Matter of E-F-H-L- – immigrationcourtside.com

HON. JEFFREY CHASE: SOME IMMIGRATION JUDGES START PARTICIPATING IN THE SESSIONS/DHS ALL-OUT ATTACK ON DUE PROCESS BY SUBJECTING ASYLUM APPLICANTS TO AN UNAUTHORIZED “SUMMARY JUDGMENT PROCESS” TO DENY ASYLUM WITHOUT A HEARING – The Likely Result Of Yet Another Administration “Haste Makes Waste” Initiative – Massive Denials Of Due Process, Unlawful Removals, Lost Lives, Massive Remands From The “Real” Courts, Further Loss Of Credibility For The Immigration Courts, More Unnecessary Backlogs, Waste Of Taxpayer Funds – Hey, What’s Not To Like About Another Jeff Sessions Bogus White Nationalist Scheme?

https://www.jeffreyschase.com/blog/2018/6/24/are-summary-denials-coming-to-immigration-court

Jun 24 Are Summary Denials Coming to Immigration Court?

An attorney recently reported the following: at a Master Calendar hearing, an immigration judge advised that if on the Individual Hearing date, both the court and the ICE attorney do not believe the respondent is prima facie eligible for asylum based on the written submissions, the judge will deny asylum summarily without hearing testimony. The judge stated that other immigration judges around the country were already entering such summary judgments, in light of recent decisions of the Attorney General.

I have been telling reporters lately that no one decision or policy of the AG, the EOIR Director, or the BIA should be viewed in isolation. Rather, all are pieces in a puzzle. Back in March, in a very unusual decision, Jeff Sessions certified to himself a four-year-old BIA precedent decision while it was administratively closed (and therefore off-calendar) at the immigration judge level, and then vacated the decision for the most convoluted of reasons. What jumped out at me was the fact that the decision, Matter of E-F-H-L-, had held that all asylum applicants had the right to a full hearing on their application without first having to establish prima facie eligibility for such relief. It was pretty clear that Sessions wanted this requirement eliminated.

Let’s look at the timeline of recent developments. On January 4 of this year, Sessions certified to himself the case of Matter of Castro-Tum, in which he asked whether immigration judges and the BIA should continue to have the right to administratively close cases, a useful and common docket management tool. On January 19, the BIA published its decision in Matter of W-Y-C- & H-O-B-, in which it required asylum applicants to clearly delineate their claimed particular social group before the immigration judge (an extremely complicated task beyond the ability of most unrepresented applicants), and stated that the BIA will not consider reformulations of the social group on appeal. The decision was written by Board Member Garry Malphrus, a hard-line Republican who was a participant in the “Brooks Brother Riot” that disrupted the Florida ballot recount following the 2000 Presidential election.

On March 5, Sessions vacated Matter of E-F-H-L-. Two days later, on March 7, Sessions certified to himself an immigration judge’s decision in Matter of A-B-, engaging in procedural irregularity in taking the case from the BIA before it could rule on the matter, and then completely transforming the issues presented in the case, suddenly challenging whether anyone fearing private criminal actors could qualify for asylum.

On March 22, Sessions certified to himself Matter of L-A-B-R- et al., to determine under what circumstances immigration judges may grant continuances to respondents in removal proceedings. Although this decision is still pending, immigration judges are already having to defend their decisions to grant continuances to their supervisors at the instigation of the EOIR Director’s Office, which is tracking all IJ continuances.

On March 30, EOIR issued a memo stating that immigration judges would be subjected to performance metrics, or quotas, requiring them to complete 700 cases per year, 95 percent at the first scheduled individual hearing, and further requiring that no more than 15 percent of their decisions be remanded. On May 17, Sessions decided Castro-Tum in the negative, stripping judges of the ability to manage their own dockets by administratively closing worthy cases.

On May 31, Castro-Tum’s case was on the Master Calendar of Immigration Judge Steven Morley. Instead of ordering Castro-Tum deported in absentia that day, the judge continued the proceedings to allow an interested attorney to brief him on the issue of whether Castro-Tum received proper notice of the hearing. Soon thereafter, the case was removed from Judge Morley’s docket and reassigned to a management-level immigration judge who is far less likely to exercise such judicial independence.

On June 11, Sessions decided Matter of A-B-, vacating the BIA’s 2014 decision recognizing the ability of victims of domestic violence to qualify for asylum as members of a particular social group. In that decision, Sessions included headnote 4: “If an asylum application is fatally flawed in one respect, an immigration judge or the Board need not examine the remaining elements of the asylum claim.” The case was intentionally issued on the first day of the Immigration Judges training conference, at which the need to complete more cases in less time was a repeatedly emphasized.

So in summary, within the past few months, the immigration judges have been warned that their livelihood will depend on their completing large numbers of cases, without the ability to grant continuances or administratively close cases. They have had the need to hold a full asylum hearing stripped away, while at the same time, having pointed out to them several ways to quickly dispose of an asylum claim that until weeks ago, would have been clearly grantable under settled case law.

So where does all this leave the individual judges? There has been much discussion lately of EOIR’s improper politicized hirings of immigration judges. I feel that the above developments have created something of a Rorschach test for determining an immigration judge’s ideology.

The judges that conclude from the above the best practice is to summarily deny asylum without testimony are exactly the type of judges the present administration wants on the bench. They can find a “fatal flaw” in the claim – either in the formulation (or lack thereof) of the particular social group, or in the lack of preliminary documentation as to the persecutor’s motive, the government’s inability to protect, or the unreasonableness of internal relocation, and simply deny the right to a hearing. It should be noted that these issues are often resolved by the detailed testimony offered at a full merits hearing, which is the purpose of holding such hearings in the first place.

On the other hand, more thoughtful, liberal judges will find that in light of the above developments, they must afford more time for asylum claims based on domestic violence, gang threats, or other claims involving non-governmental actors. They will conference these cases, and hear detailed testimony from the respondent, country experts, and other witnesses on the particular points raised by Sessions in Matter of A-B-. They may consider alternative theories of these cases based on political opinion or religion. They are likely to take the time to craft thoughtful, detailed decisions. And in doing so, they will find it extremely difficult to meet the completion quotas set out by the agency with Sessions’ blessing. They may also have their decisions remanded by the conservative BIA, whose leadership is particularly fearful of angering its superiors in light of the 2003 purge of liberal BIA members by then-Attorney General John Ashcroft. The removal of Castro-Tum’s case from the docket of Judge Morley is clearly a warning that the agency does not wish for judges to behave as independent and impartial adjudicators, but rather to act in lockstep with the agency’s enforcement agenda.

There is another very significant issue: most asylum claims also apply for protection under Article III of the U.N. Convention Against Torture. Unlike asylum, “CAT” relief is mandatory, and as it does not require a nexus to a protected ground, it is unaffected by the AG’s holding in A-B-. So won’t those judges pondering summary dismissal still have to hold full hearings on CAT protection? It would seem that a refusal to hold a full CAT hearing would result in a remand, if not from the BIA, than at the circuit court level.

Copyright 2018 Jeffrey S. Chase. All rights reserved.

JEFF CHASE

Four Easy, Low Budget, Steps To A Better, Fairer, & More Efficient U.S. Immigration Court System:

Remove Jeff Sessions and all other politicos from control.
Restore Immigration Judges’ authority to “administratively close” cases when necessary to get them off the docket so that relief can be pursued outside the Immigration Court system.
Give Immigration Judges authority to set and control their own dockets, working with Court Administrators and attorneys from both sides (rather than having DHS enforcement policies essentially “drive the docket” as is now the case) to:
- Schedule cases in a manner that insures fair and reasonable access to pro bono counsel for everyone prior to the first Master Calendar;
- Schedule cases so that pleadings can be taken and applications filed at the first Master Calendar (or the first Master Calendar after representation is obtained);
- Schedule Individual Hearings in a manner that will maximize the chances of “completion at the first Individual Hearing” while minimizing “resets” of Individual Hearing cases.
Establish a Merit Selection hiring system for Immigration Judges overseen by the U.S. Circuit Court in the jurisdiction where that Immigration Judge would sit, or in the case of the BIA Appellate Immigration Judges, by the U.S. Supreme Court.

No, it wouldn’t overnight eliminate the backlog (which has grown up over many years of horrible mismanagement by the DOJ under Administrations of both parties). But, it certainly would give the Immigration Courts a much better chance of reducing the backlog in a fair manner over time. Just that, as opposed to the Trump Administration’s “maximize unfairness, minimize Due Process, maximize backlogs, shift blame, waste money and resources” policies would be a huge improvement at no additional costs over what it now takes to run a system “designed, built, and operated to fail.”

PWS

06-25-48

HON. JEFFREY CHASE ON MATTER OF E-F-H-L- — SESSIONS’S OUTRAGEOUS ATTTACK ON DUE PROCESS AND RIGHTS OF VULNERABLE ASYLUM SEEKERS SHOWS WHY COURT SYSTEM CONTROLLED BY BIASED A.G. IS A FARCE!

https://www.jeffreyschase.com/blog/2018/3/10/the-ags-strange-decision-in-matter-of-e-f-h-l-

Mar 10 The AG’s Strange Decision in Matter of E-F-H-L-

On Monday, the Attorney General’s strange decision in Matter of E-F-H-L- had many of us talking well into the night. As background, the BIA published its precedent decision in Matter of E-F-H-L- in 2014. The case involved an immigration judge’s decision that an asylum applicant’s claim was not deserving of a merits hearing. Instead of a hearing at which he would have had the opportunity to testify, present witnesses, file documentary evidence, and present legal arguments, the immigration judge simply denied the case on the written application alone. On appeal, the BIA reached the obvious conclusion that all asylum applicants merit the right to a hearing, and remanded the record back to the immigration judge for that purpose.

Four years later (i.e. this past Monday), Attorney General Jeff Sessions unexpectedly inserted himself into the matter. It seems that by the time the record arrived back in immigration court, the respondent was now eligible to obtain lawful permanent residence based on a relative petition. As such petition is a far more certain and direct route to legal status, and carries greater benefits, the respondent followed the common practice of withdrawing his application for asylum in order to proceed on the visa petition alone. Furthermore, because USCIS (and not the immigration judge) has the authority to decide the visa petition, both the respondent and DHS agreed to administratively close proceedings in order to allow USCIS to adjudicate the petition (which often takes some time) without either having such effort delayed by removal proceedings, or wasting the court’s valuable time by holding unnecessary status-check hearings. Ordinarily, once the visa petition is decided one way or the other, the parties will move the immigration judge to recalendar the case.

However, such cooperation, efficiency, and consideration is apparently not to the AG’s liking. On Monday, he determined that because the matter was remanded for an asylum hearing, but the asylum application was subsequently withdrawn, the Board’s precedent guaranteeing asylum applicants the right to a hearing should for some reason be vacated. He further ordered an end to administrative closure, and that the case be placed back on the IJ’s active hearing calendar, where time and taxpayer money can be wasted on unnecessary hearings, which could possibly delay USCIS in adjudicating the visa petition.

So what does all of this mean? First, Sessions has now done away with a Board precedent decision entitling all asylum applicants to a full hearing. The Board’s original decision in E-F-H-L- cited regulations, statute, the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, case law, and common sense in reaching such conclusion. The fact that years later, the respondent became eligible for another form of relief in no way negates the Board’s reasoned conclusion.

Additionally, the AG’s action might have a chilling effect on immigration judges. In the past, Attorneys General have certified cases to themselves where they disagreed with a decision reached by the Board. However, I don’t believe an AG has ever before followed a case years later all the way down to the immigration court level and chosen to certify a case because of an action taken by the immigration judge in the normal course of proceedings. Administratively closing a proceeding to allow USCIS to adjudicate a visa petition is standard procedure – DHS agreed to such action. Yet now, immigration judges have to worry that the AG is watching. How quickly will judges administratively close under the same circumstances, even if everyone agrees it is the correct thing to do?

Furthermore, as it is extremely unlikely that Sessions is reviewing every decision every immigration judge is making, someone – in DHS? In EOIR? – is signalling the AG’s office of cases such as this one. Although the immigration courts and BIA are supposed to be neutral, the playing field is not level when the respondent must appeal an unfavorable to the federal circuit courts, whereas DHS can simply ask the Attorney General to reverse a decision of which it disapproves.

Copyright 2017 Jeffrey S. Chase. All rights reserved.

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How many innocent, vulnerable individuals will die or have their lives ruined by the travesty of justice unfolding under Jeff Sessions before Congress takes the necessary action to free the U.S. Immigration Courts from blatant and unwarranted political interference in decision-making?

We need an independent Article I U.S. Immigration Court now!

PWS

03-12-18

TAL @ CNN TELLS ALL ON HOW SESSIONS IS USING HIS AUTHORITY OVER THE SCREWED UP U.S. IMMIGRATION COURTS TO ATTACK DUE PROCESS & TARGET VULNERABLE ASYLUM SEEKERS — One Of My Quotes: “I think due process is under huge attack in the immigration courts. Every once in a while Sessions says something about due process, but his actions say something quite different.”

https://www.cnn.com/2018/03/10/politics/sessions-immigration-appeals-decision/index.html

Sessions tests limits of immigration powers with asylum moves
Tal Kopan
By Tal Kopan, CNN
Updated 8:01 AM ET, Sat March 10, 2018

Washington (CNN)The US immigration courts are set up to give the attorney general substantial power to almost single-handedly direct how immigration law is interpreted in this country — and Jeff Sessions is embracing that authority.

Sessions quietly moved this week to adjust the way asylum cases are decided in the immigration courts, an effort that has the potential to test the limits of the attorney general’s power to dictate whether immigrants are allowed to enter and stay in the US and, immigration advocates fear, could make it much harder for would-be asylees to make their cases to stay here.
Sessions used a lesser-known authority this week to refer to himself two decisions from the Board of Immigration Appeals, the appellate level of the immigration courts. Both deal with asylum claims — the right of immigrants who are at the border or in the US to stay based on fear of persecution back home.

In one case, Sessions reached into the Board of Immigration Appeals archives and overturned a ruling from 2014 — a precedent-setting decision that all asylum cases are entitled to a hearing before their claims can be rejected. In the other, Sessions is asking for briefs on an unpublished opinion as to how much the threat of being the victim of a crime can qualify for asylum. The latter has groups puzzled and concerned, as the underlying case remains confidential, per the Justice Department, and thus the potential implications are harder to discern. Experts suspect the interest has to do with whether fear of gang violence — a major issue in Central America — can support asylum claims.
A Justice official would say only on the latter case that the department is considering the issue due to a “lack of clarity” in the court system on the subject. On the former, spokesman Devin O’Malley said the Board of Immigration Appeals’ 2014 holding “added unnecessary cases to the dockets of immigration judges who are working hard to reduce an already large immigration court backlog.”
Tightening asylum
Sessions referring the cases to himself follows other efforts during his tenure to influence the courts, the Justice Department says, in an effort to make them quicker and more efficient. In addition to expanding the number of Board of Immigration Appeals judges and hiring immigration judges at all levels at a rapid clip, the Justice Department has rolled out guidance and policies to try to move cases more quickly through the system, including possible performance measures that have the judges’ union concerned they could be evaluated on the number of closed cases.

“What is he up to? That would be speculation to say, but definitely there have been moves in the name of efficiency that, if not implemented correctly, could jeopardize due process,” said Rená Cutlip-Mason, until last year a Justice Department immigration courts official and now a leader at the Tahirih Justice Center, a nonprofit that supports immigrant women and girls fleeing violence.
“I think it’s important that the courts balance efficiencies with due process, and any efforts that are made, I think, need to be made with that in mind,” she added.
The Board of Immigration Appeals decisions could allow Sessions to make it much harder to seek asylum in the US.
Asylum is a favorite target of immigration hardliners, who argue that because of the years-long backlog to hear cases, immigrants are coached to make asylum claims for what’s billed as a guaranteed free pass to stay in the country illegally.
Advocates, however, say the vast majority of asylum claims are legitimate and that trying to stack the decks against immigrants fleeing dangerous situations is immoral and contrary to international law. Making the process quicker, they argue, makes it harder for asylum seekers — who are often traumatized, unfamiliar with English and US law, and may not have advanced education — to secure legal representation to help make their cases. The immigration courts allow immigrants to have counsel but no legal assistance is provided by the government, unlike in criminal courts.
Reshaping the immigration courts
Beyond asylum, Sessions’ efforts could have far-reaching implications for the entire immigration system, and illustrate the unique nature of the immigration court system, which gives him near singular authority to interpret immigration laws.
Immigration cases are heard outside of the broader federal court system. The immigration courts operate as the trial- or district-level equivalent and the Board of Immigration Appeals serves as the appellate- or circuit court-level. Both are staffed with judges selected by the attorney general, who do not require any third-party confirmation.
How Trump changed the rules to arrest more non-criminal immigrants
How Trump changed the rules to arrest more non-criminal immigrants
In this system, the attorney general him or herself sits at the Supreme Court’s level, with even more authority than the high court to handpick decisions. The attorney general has the authority to refer any Board of Immigration Appeals decision to his or her office for review, and can single-handedly overturn decisions and set interpretations of immigration law that become precedent followed by the immigration courts.
The power is not absolute — immigrants can appeal their cases to the federal circuit courts, and at times those courts and, eventually, the Supreme Court will overrule immigration courts’ or Justice Department decisions. That’s especially true when cases deal with constitutional rights, said former Obama administration Justice Department immigration official Leon Fresco. Fresco added that the federal courts’ deference to the immigration courts’ interpretation of the law has decreased in the past 10 years, though that could change as more of the President’s chosen judges are added to the bench.
But Sessions could be on track to test the limits of his power, and the moves might set up further intense litigation on the subject.
“From what I can see, Sessions is really testing how far those powers really go,” said Cutlip-Mason. “The fact that the attorney general can have this much power is a very interesting way that the system’s been set up.”
Retired immigration Judge Paul Wickham Schmidt, who served for years in federal immigration agencies and the immigration courts, said that to say the immigration courts are full due process is “sort of a bait and switch.” He says despite the presentation of the courts’ decisions externally, the message to immigration judges internally is that they work for the attorney general.
“I think due process is under huge attack in the immigration courts. Every once in a while Sessions says something about due process, but his actions say something quite different.”

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The idea that the U.S. Immigration Courts can fairly adjudicate asylum cases and provide Due Process to migrants with Jeff Sessions in charge is a bad joke.

America needs an independent Article I Immigration Court.

Harm to the most vulnerable among us is harm to all of us.

PWS

03-11–17

ANA COMPOY @ QUARTZ — WHILE YOU WERE SLEEPING, JEFF SESSIONS WAS HARD AT WORK DISMANTLING DUE PROCESS IN THE AMERICAN JUSTICE SYSTEM — We’re Headed For a Monumental Train Wreck In The “REAL” Article III Courts As Sessions Tries To Force “Kangaroo Court” Work Product Down Their Throats (Again) — I’m Quoted In This Article

https://qz.com/1223294/jeff-sessions-is-quietly-remaking-the-us-immigration-system/

It’s been a busy week for Jeff Sessions. The US attorney general is deploying his broad powers to remake the US’s immigration system instead of waiting for Congress to pass legislation.
Late Tuesday, he filed a lawsuit against the state of California, for its policies limiting cooperation between state officers and federal immigration agents. “Federal law is the supreme law of the land,” he said in a speech in Sacramento on Wednesday.
Far more quietly, on Monday, Sessions took the unusual step of digging up an old legal decision that affirmed asylum-seekers’ right to a make their case in court—and cancelled it. That little-noticed move has the potential of doing more to further Trump’s efforts to deport undocumented immigrants than his attack on so-called sanctuary jurisdictions like California.

Sessions’s choice to revisit the four-year-old case on Monday was not explained in his three-paragraph announcement. A Justice Department spokesperson tells Quartz that the decision which Session overruled had “added unnecessary cases to the dockets of immigration judges, who are working hard to reduce an already large immigration court backlog.”
The mountain of pending immigration cases, which now stands at nearly 670,000, has emerged as a major bottleneck for Trump’s administration. Regardless of their legal status, many immigrants are entitled to a day in court under the law. With US immigration courts chronically understaffed, that can take years. Many applications will likely be processed more quickly—and denied—if asylum-seekers aren’t given the chance to argue their case.
The Matter of E-F-H-L

As head of the Department of Justice, Sessions oversees the country’s immigration courts, and the Board of Immigration Appeals (BIA,) where parties can contest immigration judge decisions. Unlike federal or state courts, the immigration court system is not part of an independent judicial branch, but embedded within a president’s administration.

Critics—including many immigration judges—say that setup makes the court system vulnerable to political interference, and there’s evidence that both Democratic and Republican administrations have done that to further their goals.
Among the attorney general’s powers is the ability to single-handedly overwrite any decisions by the BIA, as Sessions did on Monday. The decision he is zeroing in on is related to a case dubbed “Matter of E-F-H-L,” after the initials of the person who brought it to the appellate body. E-F-H-L, a Honduran immigrant, requested asylum. He appeared before an immigration court, but didn’t get a chance to testify because the judge determined E-F-H-L had no chance of getting asylum based on his application.
E-F-H-L appealed the decision to the BIA, which found that the judge had dismissed the case prematurely. An asylum applicant, it said in its decision, “is entitled to a hearing on the merits of the applications, including an opportunity to provide oral testimony and other evidence.” By striking it, Sessions is signaling that giving asylum seekers that chance is no longer required.
Paul Schmidt, a former immigration judge, says it’s important to hear out asylum applicants even if their case doesn’t look very solid on paper. Many of them—around 20% whose cases were decided in fiscal 2017—don’t have a lawyer, and are not familiar with the kind of information that should be included in the application. Others don’t even speak English. “You can’t always tell how the case is coming out just by looking at the application,” he said.
But another retired immigration judge, Andrew Arthur, welcomed the apparent change. “Given the fact that an asylum merits case can take anywhere between two hours and several days, this authority will allow those judges to streamline their dockets and complete more cases in a timely manner,” he wrote in a post for the Center for Immigration Studies, a think tank that advocates for reducing undocumented immigration.
Sessions’s decision also appears to target the asylum system in particular, which he’s said is being gamed by people with false claims. The precedent it sets is bound to make it more difficult for asylum seekers to make their case.
Administrative closure

Sessions’s sudden interest in E-F-H-L also appears to be related to a tool immigration judges often use referred to as “administrative closure.” That’s when a judge decides to put a case on the back burner instead of immediately deciding whether a person can stay in the US or should be deported.
There are several reasons why judges might delay a case’s decision. Sometimes rescheduling helps them organize their crowded docket; other times an immigrant may be in the middle of a visa application with US Citizen and Immigration Services, in which case it makes sense to wait until that process is completed, says Lenni Benson, a professor at New York Law School.
That appears to have been E-F-H-L’s case. In its decision, the BIA ordered the judge to give E-F-H-L a proper hearing, but by that time, he had applied for a family-based visa and didn’t want to follow through on his asylum claim. So the judge put the case in administrative closure. In his Monday decision, Sessions argued that since the immigrant is no longer applying for asylum, his case should be put back on the docket and resolved.
It seems odd that the head of the Justice Department would make time in his busy schedule to single out an obscure four-year-old case. But Benson says it fits within a broader effort to remove judges’ ability to put a case on hold.
Earlier this year, Sessions used his authority to pluck another case, this one involving a Guatemalan minor, to question the use of administrative closure. He is currently asking for input before taking any action, however. (Several groups, including the Safe Passage Project, a non-profit where Benson runs a program to train pro bono lawyers to represent immigrant youth, have filed a brief advocating for Sessions to keep the practice.)
If he doesn’t, the group of affected immigrants would be much broader than just asylum seekers. The use of administrative closure expanded during the Obama presidency. Because that administration’s focus was on criminals, the cases of many undocumented immigrants with a clean record became lower priorities. Administrative closure essentially took those immigrants off the list of deportation targets, even if their legal status remained unchanged.
The Trump administration, however, has made it clear it’s going after everyone who is in the country illegally. With efforts to change immigration law stalled in Congress, Sessions appears to be doing everything he can administratively to carry out Donald Trump’s vision.

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As Judge Arthur acknowledges, a “real” Due Process asylum merits hearing takes from two hours to two days — a big deal. So, his solution is to eliminate the hearing and thereby the respondent’s only chance to fully present her or his case.

Even if the respondent loses before the Immigration Judge, he or she is entitled to an appeal to the BIA and review in the Court of Appeals. Sometimes the BIA and more often the Circuit Courts disagree with the legal standards applied by the Immigration Judge. How does a respondent make a showing of what evidence supports his or her claim if not allowed to testify on that claim?

Haste makes waste. During the Ashcroft regime, there DOJ also attempted to short-circuit Due Process by “streamlining” cases, primarily at the BIA level. The result, as I have noted before, was a tremendous mess in the Circuit Courts, as court after court found that the records sent to them for review were rife with legal errors, incomplete, inadequate, or all three.

The result was tons of remands that essentially tied up large portions of the Federal Court System as well as the DOJ on cases that were “Not Quite Ready For Prime Time.” However, many individuals who did not have the resources to appeal their cases all the way to the Circuit Courts were illegally removed from the US without receiving the fair hearings guaranteed by statute or the Due Process guaranteed by our Constitution.

Sessions, with the encouragement of folks like Judge Arthur, seems to be determined to repeat this grotesque abuse of American justice. However, this time there is a “New Due Process Army” out there with some of the top legal minds in the country prepared to fight to stop Sessions and his cohorts from violating the Constitution, our statutes, our values, and the rights of the most vulnerable among us.

Harm to one is harm to all!

PWS

05-08-18

HON. LORY DIANA ROSENBERG COMMENTS ON AG’S DECISION IN MATTER OF E-F-H-L-!

Paul (and all) – Here is my preliminary response to your Courtside post, which you may publish:

The AG may be motivated by any number of explanations, as Immigration Courtside thoughtfully suggests. Nevertheless, the AG’s cryptic and unreasoned ruling will predictably engender more litigation and take up more court time than arguably may be saved by denying all asylum seekers access to the due process protections codified in the statute and regulations, and reiterated in numerous currently standing BIA precedents and federal circuit court decisions.

First, he vacated a 4 year old precedent decision of the Board of Immigration Appeals, an action that should not be taken lightly. Cf. Matter of E-F-H-L- 26 I&N Dec. 319 (BIA 2014)(remanding with instructions to honor the guarantee iof a full evidentiary hearing on an asylum claim). The AG contends that “[b]ecause the application for relief which served as the predicate for the evidentiary hearing required by the Board has been withdrawn with prejudice, the Board’s decision is effectively mooted.” Matter of E-F-H-L-, 27 I&N Dec. 226 (A.G. 2018). To the contrary, it is worth noting that, historically, many of the Board’s precedent decisions, which have been rendered moot by federal circuit court reversals or remands, have nonetheless remained in force and served as precedent in all cases other than that of the named respondent.

Assuming the AG’s decision was more than a knee-jerk, irrational, result-oriented response to an IJ’s administrative close order, but a decision fit for an Attorney General, he is expected to have read the Board’s reasoning in reaching the outcome it reached in E-F-H-L- (BIA). The Board plainly recognized the applicability of the statutory provisions that guarantee “a reasonable opportunity to examine the evidence against the alien, to present evidence on the alien’s own behalf, and to cross-examine witnesses presented by the Government.” See section 240(b)(4)(B) of the Act, 8 U.S.C. § 1229a(b) (4)(B)(2012)(governing procedures in removal proceedings). In contrast, the AG’s opinion contains no reasoning what so ever and reveals no effort to respect the terms of the statute, much less to distinguish them in any way.

Second, the Board’s decision in E-F-H-L- also cited to governing ”regulations implementing these statutory provisions in the context of asylum and withholding of removal applications,” which provide that,

such applications for relief filed with the Immigration Court will be decided “after an evidentiary hearing to resolve factual issues in dispute,” 8 C.F.R. § 1240.11(c)(3) (2013).

such an evidentiary hearing will entail the respondent “shall be examined under oath on his or her application and may present evidence and witnesses in his or her own behalf,” 8 C.F.R. § 1240.11(c)(3)(iii).

such regulations also apply to applications for withholding or deferral of removal under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (citation omitted).

The Board specifically recognized that “[t]hese regulations clearly give the Immigration Judge ‘the authority . . . to properly control the scope of any evidentiary hearing,’ 8 C.F.R. § 1240.11(c)(3)(ii) . . .” and to discontinue or limit an evidentiary hearing “in the interests of efficiency, including by limiting testimony and focusing issues.” Nonetheless, the Board ruled in E-F-H-L- that, at a minimum, there must be an evidentiary hearing, which includes “an opportunity for the respondent to present evidence and witnesses in his or her own behalf.” See 8 C.F.R. § 1240.11(c)(3). In contrast, the AG’s opinion offers no colorable justification for abrogating these regulations, which remain in force, making his action in vacating the Board’s precedent in E-F-H-L- ultra vires.

Third, the Board’s decision refers to numerous Board precedent decisions standing for the principles elucidated concerning the need for taking oral testimony and for a meaningful evidentiary hearing in adjudicating asylum applications. See e.g., Matter of Fefe, 20 I&N Dec. 116, 118 (BIA 1989); Matter of Mogharrabi, 19 I&N Dec. 439, 445 (BIA 1987); Matter of Interiano-Rosa, 25 I&N Dec. 264, 266 (BIA 2010); cf. Matter of Ruiz, 20 I&N Dec. 91, 93 (BIA 1989) (holding that in absentia proceedings should have been reopened once the alien established reasonable cause for his failure to appear, because he retained the right to present his asylum claim at a full evidentiary hearing, regardless of whether prima facie eligibility for relief had been shown).Matter of C-B-, 25 I&N Dec. 888, 890−91 (BIA 2012);

Matter of A-S-, 21 I&N Dec. 1106 (BIA 1998). No matter what the Attorney General’s vacation of the Board’s E-F-H-L- precedent is read to mean, the AG fails to indicate that any of these other Board precedents governing evidentiary hearings are disturbed or no longer in effect and they remain in force.

What is more, the Board’s decision recognized that numerous federal courts of appeal nationwide have endorsed and upheld the statutory and regulatory promise of a full and fair evidentiary hearing. See e.g., Litvinov v. Holder, 605 F.3d 548, 555−56 (8th Cir. 2010); Hoxha v. Gonzales, 446 F.3d 210, 214, 217−18 (1st Cir. 2006); Arulampalam v. Ashcroft, 353 F.3d 679, 688 (9th Cir. 2003). See also Sankoh v. Mukasey, 539 F.3d 456, 467 (7th Cir. 2008); Islam v. Gonzales, 469 F.3d 53, 55 (2d Cir. 2006); Mekhoukh v. Ashcroft, 358 F.3d 118, 129 & n.14 (1st Cir. 2004); cf. Oshodi v. Holder, 729 F.3d 883, 889−93 (9th Cir. 2013) (en banc) (holding that an alien’s Fifth Amendment due process right to a full and fair hearing, which includes the opportunity to present evidence and testify on one’s behalf, was violated where the Immigration Judge denied relief solely on an adverse credibility finding after refusing to allow the alien to testify to the contents of his applications). Notably, the AG’s decision vacating E-F-H-L- does not trigger Brand X authority such that the rulings of these federal courts are supplanted or no longer control administrative hearings taking place within the jurisdiction of those courts.

Accordingly, for reasons of statutory, regulatory, and administrative precedential authority, and reasons of federal acquiescence, the AG’s vacation of Matter of E-F-H-L has no impact on the right to an evidentiary hearing on an asylum application. By the AG’s own admission in the case vacated, upon remand, the respondent had withdrawn his asylum application with prejudice in favor of administrative closure to permit an I-130 petition to be adjudicated. Thus, the AG’s ruling vacating E-F-H-L- cannot stand for any principled holding with respect to the right to an evidentiary hearing in asylum cases.

In fact, the IJ’s order of administrative closure of the removal hearing, while allowing USCIS to engage in a timely adjudication of a petition that ultimately might confer lawful status on the respondent, had the mutually beneficial effect of freeing up the court’s time to attend to its heavily backlogged docket. Upon recalendaring in the instant case, the respondent may wish to challenge his previous “withdrawal with prejudice” and seek to re-raise his asylum claim on due process grounds.

Moreover, in light of the AG’s decision, respondents in general would be well-advised to exercise their statutory and regulatory rights to a full evidentiary hearing in their asylum claims, notwithstanding the potential availability of other forms of relief. Likewise, attorneys would be well-advised to consider their obligations in relation to Matter of Lozada, before counseling respondents to withdraw viable applications. The AG’s decision sends a clear message that notwithstanding their best intentions, IJs intentions to fairly resolve removal hearings may be disrupted without notice.

Beyond inefficiently and ineffectively usurping the IJ’s authority to control his or her docket, it is unclear just what the AG intended to accomplish. We are left, perhaps, with much “sound and fury, signifying nothing.” Shakespeare, Macbeth Act 5, scene 5.

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I agree with Lory’s analysis.

Sessions doesn’t do anything without a reason.

We know that:

1) He falsely claims that asylum fraud is a primary contributing factor to the presence of 11 million undocumented individuals. (It isn’t! The vast bulk of the “11 million” were never in the asylum system. I didn’t do the math, but I doubt that there have been anything approaching 11 million asylum applications since the enactment of the “Refuge Act of 1980. While there no doubt have been documented instances of asylum fraud, they would account for only an infinitesimally small portion of the 11 million — mostly law-abiding and productive — undocumented residents trashed by Sessions. Moreover, those engaged in asylum fraud often are eventually exposed and removed and/or jailed).

2) He appears to want to eliminate or severely limit administrative closing which has helped control and rationalize Immigration Court dockets.

3) He wants to dishonestly shift the blame for the backlog from the DOJ which is responsible for “Aimless Docket Reshuffling” over several Administrations to the private bar.

4) He is opposed to prosecutorial discretion and prioritization which are the foundation of all other functioning parts of the U.S. justice system.

5) He has no respect for immigrants (legal or undocumented), our Constitution, the law, or any judge who disagrees with his extreme right-wing xenophobic views.

All of this spells big trouble for the already failing U.S. Immigration Court System and lots of wasteful, additional litigation to vindicate migrants’ statutory and Constitutional rights.

Go New Due Process Army!

PWS

03-07-17

SESSIONS “GOES DEEP” TO UNDERMINE DUE PROCESS! — Matter of E-F-H-L-, 27 I&N Dec. 226 (A.G. 2018)!

Here is the AG decision:

E-F-H-L-AG

And here’s the original BIA precedent he vacated:

E-F-H-L-2014

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Sessions, on his own initiative, reaches back four years to vacate the BIA’s precedent decision Matter of E-F-H-L-, 26 I&N Dec. 319 (BIA 2014). That case held that an asylum or withholding applicant is entitled to a full hearing on his or her application. That hearing includes a chance to testify and present evidence to the Immigration Judge. The respondent is not required to present a “prima facie case” for an asylum grant to get a full hearing.

The “original” case had since been closed for I-130 adjudication, after the respondent withdrew his I-589 with prejudice. Sessions ordered that the case be restored to the Immigration Court’s “active” docket and set for a hearing.

Session’s decision was cryptic — without any explanation of why he chose this case and what he hoped to accomplish. However, a number of “preliminary theories” have surfaced, none of them good news for asylum seekers:

Sessions wants to do away with full hearings for asylum seekers and establish some type of “summary dismissal without hearing” process for those who fail to establish a “prima facie case” for asylum or withholding;
Sessions is using this case to attack administrative closing as a prelude to eliminating or severely restricting the Immigration Judges’ authority to administratively close cases in Matter of Castro-Tum;
Sessions wants to send a message to Immigration Judges that every administrative closing will be subject to potential review and reversal from “on high,” with potential “career limiting” consequences for the Judges, thereby discouraging administrative closing;
Sessions wishes to illustrate and eliminate the potential for lawyers to use “weak” asylum claims that they subsequently withdraw to manipulate the system to gain time to apply for other relief;
Sessions wants to establish that an Immigration Judge’s authority upon BIA remand is limited to the “four corners” of the BIA’s remand order and does not allow the respondent to seek or raise other remedies.
All five of the preceding.

PWS

03-06-18

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