Board of Immigration Appeals (“BIA”) – Page 119

NEW FROM 4TH CIRCUIT: Court Reviews Expedited Removal, Finds VA Statutory Burglary “Not Divisible” — CASTENDET-LEWIS v. SESSIONS!

http://www.ca4.uscourts.gov/Opinions/Published/152484.P.pdf

PANEL:

GREGORY, Chief Judge, KING, Circuit Judge, and DAVIS, Senior Circuit Judge.

OPINION BY: JUDGE KING

“In these circumstances, we must assess whether a Virginia statutory burglary constitutes an aggravated felony using the categorical approach. See Omargharib, 775 F.3d at 196. As the Attorney General concedes in this proceeding, the Virginia burglary statute is broader than the federal crime of generic burglary. In Taylor, the Supreme Court included in its definition of a generic burglary “an unlawful or unprivileged entry” into “a building or other structure,” and explained that state burglary statutes that “eliminat[e] the requirement that the entry be unlawful, or . . . includ[e] places, such as automobiles and vending machines, other than buildings,” fall outside the definition of generic burglary. See 495 U.S. at 598-99. As we noted above, the Virginia burglary statute is satisfied by various alternative means of entry, including one’s entry without breaking or one’s concealment after lawful entry. By proscribing such conduct, the statute falls outside the scope of generic burglary. The Virginia burglary statute also reaches several places that are not buildings or structures, such as ships, vessels, river craft, railroad cars, automobiles, trucks, and trailers. As the BIA recently recognized, the breadth of the statute means that it falls outside the definition of an aggravated felony. See In re H-M-F, __ I. & N. Dec. __ (BIA Mar. 29, 2017). Utilizing the categorical approach, we are also satisfied that the Virginia offense of statutory burglary criminalizes more conduct than the generic federal offense of burglary. The DHS therefore erred in classifying Castendet’s conviction as an aggravated felony.”

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Could the wheels be starting to come off the DHS’s “Expedited Removal Machine” before it even gets up to full throttle?

PWS

04-27-17

THE HILL: Nolan Rappaport Says NY Times “Sugar Coats” Horrors Of FGM!

http://thehill.com/blogs/pundits-blog/immigration/330660-politically-correct-ny-times-hides-horror-of-female-genital

Nolan writes:

“The New York Times does not use the term “Female Genital Mutilation” (FGM) in its article about a Michigan doctor who is being prosecuted for allegedly performing that procedure on two seven-year-old girls. The Times calls the offense, “genital cutting,” despite the fact that the prosecution is based on a federal criminal provision entitled, “Female genital mutilation.”

If convicted, the doctor can be sentenced to incarceration for up to five years.

According to Celia Dugger, the Times’ Health and Science editor, “genital cutting” is a “less culturally loaded” term than “FGM.” It will not widen the “chasm” between “advocates who campaign against the practice and the people who follow the rite.”

For reasons that are inexplicable to me, Dugger seems to think that there can be a legitimate difference of opinion on whether it is right to mutilate the genitals of a seven-year-old girl.

Also, her euphemism, “genital cutting,” makes FGM sound less horrific, which is a disservice to the victims and to the people who are trying to stop the practice.

Political correctness serves a valid purpose when it prevents a person from unnecessarily or unintentionally offending others, but I do not understand why we should be sensitive to the feelings of people who subject seven-year-old girls to genital mutilation.”

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Go on over to The Hill to read Nolan’s complete article at the above link.

For those who want to read (or re-read) my majority opinion in Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996) finding for the first time that FGM is persecution, here is the link: https://www.justice.gov/sites/default/files/eoir/legacy/2014/07/25/3278.pdf.

PWS

04-26-17

PRECEDENT: BIA Opines On “Divisibility” In Agfel Cases — Matter of CHAIREZ-CASTREJON, 27 I&N Dec. 21 (BIA 2017)

https://www.justice.gov/eoir/page/file/959656/download

Here’s the BIA headnote:

“In determining whether a statute is divisible under Mathis v. United States, 136 S. Ct. 2243 (2016), Immigration Judges may consider or “peek” at an alien’s conviction record only to discern whether statutory alternatives define “elements” or “means,” provided State law does not otherwise resolve the question.”

PANEL: Appellate Immigration Judges Pauley, Greer, Malphrus

OPINION BY: Judge Pauley

CONCURRING OPINION BY: Judge Malphrus

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This case is unusual because BIA Judges seldom file “separate opinions” in published decisions these days.

In his concurring opinion, Judge Garry D. Malphrus appears to be both questioning whether the Supreme Court’s approach to statutory “divisibility” analysis comports with congressional intent in immigration matters and inviting Congress to perhaps change the INA so that the BIA and the Immigration Judges could examine the facts of the case, as set forth in the record of conviction, to determine whether the individual should be removed. Judge Malphrus says in his conclusion:

“Here, we must presume that the respondent committed the least of the acts criminalized within the range of conduct punishable under his statute of conviction. See Moncrieffe v. Holder, 133 S. Ct. 1678, 1684–85 (2013). This is true even though the respondent’s plea agreement indicates that he did more—specifically, that he knowingly discharged a firearm at another, and thus he committed an aggravated felony crime of violence. See id.

The approach to divisibility required by Descamps and Mathis will result in immigration proceedings being terminated for many aliens who have committed serious crimes in the United States. See, e.g., Ramirez v. Lynch, 810 F.3d 1127, 1134–38 (9th Cir. 2016) (reversing the order of removal upon concluding that the California statute proscribing felony child abuse was not divisible, and thus it was improper to consider the conviction records in determining whether the alien’s conviction constituted an aggravated felony crime of violence). [footnote omitted]. It is for Congress to determine whether this approach is consistent with its intent regarding the immigration consequences of such criminal conduct.”

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Another observation: How could an unrepresented respondent charged under this section possibly defend himself consistent with due process when the law is so complex and convoluted. This particular respondent was fortunate enough to have a lawyer, and as we can see, he was able to achieve a favorable result. But, recent studies have shown that the overwhelming number of respondents in detention (as individuals charged as “agfels” must be) must proceed without counsel. http://wp.me/p8eeJm-Gv

PWS

04-24-17

“Send Lawyers, Guns, and Money . . . .” — But, Bipartisan Legalization Is What Undocumented Residents REALLY Need, Says N. Rappaport in THE HILL!

Quote from “Lawyers, Guns and Money,” by Warren Zevon, check it out here: http://www.lyricsmode.com/lyrics/w/warren_zevon/lawyers_guns_and_money.html

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http://thehill.com/blogs/pundits-blog/immigration/329310-noncriminal-immigrants-facing-deportation-need-legalization

Nolan writes in a recent op-ed from The Hill:

“The absence of due process protections is permissible because IIRIA “clarified” that aliens who are in the United States without inspection are deemed to be “arriving.” In other words, they are not entitled to the rights enjoyed by aliens who have been admitted to the United States because, technically, they are not in the United States. This legal fiction has been accepted now for more than 20 years.

Previous administrations arbitrarily have limited expedited removal proceedings to aliens at the border and aliens who entered without inspection and were apprehended no more than 100 miles from the border after spending less than 14 days in the country.

But Section 235(b)(1)(A)(iii)(ll) of the Immigration and Nationality Act (INA) authorizes expedited removal proceedings for any alien “who has not been admitted or paroled into the United States, and who has not affirmatively shown, to the satisfaction of an immigration officer, that the alien has been physically present in the United States continuously for the 2-year period immediately prior to the date of the determination of inadmissibility.”

President Trump can use expedited removal proceedings to deport millions of noncriminal aliens without hearings before an immigration judge or the right to appeal removal orders to the Board of Immigration Appeals.

The only way to stop him is to find a way to work with him on a comprehensive immigration reform bill that includes a legalization program. And time is running out.

The Trump administration is quickly identifying ways to assemble the nationwide deportation force that President Trump promised on the campaign trail.

Preparations are being made for U.S. Customs and Border Protection (CBP) to hire 5,000 new officers and for U.S. Immigration and Customs Enforcement (ICE) to hire an additional 10,000. Also, ICE has identified 27 potential locations that could increase its detention space by 21,000 beds, and CBP plans to expand its detention capacity by 12,500 spaces.

But it is not too late to work on a deal that would meet the essential political needs of both parties … yet.”

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Go over to The Hill at the link to read Nolan’s complete op-ed.

I agree with Nolan that given the huge backlogs in the U.S. Immigration Courts, the Administration will use every device at its disposal to avoid the Immigration Courts and completely eliminate due process protections for as many individuals as possible. Moreover, as I have pointed out in a recent blog, to date the Article III Courts have been willing to turn a blind eye to the rather obvious due process and statutory issues involved in expedited removal. See http://wp.me/p8eeJm-IG.

To state the obvious: “Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum” is meaningless without a fair opportunity to be heard on the asylum application before an impartial adjudicator, with a meaningful opportunity to present evidence, and represented by counsel of one’s choice. And, the idea that individuals who have spent months in detention in the U.S. aren’t entitled to “due process” in connection with their asylum applications (which are “life or death” applications) is facially absurd.

Yeah, I know that the Third Circuit in Castro v. DHS spent the whole decision on a turgidly opaque discussion of jurisdiction and and “suspension of habeas.” Surprising how folks living in the “ivory tower” with lifetime job security can sometimes drain all of the humanity out of “real life” tragedies.

But, frankly, in four decades of being a “highly interested observer” of immigration litigation, I’ve never seen an Article III Court, including the Supremes, be deterred from running over supposed statutory limitations on judicial review when motivated to do so. Perhaps it will take some Federal Judge’s nanny, maid, gardener, driver, handyman, neighbor, fellow church member, student, or in-law being swept up in the new “DHS dragnet” to “motivate” the courts here.

In the meantime, as pointed out to me by Nolan in a different conversation, there is some hope for due process in the Third Circuit’s dictum in Castro. In “footnote 13,” the court actually indicates that there might be a “constitutional break point” for review of expedited removal:

“Of course, even though our construction of § 1252 means that courts in the future will almost certainly lack statutory jurisdiction to review claims that the government has committed even more egregious violations of the expedited removal statute than those alleged by Petitioners, this does not necessarily mean that all aliens wishing to raise such claims will be without a remedy. For instance, consider the case of an alien who has been living continuously for several years in the United States before being ordered removed under § 1225(b)(1). Even though the statute would prevent him from seeking judicial review of a claim, say, that he was never granted a credible fear interview, under our analysis of the Suspension Clause below, the statute could very well be unconstitutional as applied to him (though we by no means undertake to so hold in this opinion). Suffice it to say, at least some of the arguably troubling implications of our reading of § 1252 may be tempered by the Constitution’s requirement that habeas review be available in some circumstances and for some people.”

I suspect that the Administration eventually will push expedited removal and credible fear denials to the point where there will be some meaningful judicial review. But, lots of folks rights are likely to be trampled upon before we reach that point.

Nolan’s suggestion for a bipartisan legislative solution certainly seems reasonable and highly appropriate from the viewpoint of both sides. The Administration is about to invest lots of resources and credibility in a “war to deport or intimidate just about everybody” that it is likely to lose in the long run. But, advocates are likely to be bleeding resources and losing individual battles for some time before the tide eventually turns, if it ever does. Anything that depends on litigation as the solution has many risks and unpredictable outcomes that might leave both sides unsatisfied with the results.

Sadly, nobody in the Administration seems interested in solving this issue. The policy appears to be driven by Attorney General Jeff Sessions, a lifelong opponent of immigration reform who seldom if ever has a kind word to say about any immigrant, legal or undocumented.

Secretary Kelly has become “Sessions’s Parrot,” apparently devoid of any original or constructive thoughts on the subject of immigration. In particular, his recent “put up or shut up” outburst directed at Congressional Democrats who sought some meaningful oversight and clarification of his enforcement policies did not seem to be an entree for better dialogue.

Although there almost certainly is a majority of Democrats and Republicans in favor of reasonable immigration reform, which the majority of the country would also like to see, leadership of both parties seems fairly discombobulated. There seems to be “zero interest” in putting together a legislative coalition consisting of Democrats and a minority of Republicans to get anything done. And, even if such a coalition were to coalesce, President Trump likely would veto any constructive result in the area of immigration.

As I’ve pointed out before, there are a number of reasons why folks don’t always act in their best interests or the best interests of the country. But, I appreciate Nolan’s efforts to promote “thinking beyond conflict.” I want to think that it can come to fruition.

PWS

04-20-17

PRECEDENT: BIA Gives Guidance On Admin Closing & Avetisyan — PD Should Not Be A Factor Unless Parties Agree — Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017)

https://www.justice.gov/eoir/page/file/958526/download

BIA Headnotes:

“(1) The primary consideration for an Immigration Judge in evaluating whether to administratively close or recalendar proceedings is whether the party opposing administrative closure has provided a persuasive reason for the case to proceed and be resolved on the merits. Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), clarified.

(2) In considering administrative closure, an Immigration Judge cannot review whether an alien falls within the enforcement priorities of the Department of Homeland Security, which has exclusive jurisdiction over matters of prosecutorial discretion.”

Panel: Appellate Immigration Judges Malphrus, Mullane, & Creppy

Opinion by Judge Malphrus.

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While at first blush it might appear that the unrepresented respondent “won” this appeal, the victory is likely to be phyrric at best.

There was a time (now apparently gone) when the DHS gave individual Assistant Chief Counsel broader authority to offer prosecutorial discretion (“PD”) in cases that were not enforcement priorities.

In Arlington, where I was an Immigration Judge, the Assistant Chief Counsel were very reasonable and fair, and usually agreed to “short docket” hearings on well-documented asylum cases that fell squarely within the BIA precedents. Consequently, when they offered “PD” in an asylum case it usually was a “signal” that they saw the equities in the case, but also had difficulties with the asylum application that would require them to fully litigate the case and probably appeal a grant. Since the Assistant Chief Counsel in Arlington did not normally contest asylum cases unless there were significant proof or legal issues involved, their views had great credibility with both the private bar and with me.

Generally, in such situations I “suggested” that counsel accept the proffer of PD and continue to work with the Assistant Chief Counsel on overcoming her or his problem with the asylum case. If the parties eventually were able to reach agreement that the case could be heard on the “short docket” (30 minutes or less), I would be happy to restore the case to the docket upon joint motion. Usually, counsel got my “message.”

The few cases that went forward after “PD” had been turned down by counsel usually proved to be “losers” for the respondent, either before me or before the BIA. In a couple of cases, where I could see the respondent’s case “going south in a hurry,” I simply stopped the hearing and granted the DHS motion for Administrative Closing for PD over the respondent’s objection. I don’t think anyone ever appealed. But, under Matter of W-Y-U-, I probably could not have done that.

I suspect that when this unrepresented respondent eventually gets his wish and has a merits asylum hearing, he will lose. At that point, the DHS, even prior to the Trump Administration, would be unlikely to exercise PD, even if there were outstanding equities.

Sometimes in litigation you get what you ask for, and later wish you hadn’t asked.

PWS

04-19-17

PRECEDENT: BIA Finds “Assault with a deadly weapon or force likely to produce great bodily injury under California law is categorically a crime involving moral turpitude.” — Matter of Wu, 27 I&N Dec. 8 (BIA 2017)

Here’s the link to the full opinion:

https://www.justice.gov/file/957431/download

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BIA PANEL: Appellate Immigration Judges Malphrus, Mullane, & Creppy

OPINION BY: Judge Malphrus

PWS

04-14-17

IT’S TRUE! — DOJ Eliminates U.S. Immigration Judges’ Only Annual Training! — Quality & Professionalism “De-Prioritized” In Trump Era — Billions For Enforcement & Incarceration — Crumbs For Due Process — When Is Congress Going To “Just Say No?”

Reliable sources have now confirmed what I reported in this blog earlier this week (http://wp.me/p8eeJm-Ge): the DOJ has eliminated the U.S. Immigration Court’s only formal annual training. U.S. Immigration Judges have been ordered to schedule cases during the week normally reserved for advanced training, continuing judicial education, and professional development.

This news couldn’t come at a worse time for the beleaguered U.S. Immigration Courts. Dozens of new U.S. Immigration Judges have been appointed in the last year, most of whom have never met their judicial colleagues across the nation.

Moreover, this would be their only opportunity beyond some brief “basic training” to pursue continuing judicial education in this complex, controversial, and ever-changing field. It’s also an opportunity to “catch jump” on what all the Circuit Courts of Appeals are doing, as well as to hear from BIA Appellate Immigration Judges about developments at the Board. Additionally, it is a key opportunity to address the disturbing, continuing problem of inexplicable discrepancies in asylum adjudication (84% grant rate in one Immigration Court; 2% grant rate in another) within the Immigration Court system.

Some of the training at the Annual Conference is statutorily required, such as updates under the International Religious Freedom Act, which, perhaps ironically, often highlights the persecution faced by Christian groups in China and the Middle East, a subject on which the Administration has expressed concern. Other sessions cover ethics training required by DOJ regulations.

In addition, the DOJ considers U.S. Immigration Judges to be “DOJ attorneys.” As a consequence, judges are required to maintain “active” status in at least one state bar, even though they perform only quasi-judicial duties and therefore would be eligible for “active judicial status” in many states.

The Annual Conference usually meets the “mandatory CLE” requirements of various state bars. But, when there is no Annual Conference, individual judges must take leave from the bench to complete the coursework required by their respective state bars. Therefore, Immigration Judges are off the bench learning about state real estate transactions and changes in tort law, when they could instead be advancing their knowledge in immigration and refugee law as well as “best judicial practices” in Federal Courts.

I get frequent reports of cratering morale among Immigration Judges and court staff, increases in the already extraordinary levels of stress, and impending retirements of some of the best and most experienced judges. Some Immigration Judges returning from details to hastily thrown together so-called “Immigration Courts” in DHS detention centers were shocked, upset, and angered to see with their own eyes that individuals with viable claims for relief, most of them asylum or related protection, were being “duressed” by the coercive conditions and atmosphere in DHS detention to abandon their claims and take “final orders of removal,” just to be out of detention. And, the Administration is just getting started on its plans for “Incarceration Nation.”

Lawyers report that they show up at Immigration Court with clients and witness in tow prepared for merits cases which have been pending for years, only to find out that the cases have been rescheduled to a dates several more years in the future, without advance notice, so that the Immigration Judges can be detailed to a detention centers in other parts of the country.

When is Congress finally going to step in and provide some meaningful oversight of the unfolding due process disaster in U.S. Immigration Courts? Regardless of where one stands on the philosophical issues surrounding immigration enforcement, providing due process and complying with constitutional, statutory, and international treaty obligations, including reasonable access to counsel (which is not available in most DHS detention center locations), should be a bipartisan priority.

Isn’t it time for a bipartisan group of GOP legislators concerned about the billions of dollars being mindlessly poured into immigration enforcement and Democrats who are concerned about due process getting together and holding the Trump Administration accountable for what’s really happening in our Immigration Courts?

PWS

04-13-17

POLITICO: Immigration Advocates Find Area Of Agreement With AG Sessions: Plan To Boost Troubled Immigration Courts — But, Concerns Remain That Judicial Hiring Could Again Be Politicized — Those Who Care About Due Process Should Carefully Watch The Results Of The “Streamlined” Judicial Vetting System!

http://www.politico.com/agenda/story/2017/04/the-one-area-jeff-sessions-and-immigration-advocates-agree-000411

Danny Vinik reports:

“Attorney General Jeff Sessions directed attorneys from the Department of Justice on Tuesday to increase the enforcement of U.S. immigration laws, including laws against unlawful entry, human smuggling and identity fraud. It was yet another escalation of the Trump administration’s crackdown on undocumented immigrants, and immigrant-rights groups blasted the policy changes as ineffective and potentially illegal.

For all their opposition to the Trump administration’s immigration agenda, though, advocates actually back one of the new policies: the increased support for the immigration courts.

Sessions announced that DOJ will seek to add 75 immigration judges to the courts over the next year and will implement reforms to speed up the hiring process. These changes address a real problem with the immigration system—a nearly 600,000-case backlog at the immigration courts—and the move was a rare occasion in which advocates applauded the administration, though they were concerned how Sessions would implement the changes.

“We are very happy at the notion of increasing the amount of immigration judges and being able to address the backlog,” said Jennifer Quigley, an immigration expert at Human Rights First. “But as a senator and now as AG, we’ve always had concerns that Sessions’ motivation is to increase the number of deportations.”

. . . .

Experts largely blame Congress for the backlog, since lawmakers significantly increased resources for immigration enforcement without a commensurate increase in funding for the immigration courts. But in recent years, Congress has increased the number of authorized immigration judges, most recently in 2016 when it provide funding for an additional 55 judges, raising the authorized number from 319 to 374. However, even with enough money, EOIR has struggled to quickly hire judges, as the hiring process can take more than a year and retirements have created additional openings. Currently, there are 312 immigration judges nationwide, a significant increase over a year ago but still far below authorized levels. Trump’s budget blueprint proposed funding 449 judges in fiscal 2018, a significant increase that could find bipartisan support on Capitol Hill.

More important than the request for additional judges, however, may be the hiring reforms. EOIR and DOJ both declined to comment on how the Justice Department was reforming the hiring process for immigration judges. Speaking to border patrol personnel at the U.S.-Mexico border Tuesday, Sessions provided few details. “Today, I have implemented a new, streamlined hiring plan,” he said. “It requires just as much vetting as before, but reduces the timeline, reflecting the dire need to reduce the backlogs in our immigration courts.”

Advocates worry that the hiring process could become politicized, with judges brought on who want to implement specific policies instead of fairly enforcing the law. “The idea of onboarding judges quicker and having more judges is a great thing,” said Joshua Breisblatt, a policy analyst at the American Immigration Council. “But we need to see what it looks like, that it won’t be political.” The language in the budget blueprint was particularly concerning, advocates said, because it seemed to indicate that the courts are a tool for increasing deportations rather than a neutral arbiter of immigration claims.

“We were not happy with the way it was framed,” said Quigley.

It’s not an unrealistic concern. Immigration judges are technically employees of the Department of Justice, a structure that inherently creates a conflict of interest, since their job is to rule on immigration cases that are pushed by DOJ prosecutors, whereas most of the judiciary is independent. Advocates and the immigration judges union have long pushed to remove the immigration courts from the DOJ. And during the Bush administration, a DOJ investigation found that several immigration judges received their jobs due to their political connections, a scandal that serves as a warning today.

Despite those concerns, experts hope that Sessions and EOIR will undertake the hiring process in a timely and impartial manner, filling the bench with qualified judges who have enough time to understand the cases before them. As Sandweg said, “It’s something that’s long overdue.” In such a world, the additional judges could reduce the backlog, increasing the number of deportations, while spending more time on complicated asylum cases, giving asylum seekers more time to fairly present their cases and receive careful consideration.

In such a world, it’s possible that both the Trump administration and advocates could come out happy—a scenario almost impossible to imagine today.”

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Sessions is certainly right to address the ridiculous 18-24 month hiring cycle for U.S. Immigration Judges, and should get credit for making reform one of his top priorities. He also should be credited with focusing attention on the 542,000 case backlog, something that the Obama Administration seemed to have preferred to ignore as it mushroomed in front of their eyes. (As I said in this blog yesterday, I’m not convinced that even the 125 additional Immigration Judges proposed by Sessions over the next two years will effectively address a pending docket of that magnitude: http://wp.me/p8eeJm-FQ. But, it’s a start.)

However, the devil is in the details. And, the details of Session’s “streamlined judicial hiring” have not been made public, although the Attorney General said they were “implemented” on April 11.

Remarkably, I have learned that as of today, April 12, both EOIR Management and the union representing U.S. Immigration Judges (of which I am a retired member) were “totally in the dark” about the contents of the plan. That means it was “hatched’ at the DOJ without any meaningful input from those in the U.S. Immigration Court system or the court’s “stakeholders” — those representing the interests of the hundred of thousands of individuals with cases currently before the court or who might come before the court in the future. That’s troubling. It also appears that members of Congress had not been briefed on the hiring changes.

What’s even more troubling is that it’s not just about the inexcusably slow and bureaucratic hiring practices of the DOJ and EOIR. It’s also about results. During the Obama Administration, although officials claimed that the system was “merit-based” the results suggest that it was anything but.

According to informed sources who have done the math, an amazing 88% of those selected were from government backgrounds and 64% were from ICE, which prosecutes cases before the Immigration Court. I have had reports of numerous superbly qualified individuals from the private sector whose applications were rejected or put on indefinite hold without any explanation.

So, it looks like the many-layered, glacially slow, inefficient, overly bureaucratized process used by the DOJ and EOIR was actually an elaborate “smokescreen” for a system that was heavily weighted toward selecting “government insiders” and against selecting those who had gained experience by representing immigrants or advocating for their rights. The “Appellate Division” of the U.S. Immigration Court, the BIA — which is supposed to be the “top administrative court” in immigration — hasn’t had a judge appointed from outside the Government since 2000, more than 16 years and two full administrations ago!

Based on performance to date, I’m not particularly optimistic that AG Jeff Sessions is going to make the changes necessary to establish a true merit-based system for Immigration Judge hiring that, in turn, will create an immigration judiciary representing more diverse backgrounds and experiences. But, hope springs eternal, and I’d be happy if he proves my skepticism to be wrong.

Only time will tell. But, the quality and composition of the “Sessions era” immigration judiciary is something that everyone who cares about due process and justice in America should watch closely.

PWS

04/12/17

BIA Says MD Sexual Solicitation Of Minor Is Categorical CIMT — Matter of JIMENEZ-CEDILLO, 27 I&N Dec. 1 (BIA 2017) — BIA Reaches A Publication Milestone!

https://www.justice.gov/eoir/page/file/955631/download

Here’s the headnote:

“(1) A sexual offense in violation of a statute enacted to protect children is a crime involving moral turpitude where the victim is particularly young—that is, under 14 years of age—or is under 16 and the age differential between the perpetrator and victim is significant, or both, even though the statute requires no culpable mental state as to the age of the child. Matter of Silva-Trevino, 26 I&N Dec. 826 (BIA 2016), clarified.

(2) Sexual solicitation of a minor under section 3-324(b) of the Maryland Criminal Law with the intent to engage in an unlawful sexual offense in violation of section 3-307 is categorically a crime involving moral turpitude.”

PANEL: Appellate Immigration Judges Pauley, Mullane, and Greer; Opinion by Judge Pauley.

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Yeah, I know that they teach you in law school never to rely on headnotes. So, if you are going to use this case for any legal filing you should of course read the entire opinion.

But, for the rest of us, the BIA headnotes are some of the “best in the business” if I do say so myself, having had some role in setting up the “modernized version” of BIA precedent distribution and formatting in one of my former lives.

And with this case, the BIA crosses another threshold in its 77 year history: completion of Volume 26 and the very first decision in Volume 27.

PWS

04-08-17

“Come Together” — A Great New 1-Min. Video From The GW Immigration Clinic All-Stars! — “Why We Are Motivated To Work for Immigrants!”

GW Immigration Clinic 2017 – Medium

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Looks like lots of new recruits for the “New Due Process Army.” These guys are the real “heart and soul” of today’s American law. Thanks to Professor Alberto Gonzalez for sending this in.

PWS

04/03/17

Turning Back The Hands Of Time — Sessions Seeks To Restore AG’s Lead Role In Immigration Enforcement!

https://www.washingtonpost.com/politics/seeking-central-role-on-immigration-attorney-general-jeff-sessions-plots-border-visit-to-arizona/2017/03/30/34fc8596-1550-11e7-833c-503e1f6394c9_story.html

David Nakamura and Matt Zapotosky report in the Washington Post:

“The Justice Department is seeking to play a more muscular role in the Trump administration’s immigration enforcement strategy, a move that is alarming immigrant rights advocates who fear Attorney General Jeff Sessions’s hard-line ideology could give Justice too much clout in determining policy.

To highlight the department’s expanding role, Sessions is considering making his first trip to the southern border in mid-April to Nogales, Ariz., a busy border crossing region that features a major patrol station and already has miles of fencing and walls designed to keep out illegal immigrants from Mexico. Aides emphasized that his itinerary is still being developed and the stop in Nogales — which would come as Sessions travels to a conference of state police officials from around the country 200 miles away in Litchfield Park — is still tentative.

If he follows through, the border visit would come at a time when President Trump is asking Congress for billions of dollars to begin construction on a longer and larger wall between the United States and Mexico, a central campaign promise.

In recent weeks, Sessions has taken steps to increase his department’s focus on immigration.

. . . .

But legal experts said Sessions could significantly restructure the Justice Department by ramping up the number of immigration judges sent to the border to speed up hearings and by pursuing more criminal prosecutions against immigrants in the United States beyond those associated with drug cartels and human smugglers that past administrations have focused on.

The Sessions Justice Department also could move to strip some protections from undocumented immigrants, such as how much time they have to find a lawyer; more robustly defend DHS enforcement policies that are challenged in court; and use the Office of the Special Counsel to aggressively prevent employers from discriminating against American workers by hiring undocumented workers, said Leon Fresco, a former deputy assistant attorney general in the Obama administration.

“I think they will be incredibly active,” said Fresco, who helped draft the 2013 immigration bill while serving as an aide to Sen. Charles E. Schumer (D-N.Y.). The only thing that could slow Sessions, he added, was “finding enough individuals with expertise and the willingness to speed these issues along.”

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Prior to the creation of the Department of Homeland Security (“DHS”), the Attorney General had responsibility for nearly all aspects of domestic immigration enforcement and adjudication. Most of those functions were reassigned to the DHS, leaving the AG responsible primarily for the Immigration Courts (through the Executive Office for Immigration Review – “EOIR”) and for conducting immigration litigation in the Article III Federal Courts (through the Office of Immigration Litigation — “OIL”).

Apparently, Attorney General Sessions finds these legal roles too “passive” for his enforcement-oriented outlook. Sensing a vacuum because of his closeness to the President and DHS Secretary Kelly’s relative inexperience in immigration issues, Sessions now seeks to make, rather than just defend or adjudicate, immigration policy.

What does this say about the chances that Sessions will promote a fair and impartial administrative hearing system through the U.S. Immigration Courts and the Board of Immigration Appeals over which he exercises ultimate control.

PWS

03/31/17

Judge Posner Slams BIA For Ignoring Evidence Of Worsening Conditions In South Sudan — Deng Arej v. Sessions — 7th Cir.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2017/D03-28/C:15-2061:J:Posner:aut:T:fnOp:N:1937333:S:0

“Arej has conceded that he qualifies as a criminal alien under 8 U.S.C. § 1252(a)(2)(C), so our review of the Board’s decision is limited to issues of law. 8 U.S.C. § 1252(a)(2)(D). But it was a serious legal error for the Board to have ignored Arej’s evidence. As we noted in Iglesias v. Mukasey, 540 F.3d 528, 531 (7th Cir. 2008), the Board cannot make a reasoned decision to deny a motion to reopen if it ignores the evidence that a petitioner presents.

Furthermore, a competent immigration service would not ignore world events. The dramatically worsening conditions in South Sudan have been widely reported, with the young nation described as “cracking apart” and United Nations officials raising concerns about genocide. See, e.g., Jeffrey Gettleman, “War Consumes South Sudan, a Young Nation Cracking Apart,” New York Times, March 4, 2017, https://nyti.ms/2lHeELw. “Tens of thousands of civilians have been killed”; “every major cease‐fire that has been

No. 15‐2061 5

painstakingly negotiated by African and Western officials has been violated”; and “dangerous fissures are opening up within the South Sudanese military.” Id. And time doesn’t stand still. The Board’s order dismissing Arej’s appeal from the immigration judge’s denial of his motion to reopen was issued on May 8, 2015—almost two years ago. Considering that Arej has not yet been removed and that the order was perfunctory, the Board should consider whether he should be allowed to present evidence concerning current conditions in the two Sudans. See 8 C.F.R. § 1003.2(a).

The petition for review is therefore granted, the decision of the Board vacated, and the case remanded to the Board for further proceedings consistent with this opinion.”

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Seems like a South Sudan case would be a “no brainer” for reopening by the BIA. Not sure we even deport folks there. And, actually reviewing the evidence carefully would be a great first step toward becoming “the world’s best administrative tribunals, guaranteeing fairness and due process for all.” Or, has the vision become just a slogan from bygone years? He’s probably only eligible to apply for withholding or CAT, though, because of the nature of his criminal conviction.

PWS

03/29/17

WashPost PROFILE: Elena Albamonte, Due Process Heroine — As DHS Prosecutor She Saw The Problems — After Retirement, She’s Fixing Them One Tough Case At a Time — And, She’s Doing It At The Stewart (Detention Facility) Immigration Court In Lumpkin, GA, One Of America’s Least Hospitable Environments For Asylum Seekers!

https://www.washingtonpost.com/local/she-helped-deport-hundreds-of-undocumented-immigrants-now-shes-fighting-for-them/2017/03/27/9dc59cc6-04e7-11e7-b9fa-ed727b644a0b_story.html

Steve Hendrix writes:

“STEWART DETENTION CENTER, LUMPKIN, Ga. — In a tiny hearing room at one of the country’s most remote and unforgiving immigration courts, Elena Albamonte walked right past the table she had used for years as the government’s highest-ranking prosecutor here. Instead, she put her briefcase on the other table, taking a seat next to an Armenian man in prison garb who had illegally crossed into the United States.

After a three-decade career overseeing deportations as a government immigration lawyer, Albamonte has switched sides.

“Ready, your honor,” Albamonte said to immigration court Judge Dan Trimble after tidying a thick file of legal documents.

She knew her chances of persuading Trimble to grant her client political asylum were awful. Even before President Trump’s crackdown on the nation’s 11 million undocumented immigrants, the judges at Stewart had been deporting detainees at startlingly high rates. Trimble had turned down 95 percent of those seeking asylum from fiscal 2011 to 2016, according to a study of immigration judges by Syracuse University.

But for 40 minutes, Albamonte gamely made the case for Geregin Abrahamyan, a 33-year-old who said he was repeatedly beaten and threatened because of his political activity in Armenia.

Abrahamyan had been in Immigration and Customs Enforcement custody since the day he and his pregnant partner and their 3-year-old daughter crossed from Mexico seven months earlier and turned themselves in at a Border Patrol office. Mother and daughter were quickly granted parole and live with Abrahamyan’s parents in California. But Abrahamyan was shipped across the country and had yet to meet his son, who was born in August.
Albamonte, 60, argued that he was eligible for asylum despite being turned down once before and that he had suffered additional beatings in Armenia that the court should know about.”

. . . .

She doesn’t apologize for prosecuting hundreds of asylum cases that ended in deportation.

“Not everyone has a right to asylum under the law as it is written,” she said. “But everybody does deserve competent, fair representation. That’s how the system is supposed to work.”

And that is how she wound up staying here, far from her home in the Washington suburbs, living in a tiny Southern town and working on the opposite side of the issue that defined her career.

“I never expected any of this,” she said.

. . . .

She doesn’t apologize for prosecuting hundreds of asylum cases that ended in deportation.

“Not everyone has a right to asylum under the law as it is written,” she said. “But everybody does deserve competent, fair representation. That’s how the system is supposed to work.”

And that is how she wound up staying here, far from her home in the Washington suburbs, living in a tiny Southern town and working on the opposite side of the issue that defined her career.

“I never expected any of this,” she said.”

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Hendrix’s full-page, in depth profile of Elena and her amazing career is a “must read” for anyone seeking to understand the challenges of providing due process in today’s U.S. Immigration Court system. And, Elena is a truly inspiring role model for young lawyers seeking to enter the immigration field. Elena’s career demonstrates the importance of combining knowledge with flexibility and interpersonal skills and caring. As pictured in this article, Elena treats everyone she comes in contact with clients, staff, court personnel, opponents, and Immigration Judges with respect, conviviality, and genuine humanity. She recognizes an essential truth — the law is complex and often difficult, but it is the people who will make or break you in practicing law.

I’m proud to say that Elena once worked for me during my tenure as Chair of the BIA. Our paths later crossed when she was detailed to the Arlington Immigration Court as an Assistant Chief Counsel several years before my retirement. I think I told her at that time that a number of my colleagues had remarked on how much we appreciated her skills as a trial lawyer and enjoyed having her appear before us. Obviously, she’s taken those skills with her into private practice.

I’ve also commented previously about the inherent unfairness of the U.S. Immigration Court agreeing to locate “captive courts” within detention centers where effective representation is often unavailable, public access (and therefore transparency) is limited, and the atmosphere is not conducive to the impartial delivery of justice. Clearly, this Administration intends to double down on this unfortunate practice rather than seeking to end or phase it out.

Don’t think that representation by someone like Elena makes a difference for a respondent? Well, by my count, she’s succeeded in six of her seven cases where decisions have been rendered by the Immigration Judge. That’s a success rate of about 85% in a location where the average asylum grant rate is 5% — an astounding 1,700% difference.

Thanks, Elena, for all you have accomplished for the cause of justice during your career and for your continuing commitment to providing due process for the most needy and vulnerable among us! You are truly an inspiration to all of us!

PWS

03/29/17

ABA JOURNAL: Superstar Reporter Lorelei Laird Exposes The Impending Disaster In The U.S. Immigration Courts! (I Am One Of Her Quoted Sources)

http://www.abajournal.com/magazine/article/legal_logjam_immigration_court

Lorelei reports:

“In the fall of 2016, the Executive Office for Immigration Review was busy addressing these problems by hiring aggressively, spokeswoman Kathryn Mattingly said.

As of March, she said the agency had 301 seated judges and had requested authorization for a total of 399 judgeships. Those new judges are welcomed by legal and immigration groups—including the ABA, which called for more immigration judges with 2010’s Resolution 114B.

But that effort may be overwhelmed by changes under the Trump administration. Trump’s actions since taking office emphasize enforcement; his executive orders call for 10,000 more ICE agents and 5,000 more CBP officers, and they substantially reduce use of prosecutorial discretion. In his first months in office, there were several high-profile deportations of immigrants who had previously benefited from prosecutorial discretion and had little or no criminal record.

Although the DOJ eventually said immigration judges weren’t subject to the hiring freeze, it’s unclear whether immigration courts will be funded enough to handle all the additional cases. If not, Schmidt says, wait times will only worsen.

“If they really put a lot more people in proceedings, then it seems to me the backlog’s going to continue to grow,” he says. “How are they going to take on more work with the number of cases that are already there?”

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This is just a small sample. Read Lorelei’s much lengthier and complete analysis of all of the problems, including interviews with a number of other experts and a cross-reference to the ABA’s previous work predicting just such a docket disaster at the above link.

In my view, the Trump Administration is aggravating the problem, rather than seeking to improve the delivery of due process. Given the nature of the system, they might get away with it for awhile. But, eventually, one way or another, these chickens are coming home to roost. And, when they do, it won’t be pretty for the Administration, for anyone involved with the U.S. Immigration Court system, and for the American system of justice.

PWS

03/27/17

6th Cir. Says BIA Improperly Required Respondent To Establish “Freedom From Surveillance” In Entry Case — MARCIAL LOPEZ V. SESSIONS

http://www.opn.ca6.uscourts.gov/opinions.pdf/17a0063p-06.pdf

“In applying this official-restraint test here, the parties agree that surveillance was the only form of official restraint that the government could have used against Lopez before his arrest. Because only the government customarily possesses evidence of surveillance and because an alien cannot prove what he cannot see, we treat surveillance as an affirmative defense, one that allows the government to show official restraint with respect to an individual who crosses the border without being stopped. In this instance, the Board made no factual finding as to whether Lopez was, or was not, under surveillance from the time he crossed the border until the time the border agents found him. The Board sidestepped the question. It instead found that Lopez’s capture a mile from the border and thirty-one minutes after his crossing did not suffice to prove that Lopez had evaded apprehension and was free from official restraint. That conclusion does not follow from the facts. No evidence shows that border agents surveilled Lopez when he crossed the border. And Lopez testified that he was looking for a hotel to check into, all consistent with the border patrol’s report that said Lopez was in “travel/seeking” when apprehended. A.R. 247. Unless and until the Board finds that Lopez was under surveillance when he crossed the border, that means Lopez was free from official restraint and had evaded inspection.”

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PWS

03/22/17

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