases.”

This decision also confirms and reinforces what many of us retired U.S. Immigraton Judges and BIA Appellate Immigration Judges have been saying all along: by pushing the court system to move more cases, faster, and with limited continuances, Immigration Judges are effectively being encouraged to deny Due Process to respondents who do have a right to be represented at no expense to the Government. That right clearly includes reasonable access to, and a resonable opportunity to locate, pro bono counsel. Clearly that didn’t happen here. I suspect it’s also not happening in thousands of other cases — particularly detained cases — across the country.

Instead of protecting Due Process and encouraging “best practices” by U.S. Immigration Judges, Sessions and EOIR Management are feverishly working to instill “worst practices” in the Immigration Courts. The BIA won’t catch all of them, particularly in the absence of helpful precedents. Indeed, and quite remarkably, even this modest declaration of minimum Due Process produced a “split” BIA panel with Judge Roger Pauley signing the order, joined by Judge Edward Grant, but with Judge Ana Mann “dissenting without opinion.”

All of this is likely to mean 1) more denials of Due Process in Immigration Court; 2) more lives ruined; and 3) more “otherwise avoidable” remands from the Courts of Appeals.

Just like mother always said:  “Haste Makes Waste!”



Judge Patricia A. Cole Dissents From BIA Panel Majority’s Rewriting Of The Agfel Definition Of “Prostitution” To “Zap” Respondent – Majority “Dings Ding” in Matter of Ding, 27 I&N Dec. 295 (BIA 2018)

Matter of Ding


(1) The term “prostitution” in section 101(a)(43)(K)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(K)(i) (2012), which provides that an offense relating to the owning, controlling, managing, or supervising of a prostitution business is an aggravated felony, is not limited to offenses involving sexual intercourse but is defined as engaging in, or agreeing or offering to engage in, sexual conduct for anything of value.

(2) The offense of keeping a place of prostitution in violation of section 944.34(1) of the Wisconsin Statutes is categorically an aggravated felony under section 101(a)(43)(K)(i) of the Act.


OPINION BY: Judge Roger A. Pauly

DISSENTING OPINION: Judge Patricia A. Cole


We disagree with the Immigration Judge and with the case law on which he relied because the term “prostitution” in section 101(a)(43)(K)(i) does not necessarily have the same meaning as it does in the inadmissibility provision at section 212(a)(2)(D). “It is not unusual for the same word to be used with different meanings in the same act, and there is no rule of statutory construction which precludes the courts from giving to the word the meaning which the Legislature intended it should have in each instance.” Atlantic Cleaners & Dyers v. United States, 286 U.S. 427, 433 (1932); see also Evntl. Def. v. Duke Energy Corp., 549 U.S. 561, 574 (2007).


I respectfully dissent. I agree with the Immigration Judge’s decision that the respondent’s conviction is not for an aggravated felony under the existing Federal definition of “prostitution.” The majority has crafted a definition of prostitution for purposes of section 101(a)(43)(K)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(K)(i) (2012), as engaging in, or agreeing or offering to engage in, sexual conduct for anything of value. The majority decision concludes that this newly crafted definition categorically covers the conduct proscribed by the Wisconsin statute at issue in this case, but it notes that the precise contours of the term “sexual conduct” will be decided in future cases. This overly broad definition is supported by limited analysis, and it is contrary to immigration law, the law of the United States Court of Appeals for the Seventh Circuit, and the canons of statutory construction.

The majority does not provide any analytical authority for its definition other than noting that the definition is “similar” to that of Black’s Law Dictionary and providing, without any analysis, a survey of the definitions of “prostitution” from the 50 States and the District of Columbia in 1994. Additionally, the majority does not even discuss the ramifications of its new definition of prostitution for section 101(a)(43)(K)(ii) of the Act, which references the provisions of 18 U.S.C. §§ 2421, 2422, and 2423 (2012), which relate to engaging in “prostitution, or in any sexual activity.”


Judge Cole’s dissent makes sense to me.  Nice to see that occasionally BIA Appellate Immigration Judges stand up for legal constructions that don’t invariably favor deportation of respondents who have been convicted of crimes.

While constructions of immigration statutes often divide Article III judges, all the way up to the Supremes, the BIA’s “Post Ashcroft Purge” jurisprudence has been intentionally bland and one-sided — largely without dissent or transparent deliberation. Moreover, as I have observed before, the BIA’s practice under the Ashcroft “Reforms” and the Obama Administration’s “Go Along to Get Along” approach has been largely to  issue published precedents by three-judge panels, rather than en banc.
This allows  80% of the BIA’s permanent judges to avoid expressing a view for against any particular precedent. Indeed, some BIA judges appear hardly at all on “precedent panels,” while others appear frequently. Thus, some BIA judges regularly avoid both possible controversy as well as accountability for their legal positions and votes on critical, life-defining issues. Rather a strange way for a so-called “expert deliberative tribunal” to operate, if I do say so myself.

IT TOOK MANY YEARS AND LOTS OF EFFORT, BUT RESPONDENTS FINALLY WON ONE @ THE BIA — ON STALKING — Matter of Sanchez-Lopez, 27 I&N Dec. 256 (BIA 2018), overruling Matter of Sanchez-Lopez, 26 I&N Dec. 7 (BIA 2012)


Matter of Sanchez-Lopez, 27 I&N Dec. 256 (BIA 2018), overruling Matter of Sanchez-Lopez, 26 I&N Dec. 7 (BIA 2012)


The offense of stalking in violation of section 646.9 of the California Penal Code is not “a crime of stalking” under section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2012). Matter of Sanchez-Lopez, 26 I&N Dec. 71 (BIA 2012), overruled.





Although the DHS appears to concede that stalking under section 646.9 is “overbroad” relative to the definition we outlined in Matter of Sanchez-Lopez, it asserts that we should broaden the definition of a “crime of stalking” under section 237(a)(2)(E)(i) of the Act to meet contemporary standards. Specifically, it argues that we should redefine the term “stalking” in the Act based on its commonly understood meaning, either in 2012 when we decided Matter of Sanchez-Lopez, or based on the common elements of State and Federal stalking statutes in 2017.

We recognize that the common elements of stalking have evolved since section 237(a)(2)(E)(i) was added to the Act in 1996, in that a number of States have broadened the term “stalking” to cover threats of nonphysical harm in an effort to afford greater protections to their citizens against stalkers. However, we are constrained to define offenses “based on the ‘generic, contemporary meaning’ of the statutory words at the time the

statute was enacted.” Matter of Cardiel, 25 I&N Dec. 12, 17 (BIA 2009) (quoting Taylor v. United States, 495 U.S. 575, 598 (1990)); see also Matter of Alvarado, 26 I&N Dec. 895, 897 (BIA 2016). The DHS relies on the decision of the Supreme Court in Voisine v. United States, 136 S. Ct. 2272, 2281 (2016), which declined “to wind the clock back” to consider the common law in discerning whether the provision at issue reached reckless acts. But that case also looked to the legislative history and the “state-law backdrop” that existed at the time the statute was enacted. Id. at 2280–82. We are therefore unpersuaded to broaden the definition of the term “stalking” under section 237(a)(2)(E) of the Act to encompass the most contemporary understanding of that offense.

Upon reconsideration, we conclude that the offense of stalking in violation of section 646.9 of the California Penal Code is not “a crime of stalking” under section 237(a)(2)(E)(i) of the Act. We will therefore overrule our decision in Matter of Sanchez-Lopez and vacate all prior orders in this case to the extent they hold to the contrary. Accordingly, because the respondent is not removable, his appeal will be sustained and the removal proceedings will be terminated.


The legal landscape has changed since we published our decision inMatter of Sanchez-Lopez. This case illustrates the limitations of applying the categorical approach imposed by the Supreme Court in Descamps andMathis to provisions of the immigration laws enacted by Congress for the purpose of removing aliens convicted of serious criminal conduct. See Matter of Chairez, 27 I&N Dec. 21, 25–26 (BIA 2017) (Malphrus, concurring). Under this approach, only if section 646.9 is divisible can we look to the respondent’s conviction records to determine if his conduct involved an intent to cause the victim to fear death or bodily injury, as many such stalking cases do. Because of this strict categorical approach, many statutes that have since broadened the scope of protection for stalking victims may not qualify as a categorical match to section 237(a)(2)(E)(i) of the Act. As a result, in California and many other States, an alien who was criminally convicted of stalking an innocent victim will not be removable under the Act, even though the record makes clear that he or she committed “a crime of stalking.” It is highly unlikely that Congress intended this result.


I liked the comment from Dan Kowalski over at LexisNexis Immigration Community: “It only took about 6 years and several trips up and down the administrative and judicial food chain.”

My point (that I make over and over) is that there is NO WAY that an unrepresented respondent (particularly in DHS detention where most respondents convicted of crimes end up) could have achieved this result. That means that unrepresented individuals are wrongfully deported by DHS every day. 

The Immigration Court system already is failing in its duty to guarantee fairness and due process to all respondents.  Outrageously, instead of doing what he should do — working to insure maximum representation and raising the quality of Immigration Judge and BIA decisions to insure Due Process — Jeff Sessions is doing just the opposite!

He’s putting “haste makes waste quotas” on Immigration Judges; encouraging judges to deny continuances needed to obtain counsel and adequately prepare defenses; locating Immigration Courts in detention centers which intentionally lack both public access and ready availability of pro bono counsel; using coercive, substandard detention and family separation to deter individuals from pursuing potentially successful claims and defenses; further skewing the law against asylum seekers; and suspending the essential “Legal Orientation Program” which helps unrepresented individuals in detention understand their rights and what will happen in Immigration Court before their first appearance before a judge.





Matter of CERVANTES NUNEZ, 20 I&N Dec. 238 (BIA 2018)


The crime of attempted voluntary manslaughter in violation of sections 192(a) and 664 of the California Penal Code, which requires that a defendant act with the specific intent to cause the death of another person, is categorically an aggravated felony crime of violence under section 101(a)(43)(F) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(F) (2012), notwithstanding that the completed offense of voluntary manslaughter itself is not such an aggravated felony.

PANEL:  BIA Appellate Immigration Judges Pauley, Guendelsberger, Wendtland

OPINION BY: Judge Roger A. Pauley


“Although perhaps counterintuitive, we therefore hold that the respondent’s offense of attempted voluntary manslaughter under sections 192(a) and 664 of the California Penal Code is categorically a crime of violence under § 16(a). Unlike the completed crime of voluntary manslaughter under California law, which encompasses reckless conduct and is therefore not categorically a crime of violence under Ninth Circuit law, attempted voluntary manslaughter requires the specific intent to kill. Although “physical force” is not an express element of attempted voluntary manslaughter, we deem it evident under Ninth Circuit law that the offense, which requires a “volitional,” or intentional, mental state and contemplates a direct act on the part of the accused that is capable of causing the death of another person, inherently presupposes the use of “physical force.” Since the respondent’s offense necessarily involves the intentional use of physical force, it “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. § 16(a).”


In this particular case, the respondent was convicted of both the completed crime of voluntary manslaughter and the attempt under California law. But, there could be cases where in negotiating a plea bargain, counsel would be better off from an immigration standpoint pleading her client to the completed crime, not the attempt.




NEW BIA PRECEDENT ON CONTROLLED SUBSTANCES – MATTER OF ROSA, 27 I&N DEC. 228 (BIA 2018) — We’re All Becoming Bit Players In A Continuous Performance Of “The Theater Of The Absurd!”

ROSA- 3919

Matter of ROSA, 27 I&N Dec. 228 (BIA 2018)


(1) In deciding whether a State offense is punishable as a felony under the Federal Controlled Substances Act and is therefore an aggravated felony drug trafficking crime under section 101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2012), adjudicators need not look solely to the provision of the Controlled Substances Act that is most similar to the State statute of conviction.

(2) The respondent’s conviction under section 2C:35-7 of the New Jersey Statutes for possession with intent to distribute cocaine within 1,000 feet of school property is for an aggravated felony drug trafficking crime because his State offense satisfies all of the elements of 21 U.S.C. § 841(a)(1) (2012) and would be punishable as a felony under that provision.

PANEL: BIA Appellate Immigration Judges PAULEY, WENDTLAND, O’CONNOR

OPINION BY: Judge Linda S. Wendtland



“So while I do not disagree with the point made by the majority and the DHS about avoiding absurd results, I unfortunately do not find it to be persuasive. This statement alone is a sad commentary on the state of affairs when it comes to making criminal law determinations in immigration proceedings and is an earnest call for a congressional fix to the mess we currently find ourselves in. See United States v. Fish, 758 F.3d 1, 17–18 (1st Cir. 2014) (collecting cases that call on Congress to “rescue the federal courts from the mire into which . . . [the] ‘categorical approach’ [has] pushed [them]” (quoting Chambers v. United States, 555 U.S. 122, 131–32 (2009) (Alito, J., concurring))); Mathis, 136 S. Ct. at 2258 (Kennedy, J., concurring) (noting the “continued congressional inaction in the face of a system that each year proves more unworkable”).

Finally, it bears noting that the Third Circuit has already found § 860 to be the proper Federal analogue to section 2C:35-7, albeit in an unpublished decision. See Chang-Cruz, 659 F. App’x 114. In that decision, the Government conceded that this was the case, and having lost the divisibility battle there, the DHS now seeks to use § 841 to argue that section 2C:35-7 is categorically an aggravated felony drug trafficking crime. Although I do not disagree with the majority that such an approach is permissible, I do so with reservations over how much more complicated categorical determinations may become for adjudicators who must now decide what is an “appropriate Federal analogue” and consider that analogue, or any permissible combination of such analogues, in discerning whether a State offense is a felony under the Controlled Substances Act. These determinations are difficult enough for an immigration system that is already overburdened. In the words of Justice Alito, “I wish them good luck.” Mathis, 136 S. Ct. at 2268 (Alito, J., dissenting).”


Bottom line:

  • The respondent loses (of course);
  • The law is too complicated; and
  • Judge O’Connor thinks it should be unnecessary to go through all this rigmarole because this is a “bad guy” whom Congress clearly intended to kick out without recourse.

If anyone can explain the legal gibberish in this case further to me in plain English in 25 words or fewer, please do!

I get the point that the law has become too complex. But, this discussion seems to bypass the real problem in cases like this that has been “lost in space.”

How would an unrepresented, detained individual who doesn’t speak English properly defend him or herself in a case like this. The clear answer: they couldn’t, since even the “expert judges” in the Ivory (or Glass) Towers with their teams of cracker-jack law clerks are struggling with this stuff. Therefore, in the absence of counsel, appointed if necessary, these hearings before the Immigration Judges are nothing but judicial farces, theaters of the absurd, that mock due process and fairness and trample our Constitution. Samuel BeckettLuigi Pirandello, Friedrich Dürrenmatt, and friends would be proud of what’s been accomplished in our 21st Century immigration system!

That’s the problem to which both Congress and the Article III Appellate Courts need to wake up before it’s too late. In the meantime, please explain to me just how Sessions’s “pedal faster, schedule more, cut corners” approach to the Immigration Courts is helping to solve this problem?




WELCOME TO BIA-LAND! – Where You Might Be Better Off Committing A Felony Than Concealing It – Matter of Mendez, 27 I&N Dec. 219 (BIA 2018)


Matter of Mendez, 27 I&N Dec. 219 (BIA 2018)


“Misprision of felony in violation of 18 U.S.C. § 4 (2006) is categorically a crime involving moral turpitude. Matter of Robles, 24 I&N Dec. 22 (BIA 2006), reaffirmed. Robles-Urrea v. Holder, 678 F.3d 702 (9th Cir. 2012), followed in jurisdiction only.”


OPINION BY: Judge Roger A. Pauley


Pretty straight forward. There was a so-called “Circuit split.” Given alternative choices, the BIA almost always chooses the interpretation most favorable to the DHS and least favorable to the respondent.

Hence, the respondent loses, the BIA doesn’t “rock the boat,” the Office of Immigration Litigation can defend the most restrictive position in the Courts of Appeals and, if necessary, before the Supremes, Jeff Sessions remains happy, and BIA judges retain their jobs.

The only losers: Due Process, fairness, and the respondent. But, who cares about them anyway? It’s all about maximizing removals.







Matter of Castillo Angulo, 27 I&N Dec. 194 (BIA 2018)


“(1) In removal proceedings arising within the jurisdiction of the United States Courts of Appeals for the Fifth and Ninth Circuits, an alien who was “waved through” a port of entry has established an admission “in any status” within the meaning of section 240A(a)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(a)(2) (2012). Tula-Rubio v. Lynch, 787 F.3d 288 (5th Cir. 2015), and Saldivar v. Sessions, 877 F.3d 812 (9th Cir. 2017), followed in jurisdiction only.

(2) In removal proceedings arising outside the Fifth and Ninth Circuits, to establish continuous residence in the United States for 7 years after having been “admitted in any status” under section 240A(a)(2), an alien must prove that he or she possessed some form of lawful immigration status at the time of admission.”

BIA PANEL:  Appellate Immigration Judges Greer, O’Connor, & Pauley

OPINION BY: Judge Blair O’Connor



“I concur in the result, which the majority only reaches because it acknowledges that the decision of the United States Court of Appeals for the Ninth Circuit in Saldivar v. Sessions, 877 F.3d 812 (9th Cir. 2017), which holds that a wave through constitutes an “admission in any status” for purposes of section 240A(a)(2) of the Act, is binding on the Board since this case arises in that circuit. However, unlike the majority, I conclude that both the Ninth Circuit and the Fifth Circuit, whose similar holding in Tula-Rubio v. Lynch, 787 F.3d 288 (5th Cir. 2015), the Ninth Circuit followed, arrived at the correct result, even though, like the majority, I disagree with some aspects of those courts’ reasoning.

. . . .

I therefore respectfully dissent from the majority’s conclusion otherwise and would find that, in any circuit, an alien is eligible to seek cancellation of removal if he or she establishes an admission via a wave through, even if the alien cannot demonstrate the particular lawful status under which admission was authorized, and even if it is later found that he or she had no lawful status at that time.”


Gee, to me, “any status” means “any” status. But, hey, I’m just an old retired trial judge who in ancient time was Chair of the BIA. What would I know about “modern” concepts of statutory interpretation at the BIA?

For a quasi-judicial body that 1) often gets carried away with obtuse linguistic analysis, and 2) claims to see its role as maintaining nationwide consistency, it seems odd that the BIA has gone out of its way to a) rewrite the statute to its own liking, and 2) create a Circuit conflict where none previously existed.

The best way of understanding it is probably “doing what’s necessary to get to ‘no” for respondents not fortunate enough to be in the 9th or 5th Circuits.

My compliments to Judge Pauley for 1) having the backbone, and 2) caring enough to file a separate opinion that better follows the statutory language, produces a much better practical result, and, not surprisingly,  is much closer to what the only Article III Courts to address this particular issue already have decided.






Matter of OBSHATKO, 27 I&N Dec. 173 (BIA 2017)


“Whether a violation of a protection order renders an alien removable under section 237(a)(2)(E)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(ii) (2012), is not governed by the categorical approach, even if a conviction underlies the charge; instead, an Immigration Judge should consider the probative and reliable evidence regarding what a State court has determined about the alien’s violation. Matter of Strydom, 25 I&N Dec. 507 (BIA 2011), clarified.”




COMMON THREAD: The Respondent loses, even though he prevailed before the Immigration Judge.







Matter of Keeeley, 27 I&N Dec. 146 (BIA 2017)


(1) The term “rape” in section 101(a)(43)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(A) (2012), encompasses an act of vaginal, anal, or oral intercourse, or digital or mechanical penetration, no matter how slight. Perez-Gonzalez v. Holder, 667 F.3d 622 (5th Cir. 2012), not followed.

(2) The term “rape” also requires that the underlying sexual act be committed without consent, which may be shown by a statutory requirement that the victim’s ability to appraise the nature of the conduct was substantially impaired and the offender had a culpable mental state as to such impairment.

PANEL: Appellate Immigration Judges PAULEY, MALPHRUS, and MULLANE

DECISION BY:  Judge Pauley


Perhaps not surprisingly, the BIA chose not to follow the decision of the Fifth Circuit Court of Appeals in Perez-Gonzalez v. Holder, 667 F.3d 622 (5th Cir. 2012) which offered a rape definition slightly more favorable to respondents. The Fifth Circuit generally is known as an very conservative, pro-Government body, hardly the Ninth Circuit or even the Seventh Circuit. But, then, what do Article III Judges know about criminal law and statutory construction?




IMMIGRANT PREVAILS AT BIA ON CIMT – NY Criminally Negligent Homicide Not a Categorical CIMT – Matter Of TAVDIDISHVILI, 27 I&N Dec. 142 (BIA 2017)


Matter Of TAVDIDISHVILI, 27 I&N Dec. 142 (BIA 2017).


“Criminally negligent homicide in violation of section 125.10 of the New York Penal Law is categorically not a crime involving moral turpitude, because it does not require that a perpetrator have a sufficiently culpable mental state.”

BIA PANEL: Appellate Immigration Judges COLE, PAULEY, and WENDTLAND.

OPINION BY: Judge Pauley