Category: Matter of Thomas & Thompson

🤯 “HOW TO SUCCEED IN BUILDING BACKLOG” — Latest BIA Miscue On Retroactivity in 7th Cir. Sure To Generate Re-openings, Remands, & Other Forms Of Backlog Enhancing, Due Process Denying “Aimless Docket Reshuffling!” — Garland’s Inexcusable Mis-Management Of EOIR Is Boiling Over Among Dem Base!

 

From Dan Kowalski @ LexisNexis Immigration Community:

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Daniel M. Kowalski

8 Nov 2022

CA7 on CIMT, Retroactivity: Zaragoza v. Garland

Zaragoza v. Garland

“Dulce Zaragoza, a native and citizen of Mexico and a lawful permanent resident of the United States, pleaded guilty to the Indiana offense of criminal neglect of a dependent after locking her six-year-old son in a closet for six hours. She was sentenced to one year in jail suspended to time served plus 30 days, with the remainder of the sentence to be served on probation. After completing her sentence, she traveled abroad and presented herself for admission when she returned. The Department of Homeland Security (“DHS”) found her inadmissible based on the neglect conviction, which the agency classified as a “crime involving moral turpitude.” 8 U.S.C. § 1182(a)(2)(A)(i)(I). She was placed in removal proceedings. Zaragoza fought removal on several grounds, with her arguments expanding as the proceedings progressed. Before the immigration judge, she argued that the Indiana neglect offense does not qualify as a crime involving moral turpitude. The judge disagreed and entered a removal order, and Zaragoza appealed to the Board of Immigration Appeals (“BIA” or “the Board”). In the meantime, she petitioned the state court to modify her sentence. Her purpose was to bring herself within the so-called “petty offense” exception to inadmissibility, which is available to first-time offenders sentenced to six months or less. Id. § 1182(a)(2)(A)(ii)(II). The state court obliged and reduced her one-year sentence to 179 days. With that order in hand, Zaragoza argued before the BIA that Indiana’s neglect offense is not a crime involving moral turpitude, and regardless, the petty-offense exception applies. The BIA rejected both arguments, agreeing with the immigration judge that the Indiana offense is categorically a crime involving moral turpitude, and further holding that the sentence-modification order was not effective to establish Zaragoza’s eligibility for the petty-offense exception. For the latter conclusion, the Board relied on a recent decision of the Attorney General declaring that state-court sentence modification orders are effective for immigration purposes only if based on a legal defect in the underlying criminal proceeding. Matter of Thomas & Thompson (“Thomas”), 27 I. & N. Dec. 674, 690 (Att’y Gen. 2019). Zaragoza sought reconsideration, this time adding two more arguments: (1) the phrase “crime involving moral turpitude” is unconstitutionally vague; and (2) the Attorney General’s decision in Thomas is impermissibly retroactive as applied to her. The BIA disagreed on both counts. Zaragoza petitioned for review in this court, reprising the entire array of arguments she presented to the Board. We agree with the BIA’s resolution of all issues but one: applying Thomas in Zaragoza’s case is an impermissibly retroactive application of a new rule. We therefore remand to the BIA for further proceedings consistent with this opinion.”

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Commentary from Kevin A. Gregg, ESQ:

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Kevin A. Gregg

• 1st

Partner at Kurzban Kurzban Tetzeli & Pratt P.A. & Host of Immigration Review Podcast

2d • Edited •

2 days ago

Crimmigration attorneys, get your motions ready.

At least in Chicago! Matter of Thomas and Thompson CANNOT be applied retroactively in the Seventh Circuit!

Sentence modifications/clarifications/European vacations obtained pre-T&T and that comply with Matter of Cota Vargas/Song/Estrada must be recognized for immigration purposes!

Also, when will A.G. Garland weigh in on Matter of Thomas and Thompson? The time is now.

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When the BIA starts not with the correct legal concept that retroactivity is disfavored in the law, but rather with “how can we best help DHS Enforcement and/or curry favor and job security from our political ‘handlers’ at DOJ,” “bad things are going to happen.” And, they do, over and over!

There are plenty of well-qualified “practical scholars” out here who understand retroactivity in the immigration context and would get these basic questions right in the first instance without bothering the Courts of Appeals or generating disorder, inconsistency, and unnecessary backlog! Why hasn’t Garland recruited them to be the “New and Improved BIA” that would actually be driven by legal expertise, practical scholarship, due process, and fundamental fairness? The latter are qualities that EOIR and DOJ claims it seeks in Immigration Judges. But, it’s not the reality that practitioners too often actually face in todays dysfunctional, inefficient, and hopelessly backlogged EOIR. 

The public and those subject to substandard judging and often dehumanizing treatment by EOIR are suffering — amazingly, now more than ever! When will Garland do his job and reform his courts to conform to due process, fundamental fairness, best interpretations of law, and best practices? 

The latter desirable qualities, actually necessary for any legitimate judiciary, are certainly NOT descriptive of today’s broken EOIR! Garland and his lieutenants might consider themselves “above the fray!” 

But, my already over-stuffed e-mailbox is “lighting up” with EOIR horror stories from experienced, long-time practitioners who are questioning whether they can continue practicing in the hostile, lawless, “no due process,” “no customer service,” “no common sense,” “blame the victim” environment that Garland has allowed to mushroom, and sometimes even encouraged, at EOIR. 

I mentioned the term “Dedicated Docket” at an Executive Session of a major NGO recently. The anger and disgust that it provoked from those actually “doing the job” of fighting for justice in Garland’s broken system was palpable! 

Why is a Democratic Administration that is, despite beating expectations in the midterms, still hanging on by a thread, inflicting this type of disrespect, pain, and suffering on its own loyal supporters? How will this self-created legal, Constitutional, human rights disaster play out moving toward 2024!

“The EOIR HQ Tower” needs a complete shake-up and replacement of  those who have demonstrated their inability to get the job done with those who can! The latter are out here. But, the worse Garland lets his system get, the harder and most costly (dollars and lives) it will be to fix it!

🇺🇸 Due Process Forever!

PWS

11-11-22

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BARR’S TWO LATEST PRECEDENTS CONTINUE TO ERODE IMMIGRATION JUDGES’ DISCRETION & INDIVIDUALS’ ABILITY TO AVOID DEPORTATION — Matter of Castillo-Perez & Matter of Thomas & Thompson!

Matter of Castillo-Perez: https://www.justice.gov/eoir/page/file/1213196/download

 

Key section:

 

For the reasons set forth below, I affirm the Board’s order. I conclude that, when assessing an alien’s good moral character under INA § 101(f), 8 U.S.C. § 1101(f), evidence of two or more DUI convictions during the relevant period establishes a rebuttable presumption that the alien lacked good moral character during that time. Because the Attorney General may only cancel removal of an alien who has been a person of good moral character during a 10-year period, see INA § 240A(b), 8 U.S.C. § 1229b(b), such evidence also presumptively establishes that the alien is not eligible for that relief. Here, because the evidence of the respondent’s efforts to rehabilitate himself is insufficient to overcome this presumption, the Board correctly vacated the immigration judge’s decision to grant cancellation of removal.

 

Matter of Michael Vernon Thomas & Matter of Joseph Lloyd Thompson: https://www.justice.gov/eoir/page/file/1213201/download

 

Key section:

The INA assigns clear immigration consequences to an alien who has been convicted and sentenced for a state crime, yet the Board has adopted multiple tests that permit state courts to change those results well after the fact. Although a state court may alter a state conviction for appropriate reasons under state law, the state court does not have the authority to make immigration-law determinations. In view of these considerations, I conclude that the Pickering test should apply to state-court orders that modify, clarify, or otherwise alter the term of imprisonment or sentence associated with a state-court conviction. As a result, such alterations will have legal effect for immigration purposes if they are based on a procedural or substantive defect in the underlying criminal proceeding, but not if they are based on reasons unrelated to the merits, such as rehabilitation or immigration hardship. Matter of Cota-Vargas, Matter of Song, and Matter of Estrada must therefore be overruled.

 

Alexei Woltornist

Public Affairs Officer

Department of Justice

Cell: (202)598-5281

Office: (202)514-2016

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Matter of Castillo-Perez effectively precludes most individuals with two (or more) DUIs from getting cancellation of removal. Obviously, the AG perceived this to be a significant problem. I don’t know how many cases like this are actually granted. Perhaps it would allow the BIA and the IJs to decline to reopen more cases if the Respondent could not show prima facie evidence that he or she could overcome the “presumption.”

Matter of Thomas & Thompson restricts a fairly common device used to avoid the harsh immigration consequences of a criminal conviction. Criminal court judges and even prosecutors are often willing to make slight “after the fact” sentence modifications to avoid deportation in sympathetic cases. Under this ruling, that will only work if there is a “non-immigration” reason for the modification — much more difficult to establish.

Taken together these cases are part of a continuing effort by the AGs under Trump to 1) limit the ability of Immigration Judges to grant discretionary relief based on hardship or equities, and 2) make it more difficult for individuals to avoid deportation. It might also allow Immigration Judges to deny more requests for relief summarily, without full hearings to consider all the equities.

To me, neither change seems “astounding” in and of itself. Rather, they are part of a continuum of efforts to restrict discretion and make it more difficult for individuals to avoid deportation based on equities in the U.S. 

Notably, the Trump AGs have never intervened to rule in favor of an individual. All of their certification rulings favor DHS enforcement. 

This is notable in a system where the prosecutor selects, directs, and can fire or reassign the judges. Not surprisingly, the vast majority of published precedents already favor DHS enforcement. Now, the prosecutor apparently intends to systematically overrule or limit those few precedents that have given individuals hope of a favorable resolution of their cases.

PWS

P10-26-19

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