⚖️GARLAND’S BIA IMMEDIATELY “STUFFED” BY AMERICA’S MOST CONSERVATIVE CIRCUIT ON BOGUS ANTI-IMMIGRANT PRECEDENT! — Last Thursday, The BIA “Dissed” The Supremes Again In Arambula-Bravo  — Yesterday, The Fifth Circuit Said “Not So Fast” In Rodriguez v. Garland! — Piecemeal Notice Cannot Be Basis For In Absentia Order!

Kangaroos
“Supremes? What Supremes? We work for Judge Garland @ DOJ, and he’s very, very tolerant of our anti-immigrant, pro-DHS ‘culture,’ and institutionalized poor decision-making over here at ‘his EOIR!’ Our jobs are safe, and that’s all that matters! To hell with ‘the others!’ ‘Jeffie Gonzo’ and ‘Billy the Bigot’ told us to treat migrants like the ‘trespassers’ and ‘scum of the earth’ they really are! It’s not like OUR families were ever migrants!”
https://www.flickr.com/photos/rasputin243/
Creative Commons License

 

Rodriguez v.Garland, 5th Cir., 09-27-21, published

RODRIGUEZ V GARLAND, 5TH ON NIZ

PANEL: Higginbotham, Willett, and Duncan, Circuit Judges.

OPINION: Judge Patrick Higginbotham

KEY QUOTE:

The initial NTA did not contain the time and date of Rodriguez’s hearing. The BIA found that the NTA combined with the subsequent NOH containing the time and place of Rodriguez’s hearing “satisfied the written notice requirements of [8 U.S.C. § 1229(a)],” directly contrary to the Supreme Court’s interpretation of § 1229(a) in Niz-Chavez which made clear that subsequent notices may not cure defects in an initial notice to appear. The BIA applied a “legally erroneous interpretation[].”23

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

Judge Higginbotham was appointed by President Ronald Reagan. Even conservative Article III Judges aren’t as anxious to snub the Supremes as the BIA.

After all, the BIA works for the Attorney General, not the Supremes. So, who cares whether their decisions comply with the rulings of the Article III Courts, so long as their political “handlers” at the DOJ are pleased with the pro-DHS outcome! That’s what happens when a “captive court” is encouraged to view itself as an extension of their “partners” at DHS enforcement, carrying out the political agenda of their DOJ superiors who control their paychecks and their career destiny!

Wow! It took fewer than three business days for Garland’s latest venture into obtuse anti-immigrant decision-making at the BIA, Matter of Arambula-Bravo, to hit a brick wall! In the 5th Circuit, no less! Back in the “old days” of the “Legacy INS,” it was a very bad sign when we couldn’t “sell” a position to the 5th Circuit!

“Courtside” saw this coming a mile away! https://immigrationcourtside.com/2021/09/25/bia-going-for-trifecta-already-rebuked-twice-by-supremes-for-ignoring-statutory-definition-of-notice-to-appear-bia-chooses-to-snub-high-court-again/

Have to wonder if Judge Garland would have been so sanguine with the dissing of the Supremes by the BIA if he had actually become “Justice Garland?” 

As my esteemed colleague Judge “Sir Jeffrey” Chase noted, the position adopted by the 5th Circuit in Rodriguez:

is the same argument we [the “Round Table”] made in our recent amicus brief to the Board – in a published decision, the 5th Cir. granted a PFR and vacated the Board’s decision denying a motion to rescind an in absentia order where there was no proper service due to a defective NTA under Niz-Chavez.

By failing to replace the BIA with better qualified progressive expert judges who will issue correct precedents (even when they might benefit immigrants) and require “best practices” in the now-totally-dysfunctional Immigration Courts, Garland is further building backlog by generating thousands of unnecessary remands and reopenings. How long will it take him to reach the 2 million case mark?

“Bogus dedicated dockets,” gross misuse of the discredited “Title 42” rationale to deny due process, increased use of “expedited removal,” proposals to “rubber stamp” asylum and credible fear denials, badly skewed pro-enforcement interpretations that throw the fate of hundreds of thousands of cases into the Circuits and the Supremes aren’t going to solve the problem!

Never underestimate the adverse effects of bad judging, particularly in a high volume system where incorrect precedents result in wrong decisions in hundreds of cases every day! Conversely, you can’t overestimate the positive potential of progressive expert judges who would get the results correct at the “retail level;” force some badly needed quality control, discipline, and consistency at both EOIR and DHS; and solve problems rather than creating them!

Sadly, Garland doesn’t “get it!” And that will be a continuing unmitigated disaster for our democracy and our justice system! Such a lost opportunity!

Alfred E. Neumann
Has Alfred E. Neumann been “reborn” as Judge Merrick B. Garland? “Not my friends, relatives, or attorney buddies whose lives are being destroyed by my ‘Kangaroo Courts.’ Just ‘the others’ and their ‘scuzzy, unimportant immigration lawyers,’ so who cares, why worry about professionalism, ethics, and due process in Immigration Court?”
PHOTO: Wikipedia Commons

🇺🇸Due Process Forever!

PWS

09-28-21

BIA GOING FOR “TRIFECTA?” — Already Rebuked Twice By Supremes For Ignoring Statutory Definition Of “Notice To Appear,” BIA Chooses To Snub High Court Again — Matter of  Arambula-Bravo

Obviously, THESE are the practical scholar/immigration experts who belong on the BIA:

Kit Johnson
Kit Johnson
Associate Professor of Law
University of Oklahoma Law School
Professor Geoffrey Hoffman
Professor Geoffrey Hoffman
Immigraton Clinic Director
University of Houston Law Center

 

https://lawprofessors.typepad.com/immigration/2021/09/bia-distinguishes-niz-chavez-pereira-find-no-jx-problem-with-nta-lacking-timedate.html

Professor Kit Johnson reports for ImmigrationProf blog:

Thursday, September 23, 2021

BIA Distinguishes Niz-Chavez, Pereira, Finds No Jx Problem With NTA Lacking Time/Date

By Immigration Prof

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The Board of Immigration Appeals has issued a decision in Matter of  Arambula-Bravo, 28 I&N Dec. 388 (BIA 2021). Here is the summary:

(1) A Notice to Appear that does not specify the time and place of a respondent’s initial removal hearing does not deprive the Immigration Judge of jurisdiction over the respondent’s removal proceedings. Pereira v. Sessions, 138 S. Ct. 2105 (2018), and Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), distinguished; Matter of Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018), and Matter of Rosales Vargas and Rosales Rosales, 27 I&N Dec. 745 (BIA 2020), followed.

(2) A Notice to Appear that lacks the time and place of a respondent’s initial removal hearing constitutes a “charging document” as defined in 8 C.F.R. § 1003.13 (2021), and is sufficient to terminate a noncitizen’s grant of parole under 8 C.F.R. § 212.5(e)(2)(i) (2021).

In my 2018 article, Pereira v. Sessions: A Jurisdictional Surprise for Immigration Courts, I reached the exact opposite conclusion.

I am hardly the only one to argue that such an NTA should deprive the court of jurisdiction. Immprof Geoffrey Hoffman (Houston), frequent contributor to this blog, submitted an amicus brief to the BIA on this case arguing that an NTA without time or place information is “defective” under Niz-Chavez and cannot be cured by the later issuance of a Notice of Hearing.

Now the waiting game for SCOTUS intervention begins again. I’m hoping for another scathing opinion by Justice Gorsuch. His Niz-Chavez decision was fire.

-KitJ

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INA section 239(a) defines a Notice to Appear, the document used to initiate a removal proceeding in Immigration Court, as including, among other statutory requirements: “G)(i) The time and place at which the proceedings will be held.” Could not be clearer!

The requirements of section 239(a) are hardly onerous. Indeed, several decades ago, the Government had developed an “interactive scheduling system” that allowed DHS to specify the exact time, place, and date of a respondent’s initial Master Calendar hearing in Immigration Court.

However, rather than expanding and improving that system, DHS and EOIR decided to cut corners to accommodate the “uber enforcement” agendas pushed by Administrations of both parties over the past two decades. Their “haste makes waste, good enough for Government work approach” led them to ignore the requirements for a proper NTA and instead issue “piecemeal notices.” 

This, of course, increased the unnecessary workload for already-stressed, overwhelmed EOIR Immigration Court clerks, resulted in many more defective notices, more unnecessary bogus “failures to appear,” more improper “in absentia removal orders,” more Motions to Reopen those wrongfully issued orders, and more appeals from improper failures to grant such motions. It also sent more of these preliminary matters into the Circuit Courts for judicial review.

Basically, it’s a microcosm of how an unconstitutional, non-independent “wholly owned court system” “pretzels itself” to accommodate DHS enforcement, misconstrues the law, and attempts to legitimize “worst practices” to please its political overlords, thereby creating endless and largely avoidable case backlogs — now at an astounding 1.4 million cases!

Even worse, when the backlogs finally capture public attention and “hit the fan,” EOIR, DHS, and DOJ disingenuously attempt to shift the blame and the consequences for their failures onto the VICTIMS: respondents and their long-suffering, often pro bono, attorneys! The incompetents at EOIR then cut even more corners and issue more bad precedents misconstruing the law in an attempt to cover up their own wrongdoing and that of their political masters. The latter’s understanding of how to run an efficient, due-process oriented, fair and impartial court system could be put in a thimble with space left over!

The vicious cycle of unfairness, injustice, and incompetence at EOIR continues endlessly, toward oblivion.

As Kit cogently points out, better interpretations, ones that complied with the statute and could be tailored to achieve practical solutions were available and actually submitted to the BIA. The BIA, as usual, brushed them off in favor of trying to please DHS and avoid both the statutory language and the Supremes’ clear direction.

So, something that a properly comprised BIA, composed of true progressive immigration experts and practical scholars, could have solved in a legal and practical manner, will undoubtedly head to the Supremes for a third time. We might not know the result for years, during which the BIA’s bad interpretation will generate additional potential backlog as well as unjust removals.

So, our Round Table ⚔️🛡can start perfecting our Arambula-Bravo amicus briefs now!

It’s time for a change at EOIR!

🇺🇸Due Process Forever!

PWS

09-25-21