Board of Immigration Appeals (“BIA”) – Page 82

DOJ POLITICOS SEEK TO “SPEED UP” A CAPTIVE COURT SYSTEM ALREADY STRUGGLING WITH THE BASICS OF DUE PROCESS FOR MIGRANTS: 4th Cir. Has To Instruct BIA On Applying The Burden Of Proof In Removal Proceedings – Mauricio-Vasquez v. Whitaker

Mauricio-Vasquez v. Whitaker, 4th Cir., 12-06-18, published

PANEL: NIEMEYER, DIAZ, and FLOYD, Circuit Judges.

OPINION BY: JUDGE DIAZ

KEY QUOTE:

It was DHS’s burden to affirmatively prove (by clear and convincing evidence) that Mauricio-Vasquez last entered in 2000 without inspection, and was therefore not admitted until 2008, because this determines whether his 2012 felony abduction offense fell within the five-year window for removability. But here, the record contains essentially unrebutted evidence showing that Mauricio-Vasquez was in Peru from 1999 to 2001, and that he presented himself for inspection and was allowed to enter the United States at Reagan National Airport in 2002 (whether on a visa or otherwise).5 In our view, any reasonable adjudicator would be compelled to conclude that DHS failed to prove Mauricio-Vasquez was admitted in 2008.6 He is therefore not removable on the ground alleged by DHS.

For the foregoing reasons, we grant Mauricio-Vasquez’s petition for review.

Although the ordinary practice is to remand to the agency for further proceedings consistent with our disposition, we conclude that such proceedings “would serve no purpose” here. Medina-Lara v. Holder, 771 F.3d 1106, 1118 (9th Cir. 2014) (quotingKarimi v. Holder, 715 F.3d 561, 565 (4th Cir. 2013)). The Board remanded this case once before, after the Immigration Judge determined that DHS had failed to satisfy its burden of proof. Yet despite being allowed to fully develop the record on remand, DHS has again failed to carry its burden. Under the circumstances, we decline to give DHS a “third bite at the apple.” Id. (quoting Siwe v. Holder, 742 F.3d 603, 612 (5th Cir. 2012)).

We therefore vacate the order of removal, and remand to the agency with instructions to grant Mauricio-Vasquez’s motion to terminate removal proceedings.

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

Reminds me of a BIA colleague who once wrote in a dissent from a much remanded visa petition case that it was “time to put an end to this pathetic attempt at adjudication by the District Director.”

Fixing the glaring quality and due process problems in the Immigration Court system should be “priority 1.” Instead, the emphasis from the politicos is on artificially trying to make a broken system go faster and churn out more potentially erroneous decisions.

Time to get this court system out of the clutches of the DOJ so that it can be fixed and function as a court should.

PWS

12-17=18

ELIZABETH BRUENIG @ WASHPOST: Advice For Dems in 2020: Don’t Count Out The Possibility Of Standing Up For Values As Part Of A Winning Strategy!

https://www.washingtonpost.com/opinions/my-advice-to-progressives-dont-back-down/2018/12/14/b6e0bacc-ffbf-11e8-862a-b6a6f3ce8199_story.html?utm_term=.5aa9cb81d603

Elizabeth writes:

A reductive, but not incorrect view of the Democratic debacle in the 2016 elections holds that when President Trump took office, centrists lost the present and leftists lost the future. In 2020, Democrats will have a new opportunity to either reach backward for the Obama era, or to lay the foundation for a bolder, progressive future. Deciding which goal to pursue will likely become the chief party fault line as the 2020 primaries approach. My advice to progressives: Don’t back down.

For the party’s center-leaning establishment, a return to the Obama era makes sense. Centrists were happy then — thrilled to witness the passage of health-care reform that did something but not too much (so long, public option !), comfortable with what one might gently label a muscular foreign policy , pleased with the recovery from the 2008 financial crisis, though it came at the expense of homeowners in foreclosure while coddling Wall Street . All in all, things seemed stable and sustainable. Only tweaks and patches lay ahead.

But then, history — presumed dead by those who believed, with socialism extinguished, the future held nothing but increasing gains for liberal democracy — happened again. The 2016 election witnessed a swell of populist disenchantment with the status quo and concluded with the election of Trump. With Trump came a queasy uncertainty that still characterizes politics to this day,leaving old norms dissolved and common sense unequal to its task.

So much of centrist-Democrat fantasizing about 2020 already seems aimed at repeating a golden past. Consider the groundswell of interest in Beto O’Rourke, the Texas congressman who narrowly lost his recent Senate race against Sen. Ted Cruz. For Democrats excited about O’Rourke, his primary draw is his similarity to Barack Obama — both in form and content. O’Rourke has held conversations with the former president about a possible run, to build on a belief that O’Rourke, as my colleague Matt Viser described it, is “capable of the same kind of inspirational campaign that caught fire in the 2008 presidential election.”

O’Rourke’s politics also fall into the same ambiguously centrist zone as Obama’s. “Like Mr. Obama as he entered the 2008 campaign, Mr. O’Rourke can be difficult to place on an ideological spectrum, allowing supporters to project their own politics onto a messaging palette of national unity and common ground,” a recent New York Times report observed . Meanwhile, other candidates straight from Obama’s orbit — such as former vice president Joe Biden and former housing secretary Julián Castro — are also eyeing the nomination, with appeals to unity and centrist perspectives.

When not absorbed in hopes of re-creating the Obama era, Democrats mainly seem intent on beating Trump, with little comment or insight, at least so far, on what they will do with power once they have it. (After I questioned in my last column whether O’Rourke has demonstrated serious commitment to progressive values, some readers responded by arguing they’re glad he hasn’t — that Democrats need to run an Obama-style centrist to win back conservatives who might otherwise favor Trump. “A too-progressive Democratic nominee in 2020,” one reader wrote, “would be a gift to President Trump.”) Likewise, at a recent event in New York, former FBI director James B. Comey implored Democrats to put aside their political projects in favor of an all-consuming focus on simply beating Trump . “I understand the Democrats have important debates now over who their candidate should be,” Comey said, “but they have to win. They have to win.”

Presidential elections provide an opportunity for parties to identify and rally around their principles — and even to radically reshape them. If all the Democrats can manage is to hark back to the past and focus on winning for its own sake, they’re missing an opportunity to lay out a blueprint for the future. I don’t think that putting forth progressive priorities is incompatible with beating Trump; in fact, I think that having a clear and persuasive vision of what a better America can look like is likely to be more attractive to voters than promising them something vaguely like the past. One of the political lessons of recent years is that history is never over. The future is waiting, if we want to build it.

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

Certainly the Obama Administration was “golden” by comparison with the current corrupt, White Nationalist regime that has made overt racism and hate front and center. However, despite some good things like DACA, stateside processing, and a late stab at wider use of prosecutorial discretion (“PD”), Obama was fairly disappointing from an immigration standpoint.

Under Obama, there was lots of ambiguity and misdirected enforcement, substantial overuse of detention (particularly substandard private detention), and the forerunner of the Trump Administration’s failed “border deterrence” strategy. Obama folks didn’t seek and glory in the cruelty and dehumanization the way that this Administration does. But, in human terms, the results often were similar for the individuals concerned: split families, indefinite detention, kids in jails, a failing U.S. Immigration Court system, and only a smattering of real “immigration pros” in key positions where they too often were not ” driving the train” or being taken seriously.

Can an immigration system based on the reality that immigration is good and necessary for our country, a professionally run independent U.S. Immigration Court dedicated to Due Process with efficiency, a more robust acceptance of refugees, a secure border, cooperation with the international community in solving problems, and treating those who can’t be accepted fairly, humanely, and respectfully be part of winning political strategy?

PWS

12-17-18

THE FURTHER EXPLOITS OF “OUR GANG” – 5th Circuit Grants Oral Argument In Matter of W-Y-C- & H-O-B- (requiring asylum applicants to clearly delineate the PSG before the IJ)!

“Hot off the wire” from “Our Gang” of Retired Immigration Judges’ Leader Judge Jeffrey Chase:

Good morning, all: The Fifth Circuit has granted oral argument for the week of February 4 in Canterero-Lagos v. Whitaker the appeal of the BIA’s decision Matter of W-Y-C- & H-O-B- (requiring asylum applicants to clearly delineate the PSG before the IJ). Our group filed an amicus brief in that case (there was a second amicus brief on behalf of legal service providers). Lead counsel emphasized the importance of the amicus briefs in convincing the Circuit court to grant oral argument, which OIL opposed, arguing that the case was not of particular interest and that W-Y-C- did not constitute a change in existing law.

Best, Jeff

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

Thanks Jeff for passing this along! And special thanks to all of our retired colleagues who make this effort so special and effective and to the amazingly talented and dedicated pro bono advocates who help us be “heard in court.”

Even from our angle, we can see that “great representation makes a difference.” If it makes that much of a difference to retired Immigration Judges trying to be “heard,” just imagine what a difference it makes to those actually appearing in U.S. Immigration Court to literally “plead for their lives!”

That’s why this Administration’s “strategy” of using waiting lists, illegal orders, inhumane detention, family separation, expedited removal, skewed credible fear interviews, and so-called “review before an Immigration Judge” where counsel, even if present, isn’t even allow to speak, to prevent competent representation and fair presentation of claims is such an outrageous abuse of Due Process!

We are still in the early stages of fully exposing the jaw-dropping extent of these abuses to Article III Judges, Congress, and the public! And, we (and our successors and allies in the NDPA) won’t rest until the U.S. Government is finally forced to live up to its cynically abandoned promise of making U.S. Immigration Courts “the world’s best tribunals, guaranteeing fairness and due process for all!”

No wonder that Trump and his White Nationalist cronies are so scared of “gangs like ours!”

PWS

12-14-18

SOPHIA GENOVESE: Advocates Must Keep Pushing Back Against DOJ’s Bias & Unduly Restrictive Interpretations Of Asylum Law!

https://www.lexisnexis.com/legalnewsroom/immigration/b/outsidenews/posts/acting-ag-whitaker-takes-aim-at-asylum-seekers-fleeing-family-based-persecution—sophia-genovese

Sophia writes in an article that was published at LexisNexis:

Acting AG Whitaker Takes Aim at Asylum Seekers Fleeing Family-Based Persecution – Sophia Genovese

Sophia Genovese, Dec. 10, 2018 – “Acting Attorney General Matthew Whitaker has followed in his predecessor’s footsteps by referring yet another immigration case to himself, Matter of L-E-A-, 27 I&N Dec. 494 (A.G. 2018). The Acting AG asks parties to brief “whether, and under what circumstances, an alien may establish persecution on account of membership in a particular social group under 8 U.S.C. 1101(a)(42)(A) based on the alien’s membership in a family unit.”

As background, the Board of Immigration Appeals (BIA) in Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017) recognized that membership in a family unit constitutes a particular social group. However, it held that to establish eligibility for asylum on such a basis, “an applicant must not only demonstrate that he or she is a member of the family but also that the family relationship is at least one central reason for the claimed harm.” The BIA denied asylum to the respondent, L-E-A-, for failing to meet this nexus requirement. The respondent was a native and citizen of Mexico whose father owned a general store in Mexico City. Members of a drug cartel approached the respondent’s father to ask if they could sell drugs in the store as they viewed it as a favorable distribution location. The respondent’s father refused. The members of the drug cartel approached respondent to see whether he would sell drugs for them at his father’s store. Upon respondent also refusing, the members of the cartel tried to abduct him, but he was able to get away. The respondent fled to the United States and sought asylum. The IJ and BIA reasoned that the respondent was not entitled to relief because even if the persecutor had harmed the respondent, it was done so as a means to an end, i.e. to sell drugs. In other words, they argued, the persecution was not due to the respondent’s membership in a particular social group and animus towards the family, but rather because he was interfering in their drug trade.

The BIA in Matter of L-E-A- recognized the long history of family units constituting particular social groups. See, e.g., Crespin-Valladares v. Holder, 632 F.3d 117, 128 (4th Cir. 2011); Al-Ghorbani v. Holder, 585 F.3d 980 (6th Cir. 2009); Torres v. Mukasey, 551 F.3d 616, 629 (7th Cir. 2008). The BIA has previously “explained that ‘persecution on account of membership in a particular social group’ refers to ‘persecution that is directed toward an individual who is a member of a group of persons all of whom share a common, immutable characteristic…such as…kinship ties.” Matter of C-A-, 23 I&N Dec. 951, 955 (BIA 2006) (quoting Matter of Acosta, 19 I&N Dec. 211, 233-34 (BIA 1985)). “It has been said that a group of family members constitutes the ‘prototypical example’ of a particular social group.” INS, Asylum Officer Basic Training Course: Eligibility Part III: Nexus 21 (Nov. 30, 2001) (quoting Sanchez-Trujillo v. INS, 801 F.2d 1571, 1576 (9th Cir. 1986)). “There can, in fact, be no plainer example of a social group based on common, identifiable and immutable characteristics than that of the nuclear family.” Gebremichael v. INS, 10 F.3d 28, 36 (1st Cir. 1993). Indeed, the BIA found that L-E-A-’s membership in his family constituted a particular social group. Instead, the key issue was whether the harm he experienced or feared was on account of his membership in that particular social group. The BIA in L-E-A- upheld the IJ’s decision below, opining that “any motive to harm the respondent because he was a member of his family was, at most, incidental…[Rather,] the cartel’s motive to increase its profits by selling contraband in the store was one central reason for its actions against the respondent and his family.” 27 I&N Dec. at 46.

As we and others have previously discussed, the BIA missed the mark in L-E-A-. The BIA in L-E-A- critically notes that “[i]f the persecutor would have treated the applicant the same if the protected characteristic of the family did not exist, then the applicant has not established a claim on this ground.” 27 I&N Dec. at 44. Under this reasoning, L-E-A- should have been granted asylum. But for L-E-A-’s familial relationship with his father, he would not have been targeted by the cartel. In other words, despite their motivation of wanting to sell drugs at his father’s store, the cartel’s motivation in targeting L-E-A- was to get to his father, thus satisfying the nexus criteria. There is a reason why the cartel did not target the father’s neighbor – because the neighbor does not have a close, i.e. family, relationship to him. That the cartel ultimately had monetary motivations is irrelevant in the analysis of why they persecuted L-E-A-.

It is unclear how the Acting AG, or the incoming AG (anticipated to be William Barr), will rule in a case that has already made the obstacles more onerous for asylum-seekers. Given the administration’s animus towards asylum-seekers, it is unlikely that they seek to redress the problems with the BIA’s holding. Rather, it is likely that the Acting AG seeks to build upon the BIA’s flawed reasoning and make it even more difficult for those to flee persecution and obtain asylum. The BIA in Matter of L-E-A- affirmed, without question, that kinship ties are inherently a particular social group. Given the wording of the Acting AG’s question Matter of L-E-A-, 27 I&N Dec. 494 (A.G. 2018), he will likely attack the case on this front.

As outlined by the BIA in Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017), and reiterated above, there is no clearer definition of particular social group than kinship ties. To be granted asylum based on one’s membership in a particular social group, the applicant must show that the group is “(1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.” Matter of A-R-C-G-, 26 I. & N. at 392. As set forth in Matter of Acosta, 19 I&N Dec. 211, 212 (BIA 1985), a “common immutable characteristic” is defined as “a characteristic that either is beyond the power of the individual members of the group to change or is so fundamental to their identities or consciences that it ought not be required to be changed.” Under Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014) and clarified in Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014), the social group must be defined with “particularity,” or be defined by boundaries of who is actually a member of the group. Finally, as explained in Matter of W-G-R-, “social distinction” is defined as the ‘recognition’ or ‘perception’ of the particular social group in society. 26 I&N Dec. at 216. Family units very clearly satisfy each of these requirements, where you cannot change who your family is, where who members of your family are can be defined with particularity, and where others in society can recognize you as a member of your family. A challenge to the family unit particular social group would undermine the construction of nearly all particular social groups thereafter.

Once formulating one’s social group, the applicant must also show that their persecution was on account of their membership in the social group (the “nexus requirement”), and that the government in the country of origin is unable or unwilling to afford them protection from such persecution. As we’ve previously argued, the Courts need to clarify the nexus requirement. In Matter of L-E-A-, for example, the nexus analysis needed to have focused specifically on why L-E-A- was targeted and persecuted – not what the cartel’s ultimate aim was after targeting him. Clarification on this issue is imperative for uniform adjudication of particular social group asylum cases. Additionally, given AG Sessions’ holding in Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018), future courts and advocates will need to clarify the state protection analysis, especially when the persecution is carried out by private actors. In particular, advocates will need to demonstrate through country conditions reports and expert testimony that the country of origin is unable or unwilling to provide protection from these private actors. In Matter of L-E-A- in particular, one can demonstrate that the cartel acts as a quasi-government in the respondent’s town, and that the police do not have control (or choose not to have control) over them.

Although the legitimacy of Acting AG Whitaker’s appointment, and thus his self-referral of cases, has been called into question, advocates must instead focus their efforts on litigating the asylum requirements. The constant self-referral of cases and unilateral, sweeping changes to the law have been tiresome for immigration advocates; however, we should use these opportunities to litigate existing, flawed case law to create a more robust asylum framework so that we can actually protect those fleeing violent persecution.”

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

Sophia is absolutely correct!

Like Sessions, Whitaker combines a White Nationalist agenda with some poor intellectual and lawyering skills. Not surprising, because lawyers advancing a racially biased restrictionist agenda are obviously driven by something outside, and usually not even very closely related to, the law and conventional human values.

Their arrogant and outrageous disregard of the law and facts provides a good opportunity for asking Article III Courts and Congress to finally adopt and enforce a legally appropriate, generous, humanitarian approach to asylum law as was directed by the Supremes back in INS v. Cardoza-Fonseca. Notwithstanding some meaningful advances over the three decades since that decision, the “promise of Cardoza” for U.S. asylum law has never been fully recognized.

And this Administration is hell-bent on rolling back even the modest advances that had been painstakingly made. Now is the time to make asylum law work as it was supposed to! Human lives and our integrity as a nation of laws and values depend upon it!

Join the New Due Process Army and fight to hold the “Department of Injustice” and its biased and deviant officials accountable to the law and to history for their naked racism, extreme intellectual dishonesty, failure to uphold the rule of law, and cowardly contempt for human life! Yes, it’s annoying. Yes, it’s hard work! But, in the end it will be worth it to know that you did something worthwhile in your life. And there are few things more worthwhile than protecting the rights and saving the lives of the most helpless, exploited, and vulnerable among us.

For those of you new to “Courtside,” both Judge Jeffrey Chase and I have previously written about how the BIA stood the law of causation on its head to deny a very grantable asylum claim in Matter of L-E-A-. https://wp.me/p8eeJm-UI

https://wp.me/p8eeJm-UI;

Indeed, the Fourth Circuit later absolutely trashed the BIA’s L-E-A- rationale on nexus in Salgado-Sosa v. Sessions, without mentioning L-E-A- by name. https://wp.me/p8eeJm-2aS.

The Fourth and other Circuits have also been very strong in recognizing “family” as a PSG. Indeed, one of the seminal “family-based” cases was Crespin-Valadares v. Holder, 632 F.3d 117, 128 (4th Cir. 2011). That was a case where the Fourth Circuit reversed and slammed the BIA while affirming my finding as an Immigration Judge that a family-based PSG was cognizable. In other words, I was right and the BIA was wrong. But, hey, who’s keeping track?

Now, Whitaker seeks to make things even worse. We should all be totally outraged that the Immigration Courts are under the control of the DOJ and political officials who are completely unqualified to sit in a quasi-judicial capacity. It’s “Clown Court;” but, in this case, the “clowns” are threatening innocent people’s lives!🤡

PWS

12-13-18

EOIR CLIMBS ON TRUMP’S WHITE NATIONALIST DEPORTATION EXPRESS BY UNFAIRLY TARGETING REFUGEE FAMILIES — Read The Latest Analysis From Hon. Jeffrey S. Chase!

https://www.jeffreyschase.com/blog/2018/12/13/eoirs-creates-more-obstacles-for-families

Dec 13 EOIR’s Creates More Obstacles for Families

In a November 16 memo to immigration judges, EOIR’s Director, James McHenry, announced that after a nearly two-year reprieve, “Family Unit” cases are again being prioritized, under conditions designed to speed them through the immigration court system, ready or not, with or without representation, due process be damned.

“Family Unit” is a term created by the Department of Homeland Security as an “apprehension classification” which consists of an adult noncitizen parent or legal guardian, accompanied by his or her own juvenile noncitizen child. Of course, many of the highly-publicized cases of children separated from their parents at the border fall within this category.

Under the new procedures, all Family Unit (or in EOIR parlance, “FAMU”) cases must be completed within 365 days of the commencement of removal proceedings. Just as a point of comparison, many immigration judges in New York are presently setting non FAMU cases for hearings in late 2021. So EOIR wants FAMU cases to be completed in a third of the time of other cases.

In order to accomplish this, such cases (at least in the New York court) are to be scheduled for their first Master Calendar hearing before an immigration judge within 30 days of the court’s receipt of the charging document that commences proceedings. The parent and child are then to be given only one continuance of 40 to 45 days in order to try to obtain counsel. After that, the cases are to be set for a final merits hearing another five to six months out. That only adds up to about 8 months, I imagine to allow another four month “safety zone” just in case. Immigration judges are further directed to make sure they complete the cases in 365 days, and to get them done as soon as possible.

To further increase the odds of success, the FAMU cases are being assigned to brand new immigration judges, for the following reasons. First, the new judges are mostly former ICE prosecutors. Secondly, the new judges are on probation for two years, making them more likely to obey rules in a desire to keep their jobs. The new judges have also just been through training at which they were instructed by the Attorney General that sympathy has no place in their work, that those fleeing domestic violence and gang violence are undeserving of asylum, and that it is more important for them to be efficient than fair.

Judges are expected to bump non-FAMU cases if necessary to meet the completion goals. In other words, those who have patiently waited three years or longer for their day in court, and who have their evidence and witnesses lined up in the hopes of finally obtaining legal status in this country, now run the risk of having their hearings bumped for who knows how much longer in order to speed through the case of a parent and child who likely need more time to obtain counsel and prepare their claims.

I have checked with legal service providers in New York City, and have been told that the 40 to 45 days being provided by EOIR is generally not a sufficient amount of time for the respondents in such cases to retain counsel. Outside of large cities like New York, this time frame is even less realistic, due to the fewer number of NGOs receiving funding to do this type of work.

The new policy therefore lessens the likelihood that families will be able to be represented in their removal proceedings. Unfortunately, recent changes in the law achieved through the certification of cases by the Attorney General (which has continued even under interim AG Whitaker) has made the need for legal representation far more important. It is a daunting task for an unrepresented victim of domestic violence to clearly state a detailed particular social group, defined by an immutable characteristic (but not by the feared harm), and establishing the group’s particularity and social distinction in society; to then establish that the persecutor was motivated by her membership in such group; and then demonstrate both that the government was unwilling or unable to protect her and that she could not reasonably relocate within her country

As I noted in an earlier blog post, https://www.jeffreyschase.com/blog/2018/1/26/0sg8ru1tl0gz4becqimcrtt4ns8yjz the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status states at paragraph 28 that “a person is a refugee within the meaning of the 1951 Convention as soon as he fulfills the criteria contained in the definition…Recognition of his refugee status does not therefore make him a refugee but declares him to be one. He does not become a refugee because of recognition, but is recognized because he is a refugee.” So the above requirements for particular social group claims are essentially an obstacle course that someone who is already a refugee must negotiate in order to have our government grant them the legal status to which they are entitled. The recent AG decisions have increased the difficulty of the course, and the new FAMU directive will mean that these most vulnerable refugees will have to negotiate the course at breakneck speed, and likely without the assistance of counsel. It bears noting that whatever particular social group definition the asylum-seeker offers the judge is crucial; if it contains one word too many or too few, pursuant to a recent BIA precedent decision, it cannot be corrected on appeal, even if by that stage the applicant has managed to procure representation.

Through these methods, the present administration is playing a game which will result in fewer grants of asylum. The lower grant rate will then allow the administration to claim that those seeking refuge at our southern border are not really refugees, which in turn will allow them to create even greater obstacles, which will in turn lead to even fewer asylum grants.

Tragically, the stakes in this game are high. A recent Washington Post article https://www.washingtonpost.com/graphics/2018/local/asylum-deported-ms-13-honduras/?fbclid=IwAR1vLkNYocAUDPMpfHYgCGKq9jgudMgoTZE5_akRomir-Xk-u4US3crFX88&utm_term=.b7a523fb913e reported on an asylum-applicant who, after being deported to Honduras, was killed by MS-13, just as he had predicted during his hearing in immigration court. The same article stated that Columbia University’s Global Migration Project has tracked more than 60 deportees who were harmed or killed upon return to their countries. As the process is sped up, the number of mistakes leading to wrongful deportations will only increase.

As a former immigration judge, I can say with authority that it takes time and effort to reach the correct result in these cases; furthermore, the accuracy of asylum decisions greatly increases with the involvement of those with knowledge of the legal requirements. In its speed over accuracy approach, and its gaming of the system to deny more asylum claims for its own political motives, the present administration is telling refugee families that only the first and last letters of “FAMU” apply to them.

Copyright 2018 Jeffrey S. Chase. All rights reserved.

JEFF CHASE

Dec 8 Interpreting Pereira: A Hint of Things to Come?

UPI ANALYSIS OF LATEST EOIR ASYLUM STATS ACTUALLY SHOWS THAT MANY FROM NORTHERN TRIANGLE (PARTICULARLY EL SALVADOR) HAVE VALID CLAIMS FOR PROTECTION, BUT SESSIONS’S POLITICAL ACTIONS AND CONTROL OVER U.S. IMMIGRATION JUDGES ARTIFICIALLY FORCED THE GRANT RATE DOWN! – It’s Time For An Independent “Article I” U.S. Immigration Court & A Level, Apolitical Playing Field For Asylum Applicants!

https://apple.news/AHg-L3Cy-SEG6Gi9SR1rk_w

Patrick Timmons reports for UPI:

Asylum denials jump; immigration judges’ discretion attacked

MEXICO CITY, Dec. 10 (UPI) — New data about the number of asylum applications granted by the United States this year show how the Trump administration has dramatically narrowed asylum granted to people fleeing persecution in their home countries — though significantly more Central Americans have been admitted over the past decade.

“Asylum acceptance rates are at a 20-year low, and the recent TRAC data confirms that,” said Sarah Pierce, policy analyst for the non-partisan and independent Migration Policy Institute, referring to data from the Transactional Records Access Clearinghouse.

For fiscal 2018, TRAC’s statistics show immigration judges denied 65 percent of asylum claims — up from 42 percent in 2017. There were 42,224 asylum cases decided in 2018, an 89 percent increase over the total number of cases decided in 2016.

Due to a backlog in the immigration system, some asylum seekers have been able to live in the United States for three years to five years while their claims are adjudicated, a situation the administration has tried to address by changing some rules and practices.

“This administration is trying to address people who are trying to take advantage of the system. But unfortunately this administration’s approach tends to punish asylum seekers rather than just specifically looking at those individuals who are taking advantage of the system,” Pierce said.

The administration’s broad approach to all asylum seekers has had the effect of narrowing asylum by increasing immigration judges’ workloads by setting quotas, ending discretionary decision making and rewriting immigration rules to deny relief to asylum seekers fleeing domestic and gang violence.

Immigration experts told UPI the administration’s changes to how immigration judges work has spiked a general increase in asylum denials.

Northern Triangle

There has been an increased flow of asylum seekers from Central American countries, particularly those from the Northern Triangle countries of Honduras, El Salvador and Guatemala.

And the fact that more of them are getting approved shows they are “sincere humanitarian migrants,” Pierce said.

A new TRAC tool shows Central Americans now fare better than in previous years. Salvadorans receive asylum in rates higher than Guatemalans or Hondurans. In 2004, Salvadorans’ asylum approval rate was 6 percent. In 2018, it rose to 23 percent. Guatemala’s grant rate in 2018 was 18 percent, the lowest of three countries, with Honduras at 20 percent.

Pierce said that changes in immigration law under the Obama administration help account for significant changes in asylum approval rates for people fleeing the Northern Triangle. Immigration judges over the past decade were more accepting of domestic and gang violence as grounds for asylum, with successes helping to develop case law.

The rise in asylum for Salvadorans has to do with direct violent threats, rather than domestic violence, which is a common claim among Guatemalan asylum seekers, or gang violence, common among Hondurans.

“The circumstantial evidence suggests El Salvador tends to have the most direct violent threats,” said Everard Meade said, director of the Trans-Border Institute at the University of San Diego.

Data comparing the Northern Triangle countries’ asylum seekers’ claims is hard to come by. However, Meade said in 2014 the United Nations High Commissioner for Refugees issued its report, “Children on the Run,” about unaccompanied Central American minors highlighting direct violence in El Salvador as a reason for flight. UNHCR interviewed almost 400 children with 66 percent of El Salvadorans reporting flight for threat of direct violence Guatemalans reported 20 percent, Hondurans at 44 percent.

But Central Americans’ asylum approvals might be a blip. Former Attorney General Jeff Sessions this year removed domestic violence and gang violence as grounds for asylum in immigration court proceedings.

“These private acts of violence claims are typically the ones we are seeing from the Northern Triangle,” Pierce said, “including El Salvador.”

Discretionary decision-making

The general picture, however, is that more people are failing to win asylum than ever before because the Trump administration has changed how judges work.

“The asylum decisions and denial data for fiscal year 2018 is really about discretionary relief that used to be available under [President Barack] Obama but is not available under [President Donald] Trump anymore,” Meade said.

Prior to Trump-Sessions, immigration judges used to employ a form of discretionary relief called administrative closure. This was a form of temporary protection against deportation that did not grant any permanent immigration status, unlike asylum, which is a pathway to citizenship.

“Immigration judges had people coming before them who had really compelling stories but those stories did not necessarily cleave close enough to the asylum standard to grant them asylum. But the judges really felt they did not want to return them to dangerous situations, either. They also felt they were people who were credible, who had told the truth, and so they were administratively closing their cases,” Meade said.

The practice of administrative closure ended this year with a Sessions memorandum.

“Administrative closure was a widespread practice and that is exactly what explains how the denial rate can go up so dramatically without the grant rate going down. Actually, the grant rate has gone up. In defense of the institutions, the modest increase in the grant rates suggest people have some really good asylum claims,” Meade said.

The situation in El Paso

Carlos Spector, a veteran El Paso immigration lawyer, said that although the asylum rate has increased nationwide, there is little evidence of successful asylum claims in El Paso’s immigration court.

“This year, I have lost some asylum cases that had really compelling claims,” Spector said, adding that 98 percent of his clients are Mexican.

Mexicans generally do not fare well in immigration court. In 2018, 14.5 percent of Mexican asylum seekers received asylum. Part of the reason is that immigration judges were administratively closing cases, protecting from deportation but stopping short of permanent relief.

For 2018, the latest TRAC data reveal El Paso’s immigration judges reviewed 297 cases, granting asylum 47 times. In 2017, they reviewed 148 cases and granted asylum 12 times. These low asylum rates, some of the lowest in the nation, mean El Paso’s immigration judges have a reputation for enforcing law and order, Spector said.

“I’ve been tracking asylum cases of Mexican nationals for the past few years and it is more or less the same rate along the border from San Diego to Brownsville,” Spector said.

“Because we are on the border and these judges are political appointees and these judges do understand the government’s mandate of holding or guarding the border and they take that law enforcement approach,” Spector said, “the denials are much, much higher on the U.S.-Mexico border, and they always have been.”

TRAC compiled asylum approval and denial statistics for fiscal year 2018, the first full year of Trump’s presidency, based on Freedom Of Information Act requests to the Justice Department’s Executive Office of Immigration Review, the agency charged with adjudicating defensive asylum claims in immigration court.

Photoby Ariana Drehsler/UPI : Jose Hernández, 17, styles his hair at El Barretal shelter in Tijuana, Mexico, on Dec. 9, 2018.

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

Just as I have been saying all along! The Trump Administration’s claim that low asylum approval rates indicate the system is being “gamed” by applicants is a bogus cover up. Even taken at “face value,” a 20-25% chance of being granted asylum hardly shows a system being “gamed.” At most, it shows that Immigration Judges are applying a much more restrictive standard than Asylum Officers considering “credible fear” claims at the border. Far from being “gaming,” that would be consistent with (although not necessarily required by) an intentionally much more generous standard for getting a fair adjudication in a removal hearing (“passing credible fear”) than for actually achieving relief (“a favorable order from an Immigration Judge after a full merits hearing”).

But, what really appears to be going on here are artificially restrictive, politically inspired “tweaks” to asylum law and procedures specifically intended to disadvantage those in danger from the Northern Triangle. Additionally, inappropriate detention policies are intended to force many more applicants to proceed without lawyers or to abandon appeals — making it like “shooting fish in a barrel” for those Immigration Judges with a predilection to deny relief who are under great pressure to “produce” more final orders of removal. It also appears that a disturbing number of Immigration Judges along the Southern Border view themselves as agents of DHS and Administration enforcement policies, rather than as fair and impartial decision makers committed to giving asylum seekers the “benefit of the doubt” under the law.

This all adds up to what appears to me to be a significant “cover up” of politicized wrong-doing and a mass denial of Due Process orchestrated by the Administration through the Department of Justice.

Why are the Administration, DHS, and DOJ so afraid of giving asylum applicants fair access to lawyers, time to prepare and document their cases, and timely fair hearings before impartial quasi-judicial adjudicators whose sole focus is getting the right substantive result, rather than achieving some type of assembly line enforcement-related “production quotas?”

Why waste time on “gimmicks” — most of which eventually prove to be illegal, ineffective, or both — rather than concentrating on getting to the merits of these cases in a timely manner and “letting the chips fall where they may.”

Surely, among a largely artificially created 1.1 million case “backlog” there are hundreds of thousands of cases that could be “administratively closed” as an exercise of prosecutorial discretion to allow more recently arrived cases to be timely heard without increasing backlogs or creating further wasteful “Aimless Docket Reshuffling.”

Eventually, the “mask will be ripped off” what’s really happening in our U.S. Immigration Court system. When that happens, the results could be ugly and damaging to the reputations of those orchestrating and enabling what certainly appears to be a disgraceful and intentional miscarriage of justice!

PWS

12011-18

WINNING ASYLUM & SAVING LIVES IN THE “ERA OF A-B-“ – Seven Steps To Success

WINNING ASYLUM

WINNING ASYLUM & SAVING LIVES IN THE “ERA OF A-B-“ – Seven Steps To Success*

By Paul Wickham Schmidt

United States Immigration Judge (Retired)

NEW YORK CITY BAR

DECEMBER 4, 2018

Good evening, and thanks so much for inviting me. In the “old days,” I would have started with my comprehensive disclaimer. But, now that I’m retired, I’m just going to hold the Bar Association, my fellow panelists, and anyone else of any importance whatsoever “harmless” for my remarks tonight. They are solely my views, for which I take full responsibility. No sugar-coating, no bureaucratic doublespeak, no “party line,” no BS – just the unvarnished truth, as I see it!

“We’ve had situations in which a person comes to the United States and says they are a victim of domestic violence; therefore, they are entitled to enter the United States. Well, that’s obviously false but some judges have gone along with that.” “Good lawyers, using all of their talents and skill, work every day—like water seeping through an earthen dam—to get around the plain words of the INA to advance their clients’ interests. Theirs is not the duty to uphold the integrity of the act. That is our most serious duty.”

Those, my friends, are obviously not my words. They are the words of former Attorney General Jeff Sessions. Incredibly, this totally biased, xenophobic, misinformed, and glaringly unqualified individual was in charge of our U.S. Immigration Court system which helps explains why it is such a total mess today. And Acting Attorney General Whitaker’s certification of two cases yesterday promises a continuation of improper political interference with the Immigration Courts in derogation of Due Process.

One of Sessions’s most cowardly and reprehensible actions was his atrocious distortion of asylum law, the reality of life in the Northern Triangle, and Due Process for migrants in Matter of A-B-. There, he overruled the BIA’s important precedent in Matter of A-R-C-G-, a decision actually endorsed by the DHSat the time, and which gave much need protection to women fleeing persecution in the form of domestic violence. Take it from me, Matter of A-R-C-G-was one of the few parts of our dysfunctional Immigration Court system that actually worked and provided a way of consistently granting much needed protection to some of the most vulnerable and most deserving refugees in the world.

Sessions is gone. But, his ugly legacy of bias and unfairness remains. Fortunately, because he was a lousy lawyer on top of everything else, he failed to actually accomplish what he thought he was doing: wiping out protection for refugee women, largely from Central America. That’s why it’s critically important for you, as members of the “New Due Process Army” to fight every inch of the way, for as long as it takes, to restore justice and to force our U.S Immigration Courts to live up to their unfulfilled, and now mocked, promise of “guaranteeing fairness and Due Process for all!”

I’m going to give you seven very basic tips for overcoming Matter of A-B-. I’m sure that my colleagues, who are much more involved in the day to day litigation going on in the courts than I am, can give you lots of additional information about addressing specific issues.

First, recognize that Matter of A-B- really doesn’t change the fundamental meaning of asylum.It just rejected the way in which the BIA reached its precedent in A-R-C-G-— by stipulation without specific fact-findings based on the administrative record. Most of it is mere dicta. On a case by case basis, domestic violence can still be a proper basis for granting asylum in many cases. Indeed, such cases still are being granted by those Immigration Judges committed to following the rule of law and upholding their oaths of office, rather than accepting Sessions’s invitation to “take a dive.”

Just make sure you properly and succinctly state your basis, establish nexus, and paper the record with the overwhelming amount of reliable country condition information and expert opinion that directly contradicts the bogus picture painted by Sessions.

Second, resist with all your might those lawless judges in some Immigration Courts who are using, or threatening to use, Sessions’s dictum in Matter of A-B- to deny fair hearings or truncate the hearing process for those claiming asylum through domestic violence.If anything, following the overruling of A-R-C-G-,leaving no definitive precedent on the subject, full, fair case-by-case hearings are more important than ever. Under Due Process, asylum applicants are entitled to a full and fair opportunity to present their claims in Immigration Court. Don’t let wayward, biased, or misinformed Immigration Judges deny your clients’ constitutional and statutory rights.

Third, keep it simple. Even before A-B-, I always said that any proposed “particular social group” (“PSG”) longer than 25 words or containing “circular” elements is D.O.A. I think that it’s time to get down to the basics; the real PSG here is gender! “Women in X country” is clearly a cognizable PSG. It’s undoubtedly immutable or fundamental to identity; particularized, and socially distinct. So, it meets the BIA’s three-part test.

And, “gender” clearly is one of the biggest drivers of persecution in the world. There is no doubt that it is “at least one central reason” for the persecution of women and LGBT individuals throughout the world.

Fourth, think political. There is plenty of recent information available on the internet showing the close relationship between gangs and the governments of the Northern Triangle. In some cases, gangs are the “de facto government” in significant areas of the country. In others, gangs and local authorities cooperate in extorting money and inflicting torture and other serious harm on honest individuals who resist them and threaten to expose their activities. In many cases, claiming political or religious persecution will be a stronger alternative ground than PSG.

Fifth, develop your record. The idea that domestic violence and gang-based violence is just “common crime” advanced by Sessions in A-B-is simply preposterous with regard to the Northern Triangle. Establish records that no reasonable factfinder can refute or overlook! Use expert testimony or expert affidavits to show the real country conditions and to discredit the watered down and sometimes downright false scenarios set forth in Department of State Country Reports, particularly under this Administration where integrity, expertise, and independence have been thrown out the window.

Sixth, raise the bias issue. As set forth in a number of the Amicus Briefs filed in Matter of A-B-, Sessions clearly was a biased decision maker. Not only had he publicly dismissed the claims of female refugees suffering from domestic violence, but his outlandish comments spreading false narratives about immigrants, dissing asylum seekers and their “dirty lawyers,” and supporting DHS enforcement clearly aligned with him with one party to litigation before the Immigration Courts. By the rules governing judicial conduct there was more than an “appearance of bias” here – there was actual bias. We should keep making the record on the gross violation of Due Process caused by giving a biased enforcement official like Sessions a quasi-judicial role.

Seventh, and finally, appeal to the “real” Article III Courts. What’s happening in Immigration Court today is a parody of justice and a mockery of legitimate court proceedings. It’s important to “open the eyes” of the Article III Judges to this travesty which is threatening the lives of legitimate refugees and other migrants.

Either the Article III’s do their jobs, step in, and put an end to this travesty, or they become complicitin it. There’s only one “right side of the law and history” in this fight. Those who are complicit must know that their actions are being placed in the historical record – for all time and for their descendants to know – just like the historical reckoning that finally is happening for so- called “Confederate heroes” and those public officials who supported racism and “Jim Crow.”

Now is the time to take a stand for fundamental fairness and decency! Join the New Due Process Army and fight to vindicate the rights of asylum seekers under our laws against the forces of darkness and xenophobic bias! Due process forever!

*This is not a “verbatim transcript” of what I said. Rather it is a compendium and extension of the “talking notes” that I used as a member of the panel.

THE GIBSON REPORT 12-10-18 – COMPILED BY ELIZABETH GIBSON, ESQUIRE, NY LEGAL ASSISTANCE GROUP

THE GIBSON REPORT 12-10-18 – COMPILED BY ELIZABETH GIBSON, ESQUIRE, NY LEGAL ASSISTANCE GROUP

TOP UPDATES

The Department of Justice just took a step to make asylum even more difficult for Central Americans

CBS: Although his asylum claim was rejected in 2013, then dismissed again in 2017 on appeal, courts affirmed that Mr. L-E-A-‘s claim that kinship constituted “membership in a particular social group” was legally sound.…Stripped of the legalese, in Monday’s filing Whitaker raised Mr. L-E-A-‘s immigration case as an opportunity to reconsider whether persecution based on family ties is an acceptable reason to be granted asylum in the United States. While a decision won’t be issued until at least late January, immigration advocates aren’t optimistic.

Asylum Decisions and Denials Jump in 2018

TRAC: Fiscal year 2018 broke records for the number of decisions (42,224) by immigration judges granting or denying asylum. Denials grew faster than grants, pushing denial rates up as well. The 42,224 decisions represented a 40 percent jump from decisions during FY 2017, and an 89 percent increase over the number of asylum decisions of two years ago.

The Trump Administration Is Considering Making People Pay For The Right To Apply For Asylum

Buzzfeed: The proposal, included in a not-yet-finalized draft regulation, would charge applicants, if they are already residing in the US, $50 to apply for asylum.

U.N. Approves Sweeping Deal on Migration, but Without U.S. Support

NYT: More than 160 countries adopted a sweeping international accord on migration on Monday…The text of the accord was approved in July by every member of the United Nations except the United States. But it has since gotten caught up in a nationalist movement in Europe that has centered on the issue of immigration and prompted around a dozen countries to reject the compact outright, or to pull back from endorsing it in Morocco.

AG Nominee William Barr

ImmProf: Westlaw research – checking out his mentions in Law Reviews & Journals. Here are a few choice snippets, arranged by topic.

Paying to Be Locked Up

The American Scholar: The contracts, corporate relationships, and procedures that CCA and GEO Group cultivated in running private prisons were all too easy to duplicate in private detention centers—never mind that the stated purposes of these two operations are fundamentally different. When we privatize functions the government has traditionally undertaken, such as incarceration and detention, corporations then set the rules governing human interaction, using profit rather than legal or human rights standards as their guidelines.

At least 4,000 migrants on way to U.S. have died or gone missing in last four years

AP: These Latin American migrants are among about 56,800 worldwide who died or disappeared over the same period, the AP found. While migrants everywhere face risks, the Mexico route holds the added danger of drug trafficking and gang violence. More than 37,000 people have gone missing throughout Mexico because of this violence, with the highest number in the border state of Tamaulipas, through which many migrants cross.

Migrants relocated to New Shelter in Tijuana

WaPo: Several thousand people are now sleeping in tents and bedrolls at the government-run shelter formerly known as El Barretal. It was set up over the weekend after a sports complex where migrants had been staying became overrun by trash and raw sewage during days of heavy rain.

After losing court battle, Pentagon will send green-card holders to recruit training

WaPo: The Pentagon will begin sending a backlog of thousands of green-card holders to recruit training, suspending a policy adopted by the Trump administration last year that required more-stringent background checks for some immigrants wanting to serve, according to two defense officials and an internal memo. See also: He’s a U.S. soldier deployed on the southern border — and an unlawful immigrant.

Court Defeat Leads DA to Change Tune on Jury-Trial Limits

CourthouseNews: Just a week after New York’s highest court found that the risk of deportation entitles noncitizens to jury trials on misdemeanor charges, the Bronx district attorney changed her tune Tuesday about seeking the U.S. Supreme Court’s review.

One Reason The US And Mexico Can’t Agree On Having Asylum-Seekers Wait In Mexico: The Trump Administration Itself Is Divided

Buzzfeed: The Justice Department wants asylum applicants turned away without any vetting of their claims. Homeland Security wants them screened for fears of staying in Mexico.

Death is waiting for him

WaPo: “Your honor, this is a difficult case,” Osorio told Judge John Bryant, asking to speed the process. “I represented their father, Santos Chirino Cruz. . . . I lost the case in this courtroom . . . . He was murdered in April.”

LITIGATION/CASELAW/RULES/MEMOS

The Council and Other Immigrant Rights Organizations File Amicus Brief Arguing Acting AG Whitaker Lacks Authority to Decide Immigration Case

AIC: In Matter of Negusie, former Attorney General Jeff Sessions referred to himself the question of whether coercion and duress are relevant to the application of the immigration statute’s persecutor bar for individuals seeking asylum or withholding of removal. Sessions resigned as Attorney General before adjudicating the case. Following his resignation, President Trump designated Sessions’ chief of staff, Matthew G. Whitaker, as Acting Attorney General. The amicus brief argues that Mr. Whitaker lacks the authority to adjudicate Matter of Negusie, or any other immigration matter.

Acting AG Refers BIA Case to Himself and Invites Amicus Regarding “Particular Social Group” Membership

The Acting AG referred a BIA decision to himself for review whether an individual may establish persecution on account of membership in a “particular social group” based on membership in a family unit. Amicus briefs are due by 1/18/19. Matter of L-E-A-, 27 I&N Dec. 494 (A.G. 2018) AILA Doc. No. 18120432

Acting AG Refers BIA Case to Himself and Invites Amicus Regarding Cancellation of Removal and Impact of Multiple DUIs

The Acting AG to review cancellation of removal eligibility and the impact of multiple convictions for driving while intoxicated or driving under the influence with regards to “good moral character.” Amicus briefs are due by 1/18/19. Matter of Castillo-Perez, 27 I&N Dec. 495 (A.G. 2018) AILA Doc. No. 18120437

BIA Holds North Dakota Statute Is Not a Crime of Child Abuse

Unpublished BIA decision holds that contributing to deprivation of a minor under N.D. Code 14-10-06(1) is not a crime of child abuse, child neglect, or child abandonment because it prohibits allowing a minor to enter a liquor store. Special thanks to IRAC. (Matter of Kuot, 12/6/17) AILA Doc. No. 18120509

CA1 Upholds IJ/BIA Denial for Lack of Corroborating Evidence to Support Otherwise Inconsistent Claims

The court held that substantial evidence supported IJ/BIA denial because petitioner failed to adequately corroborate vague and inconsistent testimony of past persecution with reasonably-available evidence. (Avelar-Gonzalez v. Whitaker, 11/15/18) AILA Doc. No. 18120435

CA1 Upholds BIA Denial of Untimely MTR for Ineffective Assistance of Counsel, Noting Failure of Due Diligence

The court held petitioner’s four and a half-year delay in filing MTR was failure to pursue case with the due diligence needed for equitable tolling and held it did not have jurisdiction to review due process claims not raised previously before BIA. (Pineda v. Whitaker, 11/19/18) AILA Doc. No. 18120436

CA3 Grants in Part and Denies in Part, Holds Child Pornography Conviction Per NJ Statute Is Not Aggravated Felony But Is Removable Ground of Child Abuse

The court overruled BIA, holding NJ Stat. Ann. 2C:24-4(b)(5)(b) is broader than its agg felony federal counterpart, but agreed with BIA that it matches federal (BIA) definition of “child abuse”; thus, petitioner is removable, but can request cancellation. (Salmoran v. Att’y Gen., 11/26/18) AILA Doc. No. 18120407

CA5 Affirms BIA’s Refusal to Reopen, Finds Petitioner Was Not Entitled to Actual Notice of Hearing and Failed to Rebut Presumption of Delivery

The court held BIA was not arbitrary in determining that because petitioner failed to correct address error on personally-served NTA, he was not entitled to actual notice; and that affidavit did not rebut presumption of delivery of unreturned NOH. (Mauricio-Benitez v. Sessions, 11/8/18) AILA Doc. No. 18120408

CA5 Vacates Deportation Order, Holds Petitioner Was a Naturalized Citizen—Not Alien—on Date of Conviction and Not Subject to Removal Statute

The court held BIA erred in misapplying §1227(a)(2)(A)(iii) to a naturalized citizen at time of conviction; it found, per Costello, that a denaturalization could not retroactively make petitioner an “alien as matter of law” at time of conviction. (Okpala v. Whitaker, 11/15/18) AILA Doc. No. 18120409

CA6 Upholds Denial of Cancellation for a “Habitual Drunkard”; Rejects Void for Vagueness Due Process and Equal Protection Challenges to the Term

The court held petitioner does not have liberty interest in discretionary cancellation, thus, does not reach void for vagueness argument; it also held “habitual drunkard” is rationally related to “good moral character” and does not violate equal protection. (Tomaszczuk v. Whitaker, 11/20/18) AILA Doc. No. 18120410

CA9 Votes to Deny Petitions for Rehearing and Rehearing En Banc for Class of Unrepresented Children in Removal Proceedings Claiming Right-to-Counsel

The court denied, pursuant to §1252(b)(9), the habeas petitions for a class of thousands of children seeking asylum, SIJS, or relief from removal who claim due process and statutory rights to appointed counsel during their removal hearings. (J.E.F.M. v. Whitaker, 11/13/18) AILA Doc. No. 18120411

CA9 Upholds BIA Denial of Cancellation, Finds Bribery a CIMT and “CIMT” Not Unconstitutionally Vague

The court held that bribery under 18 USC §666(a)(2) categorically matches federal definition of CIMT; it also held that “CIMT” is not unconstitutionally vague per Jordan and Tseung-Chu. (Martinez-de Ryan v. Whitaker, 11/16/18) AILA Doc. No. 18120412

CA9 Denies Government’s Motion for Stay of Restraining Order Enjoining Interim Final Rule on Asylum Claims

The court denied the government’s motion for a stay of the district court’s temporary restraining order enjoining the government from implementing the 11/9/18 interim final rule on asylum claims along the southern border. (East Bay Sanctuary Covenant v. Trump, 12/7/18) AILA Doc. No. 18121000

Case Challenging Interim Final Rule on Asylum Claims at the Southern Border

The Ninth Circuit issued an order denying the government’s motion for a stay of the district court’s 11/19/18 temporary restraining order enjoining the government from implementing the 11/9/18 interim final rule on asylum claims along the southern border. The court wrote that it “agree[s] with the district court that the Rule is likely inconsistent with existing United States law.” (East Bay Sanctuary Covenant v. Trump, 12/7/18) AILA Doc. No. 18110942.

NY App. Div. 2d Dept. Grants Habeas, Holds State/Local Law Enforcement Not Authorized by NY Law to Make Arrests for Civil Immigration Violations

The court held that sheriff’s additional 48-hour detention of a released prisoner pursuant to ICE detainer/warrant constituted a new arrest and sheriff did not have authority per NY law to effectuate such arrest for a civil immigration violation. (Francis v. DeMarco, 11/14/18) AILA Doc. No. 18120413

AILA and the Council Submit Amicus Brief Challenging BIA Decision on Motions to Reopen

AILA and the American Immigration Council submitted an amicus brief in the Ninth Circuit’s Amaya v. Whitaker, challenging the BIA decision that the reinstatement statute bars all motions to reopen. AILA Doc. No. 18120406

U.S. Representatives Send Letter to President Trump on “Remain in Mexico” Policy

On 11/30/18, Representatives Meng (D-NY), Price (D-NC), and Castro (D-TX) sent a letter to President Trump urging him to stop negotiations with incoming President of Mexico Andres Manuel Lopez Obrador on the “remain in Mexico” plan for asylum seekers. AILA Doc. No. 18120333

Announcements of ICE Enforcement Actions

ICE arrested 105 individuals during a five-day period in New Jersey. AILA Doc. No. 17041232

EOIR Data

EOIR Released Asylum Decision Rates by Nationality for FY2018

EOIR Released Statistics on FOIA Receipts

EOIR Released Statistics on Current UAC Cases Pending More Than Three Years

EOIR Released Median Pending Time and Median Completion Time for UAC Cases

EOIR Released Statistics on UAC In Absentia Removal Orders

EOIR Released Statistics on In Absentia Removal Orders in Cases Originating with a Credible Fear Claim

EOIR Released Statistics on Asylum Applicant In Absentia Removal Orders

EOIR Released Percentage of DHS-Detained Cases Completed Within Six Months for FY2018

EOIR Released Median Pending Times for Detained Cases

RESOURCES

New Tool to Help Advocates Assess the Public Charge Rule’s Impact on Individuals

UNHCR Caravan Update

Legal Interviewing and Language Access Film Project

Asylum Processing and Waitlists at the US-Mexico border

Old L-E-A- Overview from CLINIC

AIC: The Landscape of Immigration Detention in the United States

MPI: South American Immigrants in the United States

Practice Pointer: Matter of S-O-G- and F-D-B-

Requesting a Bond Hearing: How Detained Immigration Courts Vary with Scheduling Bond Hearings

Tips for Attorneys on Working with NVC

Crossing State Lines: A Practical Guide for Immigration Lawyers When Volunteering Their Services Out-of-State

CLINIC Resource: Practice Advisory on Matter of L-A-B-R-, 27 I&N Dec. 405 (A.G. 2018)

Immigration Enforcement in New York After People ex rel. Wells o.b.o. Francis v. DeMarco (attached)

EVENTS

12/11/18 Accidental Adjustments: How to Handle Wrongly Issued Status

12/17/18 20th Annual AILA New York Chapter Immigration Law Symposium

12/19/18Full Frontal’s Holiday Special “Christmas on I.C.E.”

12/19/18Case Management Strategies to Support Clients and Staff

12/20/18 Mental Incapacity: Merging Treatment and Enforcement

1/12/192019 Crimes & Immigration In New York City

2/7/19 Basic Immigration Law 2019: Business, Family, Naturalization and Related Areas

2/8/19 Asylum, Special Immigrant Juvenile Status, Crime Victim, and Other Immigration Relief 2019

03/12/19 AILA Spring Federal Court Litigation Conference

ImmProf

Monday, December 10, 2018

Asylum Denied, Death After Deportation

Human Trafficking Survivor Making it in NFL

Private prison companies treat immigrant detainees like convicted criminals—and reap huge profits from the people they hold

Saturday, December 8, 2018

More on AG Nominee William Barr

Friday, December 7, 2018

New Attorney General Nominee: William Barr

Death on the Border: Associated Press Estimate — At least 4,000 migrants on way to U.S. have died or gone missing in last four years

Immigration Article of the Day: “Sovereign Resistance to Federal Immigration Enforcement in State Courthouses” by Sarah Hill Rogerson

New Report: Asylum Processing and Waitlists at the US-Mexico border

Say It Ain’t So, Joe! Undocumented Service Workers Serve the President?

Report: The Landscape of Immigration Detention in the United States

Podcast on Birthright Citizenship

Thursday, December 6, 2018

Teaching Interviewing Skills in Immigration Context – Great New Resource by Laila Hlass & Lindsay Harris

Miami Law Explainer Podcast: Children of the Caravan

Google’s ESTA Problem

Immigration Article of the Day: Perceptions of Latinos and Political Stances by Lucila Figueroa

Wednesday, December 5, 2018

Editorial Cartoonist Visits TJ Caravan

Immigration Article of the Day: Colorism Against Legal Immigrants to the United States by Joni Hersch

Ninth Circuit Invalidates Criminal Statute Prohibiting “Encouraging” Noncitizen to Remain in the United States

Tuesday, December 4, 2018

South American Immigrants in the United States

Trump must obey decades-old asylum law

Emerging Immigration Scholars Conference February 15 and 16, 2019: UCLA Center for the Study of International Migration

Monday, December 3, 2018

Acting AG Matthew G. Whitaker Lacks Authority to Decide Immigration Case, Say Immigration Groups

Millennials & Immigration

Why Mexicans are the Most Successful Immigrants in America?

AILA NEWS UPDATE

http://www.aila.org/advo-media/news/clips

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

Elizabeth’s first item reminds us of the cruelty and stupidity of the Trump Administration. Rather than working with the UNHCR, NGOs, and the international community to solve the humanitarian problem of refugees fleeing the Northern Triangle, the Administration continues to focus on petty and likely illegal steps to “further shaft” vulnerable asylum seekers. Certainly not America’s finest moment. Not to mention that the Administration’s racist driven, unilateral, “enforcement only” approach to humanitarian flows of migrants is not solving the problem (in fact, making it worse) and is also losing in the Article III Courts on a regular basis.

It’s what we referred to in Government as “fraud, waste, and abuse!”

PWS

12-10-18

HON. JEFFREY S. CHASE: DHS’S ARROGANT “IN YOUR FACE” APPROACH TO “PEREIRA NOTICE” CASES APPEARS TO BE BACKFIRING WITH ARTICLE IIIs — US District Judge in Nevada Latest To Find That “Pereira Defective NTAs” Gave Immigration Judge No Jurisdiction Over Removal Case!

https://www.jeffreyschase.com/blog/2018/12/8/interpreting-pereira-a-hint-of-things-to-come

I haven’t posted for a while. I’ve been extremely busy, but there was something else: my response to so many recent events has been just pure anger. Although I’ve written the occasional “cry from the heart,” I don’t want this blog to turn into the rantings of an angry old man.

So I resume posting with a case that provides a glimmer of hope (and, hopefully, a hint of things to come?). Last week, the U.S. Court of Appeals for the Eleventh Circuit, a court generally known for its conservatism, issued an order granting an emergency stay of removal in the case of Manuel Leonidas Duran-Ortega v. U.S. Attorney General. As is common in such types of grants, the three-judge panel issued a decision consisting of two sentences, granting the stay, and further granting the request of interested organizations to allow them to file an amicus (“friend of the court”) brief.

What made this decision noteworthy is that one of the judges on the panel felt the need to write a rather detailed concurring opinion. Among the issues discussed in that opinion is the impact of the Supreme Court’s decision in Pereira v. Sessions (which I wrote about here: https://www.jeffreyschase.com/blog/2018/9/1/the-bia-vs-the-supreme-court) on Mr. Duran-Ortega’s case. As in Pereira, the document filed by DHS with the immigration court in order to commence removal proceedings lacked a time and date of hearing. In her concurring opinion, Judge Beverly B. Martin observed that under federal regulations, jurisdiction vests, and immigration proceedings commence, only when a proper charging document is filed. The document filed in Mr. Duran-Ortega’s case purported to be a legal document called a Notice to Appear. But as Judge Martin noted, “The Supreme Court’s recent decision in Pereira appears to suggest, as Duran-Ortega argues, that self-described “notice to appears” issued without a time or place are not, in fact, notice to appears” within the meaning of the statute.

Judge Martin (a former U.S. Attorney and Georgia state Assistant Attorney General) continued that the Pereira decision “emphasized” that the statute does not say that a Notice to Appear is “complete” when it contains a time and date of the hearing; rather, he quotes the Pereira decision as holding that the law defines that a document called a “Notice to Appear” must specify “at a minimum the time and date of the removal proceeding.” The judge follows that quote with the highlight of her decision: “In other words, just as a block of wood is not a pencil if it lacks some kind of pigmented core to write with, a piece of paper is not a notice to appear absent notification of the time and place of a petitioner’s removal proceeding.”

As this Reuters article reported (https://www.reuters.com/article/us-usa-immigration-terminations/u-s-courts-abruptly-tossed-9000-deportation-cases-heres-why-idUSKCN1MR1HK) enough immigration judges had a similar reading of Pereira to terminate 9,000 removal cases in the two months between the Supreme Court’s decision and the issuance of a contrary ruling by the Board of Immigration Appeals, in which the BIA’s judges, out of fear of then-Attorney General Jeff Sessions, chose appeasement of their boss over their duty to reach fair and independent decisions.

Judge Martin referenced that BIA decision, Matter of Bermudez-Cota, but stated: “This court need not defer to Bermudez-Cota if the agency’s holding is based on an unreasonable interpretation of the statutes and regulations involved, or if its holding is unambiguously foreclosed by the law…In light of Pereira and the various regulations and statutes at issue here, it may well be the case that deference is unwarranted.”

For those readers who are not immigration practitioners, attorneys with ICE (which is part of the Department of Homeland Security) and the Office of Immigration Litigation (“OIL”) (which is part of the Department of Justice, along with the BIA) have been filing briefs opposing motions to terminate under Pereira using language best described as snarky. A recent brief fled by OIL called the argument that proceedings commenced with a document lacking a time and date must be terminated under Pereira “an unnatural, distorted interpretation of the Supreme Court’s opinion,” and a “labored interpretation of Pereira.” A brief recently filed by ICE called the same argument an “overbroad and unsupported expansion of Pereira [which] is unwarranted and ignores the Court’s clear and unmistakable language.”

There is an old adage among lawyers that when the facts don’t favor your client, pound the law; when the law doesn’t favor your client, pound the facts; and when neither the law nor the facts favor your client, pound the table. I find the tone of the government’s briefs as sampled above to be the equivalent of pounding the table. The government is claiming that to interpret the Supreme Court’s language that “a notice that lacks a time and date is not a Notice to Appear” as meaning exactly what it says is an unnatural, distorted interpretation that is labored and ignores the clear language of the Court. The government then counters by claiming that the natural, obvious, clear interpretation is the exact opposite of what Pereira actually says.

So although it is just the view of one judge in one circuit in the context of a concurring opinion, it nevertheless feels very good to see a circuit court judge calling out the BIA, OIL, and DHS on their coordinated nonsense. Three U.S. district courts have already agreed with the private bar’s reading of Pereira, in U.S. v. Virgen Ponce (Eastern District of Washington); in U.S. v. Pedroza-Rocha (Western District of Texas); and just yesterday, in U.S. v. Soto-Mejia (D. Nev.). At this point, this is only cause for cautious optimism. But as an immigration lawyer named Aaron Chenault was articulately quoted as saying in the above Reuters article, for now, Pereira (and its proper interpretation by some judges) has provided “a brief glimmer of hope, like when you are almost drowning and you get one gasp.” Well said.

Copyright 2018 Jeffrey S. Chase. All rights reserved.

REPRINTED WITH PERMISSION

JEFF CHASE

UNITED STATES OF AMERICA, Plaintiff,
v.
RAUL SOTO-MEJIA, Defendant.

Case No. 2:18-cr-00150-RFB-NJK

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

December 6, 2018

ORDER

        Before the Court is Mr. Soto-Mejia’s Motion to Dismiss [ECF No. 21] the Indictment in this case, for the reasons stated below the Court GRANTS the Motion to Dismiss.

        I. Factual Findings

        Based upon the record, including the joint stipulation of fact submitted by the parties [ECF No. 41], the Court makes the following factual findings. Mr. Soto-Mejia was encountered by immigration officials on February 7, 2018 in California. On that same day, February 7, the Department of Homeland Security issued a Notice to Appear for Removal Proceedings (NTA) against Soto-Mejia. The Notice to Appear stated that Soto-Mejia was to appear before an immigration judge on a date and time “[t]o be set” and at a place “[t]o be determined.” Soto-Mejia was personally served with the Notice to Appear at 10400 Rancho Road in Adelanto, California, 92401. The Notice to Appear contained allegations and provided a potential legal basis for Soto-Mejia’s removal from the United States. The Notice to Appear was filed with the Immigration Court in Adelanto, California on February 12, 2018.

        On February 27, 2018 an order advancing the removal hearing was served on a custodial officer for Soto-Mejia. On February 27, 2018, a letter entitled “Notice of Hearing in Removal Proceedings” addressed to Soto-Mejia at the Adelanto Detention Facility on 10250 Rancho Road

Page 2

in Adelanto, California, 92301 was served on a custodial officer for Soto-Mejia. The letter indicated that a hearing before Immigration Court was scheduled for March 7, 2018 at 1:00 p.m. The Notice of Hearing did not reference the nature or basis of the legal issues or charges for the removal proceedings. The Notice of Hearing also did not reference any particular Notice to Appear.

        On March 7, 2018, the “Order of the Immigration Judge” indicates that Soto-Mejia appeared at the Immigration Court hearing and that he was ordered removed from the United States to Mexico. Soto-Mejia was deported on March 8, 2018. Subsequently, Soto-Mejia was encountered in the United States again and was ordered removed on March 19, 2018. The March 19 Order, as a reinstate of the prior order, derived its authority to order removal from the March 7 Order. The Indictment in this case explicitly references and relies upon the March 7 and March 19 removal orders as a basis for establishing a violation of 8 U.S.C. § 1326 by Soto-Mejia.

        II. Legal Standard

        Since a prior order of removal is a predicate element of 8 U.S.C. § 1326, a defendant may collaterally attack the underlying removal order.United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1047 (9th Cir. 2004). To prevail on such a collateral challenge to a deportation order, the individual must demonstrate that (1) he exhausted any administrative remedies he could have used to challenge the order (or is excused from such exhaustion); (2) the deportation proceedings deprived the individual of judicial review (or is excused from seeking judicial review); (3) the entry of the order was fundamentally unfair. 8 U.S.C. 1326(d); Ramos, 623 F.3d at 680.

        A removal order is “fundamentally unfair” if (1) an individual’s due process rights were violated by defects in the underlying proceeding, and (2) the individual suffered prejudice as a result. Ubaldo-Figueroa, 364 F.3d at 1048.

        III. Discussion

        The Defendant argues that this case must be dismissed because his criminal prosecution derives from a defective immigration proceeding in which the immigration court did not have

Page 3

jurisdiction to commence removal proceedings against him because the Notice to Appear initiating the proceeding was defective. He argues that the March 7 Order is thus void as the immigration court did not have jurisdiction to issue an order. He further argues that, as the initial March 7, 2018 deportation order is void, the subsequent reinstatement removal order of March 19, 2018 is also void as it derived its authority from the March 7 Order. Specifically, Soto-Mejia argues that the initial Notice to Appear that issued in his case did not include a time and location for the proceeding. Relying upon the United States Supreme Court’s recent decision in Pereira v. Sessions, 138 S.Ct. 2105 (2018), Soto-Mejia argues that a notice to appear must contain a location and time for a removal hearing in order to create jurisdiction for the immigration court. Id. at 2110. As the Notice to Appear in this case did not contain such information, the immigration court, according to Soto-Mejia, did not have jurisdiction to issue a removal or deportation order.

        The government responds with several arguments. First, the government argues that Soto-Mejia waived his argument regarding jurisdiction—claiming that it is personal rather subject matter jurisdiction which is at issue—by not raising a jurisdictional objection in the immigration proceeding and conceding to the immigration court’s jurisdiction by appearing. Second, the government avers that the immigration court’s jurisdiction is determined by the federal regulations and that the Notice to Appear in this case contained the information it must pursuant to those regulations to vest the immigration court with jurisdiction. See 8 C.F.R. §§ 1003.14(a), 1003.15(b) and (c). Third, the government argues that the holding in Pereia is limited to the cases in which a court must determine the validity of a particular notice to appear as it relates to the triggering of the “stop-time rule.” Id. at 2116. Fourth, the government argues that there is no prejudice to Soto-Mejia as any defect was cured by the Notice of Hearing and Soto-Mejia’s participation in the removal proceedings. The Court rejects all of the government’s arguments.

        A. The Removal Orders of March 7 and March 19 Violated Due Process As the Immigration Court Lacked Subject Matter Jurisdiction

        The Court finds that Supreme Court’s holding in Pereira to be applicable and controlling in this case. First, the Court finds pursuant to the plain language of the regulations that the jurisdiction of the immigration court “vests” only “when a charging document is filed with the

Page 4

Immigration Court.” 8 C.F.R. §1003.14. A “Notice to Appear” is such a “charging document.” Id. at § 1003.13. Relying upon the reasoning of Pereira, this Court finds that the definition of a “Notice to Appear” is controlled by statute and not regulation, as the Supreme Court expressly rejected in Pereira the regulation-based interpretation by the Board of Immigration Appeals in Matter of Camarillo, 25 I. & N. Dec. 644 (2011). Pereira, 138 S. Ct. at 2111-14. And, pursuant to Pereira, a Notice to Appear must include the time and location for the hearing. Id. at 2114-17. As the Notice to Appear in this case failed to include the time and location for the hearing, the immigration court did not have jurisdiction to issue its March 7 deportation order.

        The Court rejects the government’s argument that Soto-Mejia waived his jurisdictional argument by not raising it earlier and by participating in the underlying immigration proceeding. The government’s argument conflates personal jurisdiction with subject matter jurisdiction. Soto-Mejia’s argument is founded upon his assertion that the immigration court lacked subject matter jurisdiction and not personal jurisdiction. Subject matter jurisdiction is a limitation on “federal power” that “cannot be waived” so “a party does not waive the requirement [of subject matter jurisdiction] by failing to challenge jurisdiction early in the proceedings.” Ins. Corp. of Ireland v. Compagnie des Bauxites, 456 U.S. 694, 702-03 (1982). Moreover, the plain language of the regulation establishing the immigration court’s jurisdiction explicitly notes that an immigration court’s authority only “vests” with the filing of a “charging document” and the regulation makes no reference to a waiver exception to this requirement for subject matter jurisdiction. 8 C.F.R. § 1003.14(a).

        The Court also rejects the government’s argument that the holding in Pereira is limited to cases determining the applicability of the stop-time rule. As noted, the Supreme Court’s holding in Pereira was based upon the plain language of the text of 8 C.F.R. §§ 1003.13 and 1003.14 and 8 U.S.C. § 1229(a). Pereira, 138 S. Ct. at 2111-13. Section 1003.13 specifies which documents can constitute a “charging document” for immigration proceedings after April 1, 1997. The parties all concede in this case that the only document in this record that is a “charging document” is the Notice to Appear. Id. The Court in Pereira explained that the text of Section 1229(a) lays out the statutory definition of and requirements for a “Notice to Appear” which includes the time and

Page 5

location for the hearing. 138 S. Ct. at 2114. The Supreme Court unambiguously proclaimed: “A putative notice to appear that fails to designate the specific time or place of the noncitizen’s removal proceedings is not a ‘notice to appear under section 1229(a).“‘” Id. at 2113-14 (emphasis added). While the Supreme Court applied this definition to the determination of the applicability of the stop-time rule, the express language of this holding does not suggest any limitation on the Court’s definition of what is and is not a “Notice to Appear” under Section 1229(a) with respect to the requirement for the notice to contain a time and location.

        There is no basis to assume or conclude that the definition of a “Notice to Appear” under Section 1229(a) would be different without reference to the stop-time rule. That is because the fundamental question that the Supreme Court was answering in Pereira is whether a notice must contain the time and location of the hearing to be a “notice to appear” under Section 1229(a). 138 S. Ct. at 2113-17. In answering this foundational question, the Court did not rely upon the stop-time rule to determine the definition of a notice to appear under Section 1229(a). To the contrary, the Court spent considerable time explaining why consideration of the stop-time rule’s “broad reference” to all of the paragraphs of Section 1229(a) did not alter the fact that the essential definition of and requirements for the notice arise in the first paragraph. 138 S. Ct. at 2114 (noting that the “broad reference to §1229(a) is of no consequence, because as even the Government concedes, only paragraph (1) bears on the meaning of a ‘notice to appear'”). This first paragraph requires that the notice contain the time and location for the removal proceeding.

        The Court is also unpersuaded that a defect in a “Notice to Appear” can be ‘cured’ as the government suggests by the filing and/or serving of the Notice of Hearing on Soto-Mejia. That is because such an argument is contrary to the plain text of the regulation, Section 1003.14(a), which unequivocally states that an immigration court’s jurisdiction only “vests” or arises with the filing of a “charging document.” A Notice of Hearing is not one of the “charging documents” referenced in Section 1003.13. A Notice of Hearing cannot therefore commence an immigration proceeding by subsequently providing a time and location for a removal hearing. Consequently, if the immigration court’s jurisdiction never arose because the Notice to Appear was invalid, then there is no proceeding in which a Notice of Hearing could properly be filed. There is nothing to cure.

Page 6

        Moreover, the Court also finds that the Notice of Hearing in this case did not reference a specific Notice to Appear. Indeed, the government conceded and the Court finds that the Notice of Hearing form does not generally, or in this case, reference a prior specific Notice to Appear and it does not contain information about the legal issues or charges which serve as a basis for the removal proceedings. The two documents only common identifying information is the A-file number of the particular person—Soto-Mejia in this case. This means that if an individual had multiple potential charges or legal issues related to his immigration status, the Notice of Hearing could not inform him about which charges were at issue in the upcoming hearing and the Notice of Hearing could be filed months or years after the Notice to Appear. Indeed, this is the very reason that the Supreme Court in Pereira rejected the argument that the “Notice to Appear” did not have to include the time and location of the removal proceeding, because that would defeat the ultimate objective of requiring notice—allowing the person to prepare for the hearing and potentially consult with counsel. 138 S. Ct. at 2114-15. As the Court noted, if there was no requirement for this information “the [g]overnment could serve a document labeled ‘notice to appear’ without listing the time and location of the hearing and then, years down the line, provide that information a day before the removal hearing when it becomes available.” Id. at 2115. Under such an interpretation “a noncitizen theoretically would have had the ‘opportunity to secure counsel,’ but that opportunity will not be meaningful” as the person would not truly have the opportunity to consult with counsel and prepare for the proceeding.” Id. As a Notice of Hearing, like the one here, is not explicitly connected to a particular Notice to Appear and the associated charges, the Court finds that it cannot serve to ‘cure’ a defective Notice to Appear such as in this case.

        B. The Defendant Suffered Prejudice¹

        The Court further finds that the Soto-Mejia suffered prejudice as a result of the defect in the underlying proceeding. Specifically, he was subjected to removal twice based upon the initial

Page 7

March 7 Order which the immigration court did not have jurisdiction to issue. The government’s argument that Soto-Mejia was not prejudiced because he “participated” in the removal proceedings misses the point. It is immaterial if he participated in the proceedings. He suffered prejudice by the issuance of the deportation orders because the immigration court lacked jurisdiction to order his removal on March 7, 2018.

        IV. Conclusion

        For the reasons stated, the Court finds that the March 7 and March 19 deportation orders are void due to the immigration court’s lack of jurisdiction. As these orders are void, the Court finds that the government cannot establish a predicate element—the prior removal or deportation of Soto-Mejia—of the sole offense in the Indictment. The Indictment in this case must therefore be dismissed.

        Accordingly,

        IT IS HEREBY ORDERED that the Motion to Dismiss is GRANTED. The Indictment in this case is DISMISSED. The Clerk of Court shall close this case.

        IT IS FURTHER ORDERED that, as this Court has no authority to detain Defendant Soto-Mejia pursuant to this case, he is ORDERED IMMEDIATELY RELEASED.

        DATED this 6th day of December, 2018.

        /s/_________

        UNITED STATES DISTRICT JUDGE

——–

Footnotes:

        ^1. The Court finds that Soto-Mejia is not required to have exhausted any possible administrative remedies, because (a) the Supreme Court decision in Pereira issued after his March 7, 2018 proceeding and (b) defects as to subject matter jurisdiction may be raised at any time. Compagnie des Bauxites, 456 U.S. at 702-03.

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

Unlike the BIA’s convoluted reasoning in Matter of Bemudez-Cota, 27 I&N Dec. 441 (BIA 2018), Judge Boulware’s analysis is very straightforward and complies with both the statutory language and the Supreme Court decision. What’s not to like about that?

As I’ve pointed out before, Sessions was so busy artificially “jacking up” the backlog and intimidating the Immigration Judges working for him that he never bothered to address the many solvable legal and administrative problems facing the Immigration Courts. That could mean not only more failed criminal prosecutions, but perhaps more significantly, could invalidate the vast majority of the 1.1 million case backlog that Sessions artificially increased with his short-sighted, racially motivated “gonzo” polices and interpretations.

And Whitaker is following in his footsteps by taking issues off the “restrictionist checklist” for screwing asylum seekers and migrants, rather than addressing the real legal and administrative deficiencies that make the Immigration Court a parody of justice in America.

Sadly, I wouldn’t expect any improvement under Barr, whose recent totally revolting “paean to Jeff Sessions” (co-authored with former GOP AGs Meese & Mukasey) projects that until we get “regime change,” justice in America will continue to be reserved for well-to-do straight evangelical White men. https://www.washingtonpost.com/opinions/jeff-sessions-can-look-back-on-a-job-well-done/2018/11/07/527e5830-e2cf-11e8-8f5f-a55347f48762_story.html?utm_term=.aaad2f8e6250

People of color and other vulnerable minorities should continue to beware of the “Department of Injustice.”

Here’s a very compelling article by ACLU Legal Director David Cole on why Bill Barr is likely to be a “Button Down Corporate Version of Jeff Sessions.” https://www.aclu.org/blog/criminal-law-reform/no-relief-william-barr-bad-jeff-sessions-if-not-worse

Darn, perhaps carried away with all the tributes to Bush I, I had hoped for a conservative, law enforcement oriented, but non-racist, non-White-Nationalist approach to immigration. Something like firm, but fair, unbiased, professional, and rationally managed. Guess that just isn’t going to happen under a GOP that has made racist appeals, xenophobia, false narratives, and anti-democracy part of its official agenda. I have a tendency to give everyone the “benefit of the doubt” at least until proven otherwise. I guess I have to alter that when dealing with anyone associated with today’s GOP.

That’s why the New Due Process Army must continue to be America’s bastion against the forces of darkness that threaten us all.

PWS

12-10-18

DEATH THREATS ARE A WELL-ESTABLISHED FORM OF PERSECUTION, EXCEPT @ THE BIA — 4th Cir. Tells BIA To Follow Precedent — Tairou v. Whitaker

TAIROU-4TH-DEATH THREATS

Tairou v. Whitaker, 4th Cir., 11-30-18

PANEL: GREGORY, Chief Judge, MOTZ, Circuit Judge, and William L. OSTEEN, Jr., United States District Judge for the Middle District of North Carolina, sitting by designation.

OPINION BY: CHIEF JUDGE GREGORY

KEY QUOTE:

Mocktar Tairou (“Tairou”) petitions this Court to review a final removal order by the Board of Immigration Appeals (“BIA”) denying his asylum and withholding of removal application and ordering his removal to Benin. Tairou contends that the BIA erred in finding that he was not subjected to past persecution and that he lacked a well- founded fear of persecution were he to return to Benin. Our binding precedent explicitly holds that a threat of death constitutes persecution. Because Tairou experienced multiple death threats in Benin, we hold Tairou established that he was subjected to past persecution. We therefore grant the petition for review and remand to allow the BIA to consider whether, in light of Tairou’s demonstrated past persecution, he has a well- founded fear of future persecution.

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

As I’ve pointed out before, beneath the hoopla and commotion caused by the direct assault on Due Process in Immigration Court conducted by the Trump Administration and Jeff Sessions, there is a deeper much more fundamental lingering problem. The BIA, a supposedly “expert tribunal,” consistently errors in the application of some of the most basic precepts of immigration law, particularly when it comes to recognizing and protecting the rights of asylum seekers.

Also, even without a finding of past persecution, the threats shown in this case clearly should have been more than enough to show a “reasonable likelihood” (10% chance) of future persecution that fulfills the (supposedly) generous “well founded fear” standard for asylum enunciated by the Supremes in INS v. Cardoza-Fonseca and endorsed by the BIA in Matter of Mogharrabi.

In other words, the BIA’s analysis in this case contravenes what we used to teach in basic training of Immigration Judges and Judicial Law Clerks and would have earned a student “minimal credit” on my “Refugee Law and Policy” final exam at Georgetown Law. This clearly is a system where quality and fairness are not only “Not Job 1” but aren’t even on the charts! Astoundingly, we have Appellate Judges serving on the “highest immigration tribunal” who are less competent and knowledgeable than most second year law students!

Even before Sessions, many asylum seekers were wrongfully denied by intentionally skewed interpretations and careless work by a tribunal that had long ago lost sight of its supposed vision of “being the world’s best administrative tribunal, guaranteeing fairness and due process for all.” Folks with good lawyers, the wherewithal to appeal, and the luck of the “right panel in the right circuit” might eventually obtain justice. Others had their lives ruined or even ended by a system operating in contravention of normal judicial precepts and Constitutional Due Process. Sessions “doubled down” on bias and “worst practices.”

How many must suffer and die before this system is brought into even minimal compliance with our laws, international conventions, and Constitution (let alone fulfilling its now mocked promise of becoming the “world’s best administrative tribunal guaranteeing fairness and Due Process for all”)?

Shame on those in Congress, the Executive Branch, and the Article III Judiciary who have either promoted or enabled this travesty of justice. And, shame on America for not holding all of these public officials accountable.

Join the New Due Process Army and fight to force all public officials to live up to their oaths of office!

PWS

12=07-18

THE HILL: MORE FROM NOLAN ON ASYLUM AT THE BORDER

https://thehill.com/opinion/immigration/419492-most-recent-court-order-on-immigration-will-have-serious-unintended

Nolan writes:

. . . .

Immigration advocacy organizations filed a motion asking a U.S. District Court in Northern California to stop the rule from going into effect.

The parties agreed that the proclamation did not render any alien ineligible for asylum. District Judge Jon S. Tigar found, therefore, that the case did not present the question of whether section 212(f) authorizes the president to directly limit asylum eligibility, so he did not include the proclamation in his decision.

This was a mistake. Although the proclamation doesn’t say that it is making the illegal crossers ineligible for asylum, it prevents them from getting relief of any kind that would allow them to enter the United States.

Judge Tigar granted a temporary restraining order which prohibits any action to continue the implementation of the rule and requires a return to the pre-rule practices for processing asylum applications.

. . . .

Judge Tigar’s restoration of pre-rule practices for processing asylum applications means that the illegal crossers will not be prevented from establishing a credible fear of persecution in the expedited removal proceedings, which will entitle them to an asylum hearing before an immigration judge.

But the immigration judge will have to deny their applications because asylum would permit then to enter the United States – and the proclamation bars their entry.

Moreover, the denial will make them statutorily ineligible for asylum if they file another asylum application later.

The first paragraph in the asylum provisions states that any alien who is physically present in the United States may apply for asylum, but the second paragraph provides three exceptions.

One of the exceptions states that asylum is not available to an alien who has filed a previous application that was denied, unless he can show a change in circumstances which materially affects his eligibility for asylum.

The rule that Judge Tigar suspended would have avoided this problem by preventing the asylum seekers from getting to a hearing before an immigration judge at which their applications would be denied.

It is possible that when the proclamation is terminated, a court will find that the termination materially affects asylum eligibility and therefore that the bar to future asylum applications no longer applies.

But the third paragraph provides that no court shall have jurisdiction to review any determination on the exceptions. The courts, therefore, will not be able to reinstate asylum eligibility on this or on any other basis.

It will be up to Trump to decide whether aliens whose applications are denied on account of the proclamation will be able to file another asylum application when the proclamation is lifted.

Indefinite detention

Illegal crossers, however, may be able to avoid persecution by applying for withholding of removal.

Relief under the withholding provision just prohibits sending an alien to a country where it is more likely than not that he would be persecuted. Consequently, withholding would not violate the entry prohibition in the proclamation.

The relief would apply only to the alien who is at risk of being persecuted. It would not include his spouse or children.

The proclamation, nevertheless, would be a serious problem for aliens who are granted withholding. It would prevent them from being released from detention while arrangements are being made to find a suitable country that is willing to take them, and that may not even be possible, depending on the case.

Asylum seekers who go to ports of entry instead of making an illegal crossing are experiencing problems. Nevertheless, it might be wise to try at least some of the ports of entry before resorting to an illegal crossing.

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

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

I’m not aware that anyone at DHS or EOIR has actually taken the legal position that Nolan has outlined. If they did, I would expect ACLU to have them instantly back before Judge Tigar on a contempt of court motion.

Also, that this theory hasn’t been pursued before Judge Tigar would make it unlikely that it would be argued before the Supremes, assuming that the case eventually winds up there (which I don’t). I do concede, however, that because the “Supremes are supreme” they basically can do whatever they want, including pursuing theories not argued or decided below. Most of the time, however, they prefer a more judicially (and politically) prudent approach.

I agree with Nolan’s bottom line that notwithstanding the inconvenience and the apparent slowdown by the Administration in asylum processing, asylum applicants would be well advised to patiently and peacefully wait in line to pursue their applications at ports of entry. There are also several cases pending which ultimately could provide some relief from both the intentional slowdown of processing at the ports of entry, and the skewing of the credible fear process against applicants from the Northern Triangle.

Stay tuned.

PWS

12-07-18

“CLOWN COURT:” NOT SO FUNNY WHEN THE SENTENCE IS DEATH — Administration’s Policies Aim At Making Already Broken System More Unfair, Arbitrary, Deadly!

https://www.washingtonpost.com/graphics/2018/local/asylum-deported-ms-13-honduras/?utm_term=.28c1c97d4da9&wpisrc=nl_buzz&wpmm=1

Maria Sacchetti reports for the Washington Post:

On the day he pleaded for his life in federal immigration court, Santos Chirino lifted his shirt and showed his scars.

Judge Thomas Snow watched the middle-aged construction worker on a big-screen television in Arlington, Va., 170 miles away from the immigration jail where Chirino was being held.

In a shaky voice, Chirino described the MS-13 gang attack that had nearly killed him, his decision to testify against the assailants in a Northern Virginia courtroom and the threats that came next. His brother’s windshield, smashed. Strangers snapping their photos at a restaurant. A gang member who said they were waiting for him in Honduras.

“I’m sure they are going to kill me,” Chirino, a married father of two teenagers, told the judge.

It was 2016, the last year of the Obama administration, and Chirino was seeking special permission to remain in the United States. His fate lay with Snow, one of hundreds of administrative judges working for the U.S. Justice Department’s clogged immigration courts.

Their task has become more urgent, and more difficult, under President Trump as the number of asylum requests has soared and the administration tries to clear the backlog and close what the president calls legal loopholes.

In the process, the White House is narrowing the path to safety for migrants in an asylum system where it’s never been easy to win.

Snow believed Chirino was afraid to return to Honduras. But the judge ruled that he could not stay in the United States.

Nearly a year after he was deported, his 18-year-old daughter and 19-year-old son arrived in the Arlington immigration court for their own asylum hearing. They were accompanied by their father’s lawyer, Benjamin Osorio.

“Your honor, this is a difficult case,” Osorio told Judge John Bryant, asking to speed the process. “I represented their father, Santos Chirino Cruz. . . . I lost the case in this courtroom . . . . He was murdered in April.”

When Osorio paused, the judge blanched and stammered.

“You said their father’s case — did I understand I heard [it]?” Bryant asked, eyes wide.

“No,” Osorio said. “In this court. Not before your honor.”

“Well good, because — all right, my blood pressure can go down now,” Bryant said. “Yeah. I mean. Okay.”

The immigration courts declined a request for comment from Snow. But in an essay published in USA Today — after Chirino was deported but before he was killed — the judge said deportation cases could be heartbreaking.

“Sometimes, there is not much to go on other than the person’s own testimony,” he wrote. “Yet this is not a decision we want to get wrong. I’ve probably been fooled and granted asylum to some who didn’t deserve it. I hope and pray I have not denied asylum to some who did.”

Santos Chirino was killed in April 2017 after he was denied asylum and deported.

Sitting in judgment

Chirino’s daughter and son, who spoke on the condition of anonymity out of concern for their safety, are among 750,000 immigrants facing deportation in the U.S. immigration courts. A growing number, like Chirino and his family, say they would be in grave danger back home.

A decade ago, 1 in 100 border crossers was seeking asylum or humanitarian relief, according to the nonpartisan Migration Policy Institute. Now it’s 1 in 3. The intensifying caseload — nearly 120,000 asylum cases filed last year alone, four times the number in 2014 — has upped the pressure on one of America’s most secret and controversial court systems.

Judges say they must handle “death-penalty” cases in a traffic court setting, with inadequate budgets and grueling caseloads. Most records aren’t public, most defendants don’t speak English and many don’t have lawyers to represent them. Cases often involve complex tales of rape, torture and murder. Approval rates can vary widely.

The Trump administration has imposed production quotas and ordered judges to close cases more quickly. They also must enforce a stricter view on who deserves protection in the United States.

Under federal immigration law, fear isn’t enough to keep someone from being deported. Asylum applicants must prove they are a target based on their race, religion, nationality, political opinion or membership in a particular social group, which for years has included being a victim of gang or domestic violence.

Before he was forced to resign Nov. 7 , Attorney General Jeff Sessions ruled that victims of gangs or domestic abuse generally would not qualify for asylum. He told a crop of new immigration judges that “the vast majority” of claims are invalid, and warned them not to rule based on a sense of “sympathy.”

“Your job is to apply the law — even in tough cases,” Sessions said.

Immigration Judge Lawrence Burman, the secretary-treasurer of the National Association of Immigration Judges , said “there’s a lot of unfairness” that could result from Trump’s crackdown. “We sometimes send people back to situations where they’re going to be killed,” said Burman, who serves at the Arlington immigration court. “Who wants to do that?”

The government doesn’t track what happens after asylum seekers and other immigrants are ordered deported. But Columbia University’s Global Migration Project recently tracked more than 60 people killed or harmed after being deported.

Judges’ powers are limited, immigration lawyers say, by outdated asylum laws that were designed to protect people from repressive governments rather than gangs or other threats. In Central America, many migrants flee towns where gangs and drug cartels are in control, not the government. If migrants don’t meet the strict definition of an asylee, judges must send them back to dangerous situations.

“It can be depressing. We’ve had judges quit because of that . . . or they just couldn’t stand it anymore,” Burman said. “You have to fit into a strict category, and if you don’t fit into a category, then you can’t get asylum, even if your life is in danger.”

Grafitti with a scratched-out MS-13 gang tag, near the home of Santos Chirino’s family in Virginia. Translated, the graffiti says, “If you are not of the [MS], don’t speak to me.”

‘Best of luck to you and your family’

At Chirino’s asylum hearing, Snow gently urged him to slow down as he testified from Farmville Detention Center in Virginia over the immigration court’s often glitchy version of Skype.

Osorio laid out evidence that his client’s life was in danger, according to an audio recording of the hearing. He explained how MS-13 gang members had stabbed Chirino with a screwdriver at a soccer game in Northern Virginia in 2002, and his testimony had helped send them to jail. At least one man was deported to Honduras. Now the U.S. government was trying to expel Chirino for his role in a 2015 bar fight, which he said started when gang members there snapped his photo.

Chirino told Snow he believed the police could protect him if he stayed in the United States. Osorio said gang members could easily “finish the job that they started” in Honduras, where gang violence is rampant and most serious crimes are never solved. Chirino’s friends and relatives echoed that belief in letters to the court. “Death is waiting for him,” wrote his uncle, Felipe Chirino, in Honduras.

“He can never go back,” wrote his brother, Jose Chirino, in Virginia.

U.S. Immigration and Customs Enforcement prosecutor Elizabeth Dewar expressed skepticism that Chirino was really in danger after so many years away from Honduras. Noting that Chirino never reported the threats against him to the police, she told Snow: “Those aren’t the actions of someone that is in fear for their life.”

Santos Chirino explains why he’s afraid to go back to Honduras

6:21

After more than two hours in court, Snow was unsure. Immigration judges often dictate their decisions immediately after a hearing. But Snow, an appointee of President George W. Bush, said cases increasingly were too complex for that, and he didn’t want to “rush this one through.”

“I’ll do it as quickly as I can,” he told the lawyers.

“Sir?” He turned to Chirino on the television screen. “There are some complicated issues and I feel to be fair to you I need to do a written decision. . . .

“Either way, no matter how the case goes, it’s unlikely I’ll see you again. So best of luck to you and your family in the future.”

Snow’s options were limited by a technicality. Chirino could not qualify for full asylum because he failed to apply for the protection within a year of arriving in the United States or soon after the gang attack.

But the judge could still halt Chirino’s deportation temporarily, under either the Immigration and Nationality Act or the Convention Against Torture, because of the danger he would face in Honduras.

Unlike asylum, those protections do not lead to U.S. citizenship. They also are much harder to grant. Applicants must prove that there’s a “clear probability” of harm — at least 51 percent. To win asylum, in contrast, they must prove there is a 10 percent chance they’ll be harmed if they are deported.

In a ruling three months later, Snow wrote that Chirino fell short of the high standard the law required: He hadn’t proved that MS-13 would find him in Honduras, or that they were even looking for him.

“The Court is sympathetic to the risks facing the respondent,” Snow wrote. But the evidence, he said, was “insufficient to support a clear probability” that he’d be killed.

‘Should I have pitched it a different way?’: Lawyer reflects on Santos Chirino’s asylum case

A different prison

Osorio urged Chirino to appeal. The construction worker told Osorio that he couldn’t stand being locked up. Chirino paced the closet-like meeting room where they met and sobbed through the glass when his family visited. Some detainees — especially hardened criminals — can withstand the months or years of detention it takes to win their cases, immigration attorneys say. Others unravel. Their hair falls out, they lose weight. Some have committed suicide.

When Chirino gave up, Osorio felt so disheartened he offered to represent his children free.

Chirino was deported Aug. 26, 2016. His brother Belarmino, also convicted in the bar fight, had been sent back a month earlier.

Their parents’ home became a different kind of jail.

“I fear for my life on a daily basis,” Chirino wrote in an affidavit to support his children’s cases, explaining that he rarely went outside. He said MS-13 would probably kill his children if they returned to Honduras “because they are part of my family.”

On April 9, 2017 — Chirino’s 38th birthday — he decided to venture out, relatives said. He loved soccer, and in Virginia he used to play on a team named after his hometown.

He and Belarmino went to the city of Nacaome to watch a game. After they arrived, family members said, the air filled with popping sounds and screams.

Chirino was found in a red Toyota pickup, shot in the throat. His brother was on the ground, near a rock allegedly used to bash him in the head. Police recovered five bullet casings.

Relatives called Chirino’s wife and children with news of the deaths. Then his daughter phoned Osorio’s office, screaming.

The lawyer instructed her to gather the death certificates, police documents and gruesome photos that had been posted to a Honduran news website. He said he would use them as evidence for the teens’ asylum cases. And he wrote a letter to Snow, with the gory documents attached.

“Santos was murdered by purported gang members,” Osorio wrote. “Santos was telling the truth.”

The official record on the brothers’ murders remains unclear. Relatives said the brothers were attacked by gang members. But an initial police report provided by the family said people had been drinking and a fight ensued.

Honduran officials did not respond to multiple requests for information about the case.

Santos Chirino’s daughter, above, and son were brought to the United States in 2014 as threats against the family began to escalate. They are seeking asylum and are waiting for their case to be heard in Arlington immigration court.

An uncertain future

Four months after the killings, Chirino’s children arrived for a scheduling hearing in Bryant’s courtroom in Arlington. Unlike their father, they appeared in person beside Osorio, sinking uneasily into the cushioned chairs.

The siblings were raised by their grandparents in Honduras. In 2014, as threats against his family continued to escalate, Chirino and his wife brought the children to the United States.

Chirino wouldn’t let his daughter take an after-school job, telling her to study hard so she could one day become a nurse.

Now she and her brother were facing deportation too.

“I want to extend my deepest sympathy upon the death of your father,” Bryant told the siblings, after Osorio explained what had happened. “My father died many, many years ago . . . I understand how painful that is.”

“It is even more painful because of the manner in which your father died,” he added, as Chirino’s daughter wiped her eyes.

Bryant scheduled a full deportation hearing for March 2018. A snowstorm postponed it. The judge’s next available date was in 2020.

Immigration lawyer explains Santos Chirino’s death in court

1:41

Osorio says it is unclear how the Trump administration’s recent changes in asylum policy will affect the siblings’ cases. But the answer could come sooner than expected.

On Nov. 24, Chirino’s son, who had recently turned 21, was charged in Loudoun County with public intoxication and contributing to the delinquency of a minor. Police had stopped the car he was riding in and arrested the driver for speeding and other charges.

After posting bail on the misdemeanor charges, Chirino’s son was transferred to Farmville, where his father had been held. ICE released him on bond, his sister said. Osorio is waiting to hear whether a new immigration hearing will be scheduled for him.

The attorney says he will do everything possible to ensure that the young man and his sister can remain in the United States. Their mother, Chirino’s widow, has kidney disease and is on dialysis, hoping for a transplant. Her condition is one of the factors Osorio plans to raise in court.

He has won other asylum cases since Chirino’s death, victories he describes as bittersweet.

“And this is what haunts me,” he emailed late one night. “Did I leave something laying on the table? Or is that just the dumb luck of our system, that in a different court, with a different judge and a different prosecutor, you get an entirely different outcome based on supposedly the same law?”

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

Go to the link for pictures by Carolyn Van Houten, recordings from the actual hearing, and an interview with Attorney Benjamin Osorio.

This happened during the last Administration at Arlington. Arlington is rightfully considered to be one of the best U.S. Immigration Courts with fair, scholarly, courageous judges who generally have been able to resist political pressure from above to cut corners and “send enforcement messages.” I saw nothing in this article to change that impression.

The decency, humanity, courage, and competency under pressure of judges like Judge John M. Bryant and Judge Lawrence O. Burman also comes through. That’s what the system should be promoting and attracting (but isn’t). Maria also movingly portrays the anguish and self-examination of a smart, caring, competent, hard-working immigration attorney like Benjamin Osorio.

But, even in Arlington, we all recognized that we were operating under less than ideal conditions that increased the likelihood of life-threatening mistakes and miscarriages of justice. And, even before Trump and Sessions, we were constrained by unduly restrictive interpretations of asylum law and intentional docket manipulation by DOJ politicos intended to reduce the number of asylum grants, prevent “the floodgates from opening,” and “send enforcement messages.” All of these are highly improper roles for what is supposed to be a Due Process focused, fair, and impartial court system.

Sadly, situations like Maria describes can’t always be prevented. I know Judge Snow to be a fair, scholarly, and conscientious jurist who always is aware of and considers the human implications of his decisions, as all of us did at Arlington. This comes through in the quote from his article in USA Today highlighted by Maria above.

If things like this happened in Arlington before Trump and Sessions, it certainly raises the question of what’s happening elsewhere right now. In some other Immigration Courts some judges are well-known for their enforcement bias, thin knowledge, and lack of professionalism.

Rather than instituting necessary reforms to restore Due Process, recognize migrants’ rights, require professionalism, and make judges showing anti-asylum, anti-female, and anti-migrant biases accountable, under Trump the Department of Justice has gone in exactly the opposite direction. “Worst practices” have been instituted, precedents and rules promoting fairness for asylum applicants reversed, judges encouraged to misapply asylum law to produce more denials and removals, the BIA turned into a rubber stamp for enforcement, and judges showing pro-DHS and anti-migrant bias insulated from accountability and empowered to crank out more decisions that deny Due Process.

One of the most despicable of the many despicable and dishonest things that Jeff Sessions did was to minimize and mock the stresses put on the respondents, their conscientious lawyers, the judges, the court staff, and the DHS litigation staff by the system he was maladministering. While a decent human being and a competent Attorney General could and should have dealt with these honestly with an eye toward working cooperatively with all concerned to build a better, fairer, less stressful system, Sessions intentionally did the opposite. He insulted lawyers, made biased, unethical statements to Immigration Judges, hurled racially inspired false narratives at asylum applicants and migrants, manipulated and stacked the law against asylum applicants, artificially “jacked up” backlogs, and ratcheted up the stress levels on the judges by demeaning them with “production quotas.” (Other than that, he was a great guy.)

Contrary to what Jeff Sessions said, being a U.S. Immigration Judge is one of the toughest judicial jobs out there, requiring a very healthy dose of sympathy, empathy, and compassion, in addition to critical examination of claims under a legal framework and our Constitution.

I had to remove some individuals I found to be in danger because I couldn’t fit them into any of the protections available under law. But, it certainly made me uncomfortable. I did it only reluctantly after exploring all possible options including, in some cases, “pushing” ICE to exercise “prosecutorial discretion” in some humanitarian situations. That’s what “real judging” is about, not the simplistic, de-humanized, mechanized assembly line enforcement function falsely promoted by Sessions.

We should be concerned about laws and interpretations that fail to protect lives. We should be working hard to insure, to the maximum extent possible, that we save lives rather than returning folks to death. We must insure that no biased, unethical, and unprincipled person like Jeff Sessions ever gets personal control of this important court system in the future.

Instead, the Trump Administration is working overtime to guarantee more miscarriages of justice, violate international laws, and achieve more preventable deaths of innocent folks. We should all be deeply ashamed of what America has become under Trump.

PWS

12-06-18

VARIOUS SUITS FILED CHALLENGING AUTHORITY OF U.S. IMMIGRATION JUDGES IN THE “ERA OF WHITAKER” – Is It Really Possible That All DOJ Actions Since Sessions’s Firing Are Invalid?

https://www.kolkoassociates.com/immigration-and-firm-news/lawsuit-challenges-immigration-judges-whitaker

Here’s a timely update from Jennifer Casey, Partner at Kolko & Associates in Denver, CO:

Lawsuit Challenges Power of Immigration Judges to Hear Cases Due to Unlawful Designation of their Delegating Authority: Acting Attorney General Matthew Whitaker

Posted by Jennifer Caseyon Wednesday, 05 December 2018 in Immigration and Firm News

On December 4, 2018, Mr. Carlos Rojo-Ramirez, of Colorado, through his attorneys David. L. Kolko and Jennifer Casey (Kolko & Associates, P.C.), challenged President Trump’s unlawful designation of Matthew G. Whitaker as Acting Attorney General of the United States.

In, Rojo-Ramirez v. Trump, et. al., (18-cv-03125), filed in the U.S. District Court for the District of Colorado, Mr. Rojo-Ramirez asserted that U.S. Immigration Judges are temporarily operating without any legal authority because their power over individuals in immigration removal proceedings is based solely on a delegation of authority from a (lawfully appointed) Attorney General of the United States.

On November 7, 2018, President Trump announced via Twitter that he designated Matthew Whitaker to serve as the Acting Attorney General of the United States. The designation was made without Senate confirmation as required by the Appointments Clause of the U.S. Constitution, and was executed in violation of the Attorney General Succession Act and Federal Vacancies Reform Act.

This follows other legal actions brought by the State of Maryland and Senators Blumenthal, Whitehouse and Hirono, as well as an amicus brief in Matter of Negusie, 27 I&N Dec. 481 (A.G.) by the American Immigration Council, each of which challenge the unconstitutional appointment of the Acting Attorney General and the resulting legal implications from the unlawful designation.

The Immigration Judges serving at the Executive Office of Immigration Review (EOIR) are not independent administrative judges, and operate solely by statute and regulation as delegates of the Attorney General. Plaintiff’s counsel asserts that because Whitaker has not been constitutionally appointed, he does not hold any power to delegate the authority of the office of the Attorney General to the Immigration Judges serving at the EOIR. As a result, these Immigration Judges do not presently have legal authority to preside over the cases before them.

Due to the unique legal structure of the EOIR, with Immigration Judges acting as delegates of a (lawfully appointed) Attorney General, this case calls in to question the legal authority of any actions by the EOIR’s Immigration Judges after November 7, 2018. Nationwide, there are over one million cases pending before approximately 400 Immigration Judges serving in 62 Immigration Courts.

The Plaintiff’s legal challenge includes a request for declaratory judgment and injunction until such time as a lawfully appointed Attorney General is serving in this role, and is able to lawfully delegate the authority of that office to the Immigration Judges of the United States.

For more information, please contact David Kolko or Jennifer Casey at Kolko & Associates, P.C.

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

As usual, Trump has taken the most idiotic approach to governing. He could have gotten rid of Sessions (hard to argue with that, no matter what his reason) and avoided any problems by 1) appointing the duly confirmed Deputy, Rod Rosenstein, as Acting AG; and 2) having another suitable candidate, such as former AG Bill Barr, ready to submit to Congress. I suspect that Barr would have been easily confirmed during the “lame duck” session. But, making government function in a reasonable and lawful manner isn’t what Trump and his cronies are about.

PWS

12-06-18

‘OUR GANG” MEMBERS JOIN HUNDREDS OF OTHER DOJ “ALUMS” IN RAISING CONCERNS ABOUT WHITAKER APPOINTMENT!

https://www.buzzfeednews.com/article/zoetillman/justice-department-matthew-whitaker-attorney-general

Zoe Tillman reports for BuzzFeed News:

WASHINGTON — More than 400 former Justice Department officials and attorneys have signed a statement saying they’re “disturbed” by President Donald Trump’s appointment of Matthew Whitaker as acting attorney general.

The list of signatories includes more than 300 former career Justice Department employees who served under both Democratic and Republican administrations, according to Protect Democracy, a government watchdog group involved in organizing the effort. It also includes political appointees, mostly appointed by Democratic presidents.

“Because of our respect for our oaths of office and our personal experiences carrying out the Department’s mission, we are disturbed by the President’s appointment of Matthew Whitaker to serve as Acting Attorney General,” the statement signed by former DOJ officials and attorneys reads. “Mr. Whitaker has not been confirmed by the Senate, his qualifications to be the nation’s chief law enforcement officer have not been publicly reviewed, and he has not been fully vetted for any potential conflicts of interest.”

Protect Democracy / Via medium.com

The statement signed by 421 Justice Department alumni as of Dec. 4, 2018.

Whitaker took office Nov. 7 after Trump forced out former attorney general Jeff Sessions. Whitaker had been Sessions’ chief of staff, but was not in a Senate-confirmed position. Whitaker’s appointment is the subject of multiple legal challenges in the federal courts, as well as before the US Supreme Court; the Justice Department has defended it as lawful.

Jill Wine-Banks, a former Watergate prosecutor, said she signed the statement because of concerns not only about how Whitaker was appointed, but about whether he should step aside from any involvement in the investigation into Russian interference in the 2016 election. Whitaker has been critical of the probe in the past.

“I think there are a number of reasons not to support Whitaker and a number of reasons to think he should at least recuse himself,” said Wine-Banks, now an MSNBC contributor.

Protect Democracy spokesperson Aditi Juneja said the group first sent out the statement to former Justice Department officials Nov. 29. Roy Austin, a former senior Justice Department official in the Civil Rights Division under the Obama administration, told BuzzFeed News that the statement continued to spread via word of mouth over the past few days among department alumni.

“I don’t expect much from this administration but I think the public should know that those of us who served at the Department of Justice care deeply about the institution even though we’re no longer there, and I hope the public and Congress demand that the right thing be done,” said Austin, now an attorney in private practice in Washington, DC.

Trump has not announced a nominee for attorney general. The statement signed by former DOJ officials calls on the president to choose a nominee and go through the Senate confirmation process. One of the legal challenges to Whitaker’s appointment was filed by Democratic senators who argue that the appointment circumvented the Senate’s “advice and consent role” on nominees.

A Justice Department spokesperson did not immediately return a request for comment.

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

Not too late for other “DOJ alums” to sign on (you certainly don’t have to be a former judge or member of “Our Gang.”). See the ink at the end of the letter embedded in the above article.

AILA and other immigrants’ rights advocacy groups are also raising issues abut Whitaker’s legal authority to certify and issue binding precedent decisions in immigration cases!

PWS

12-05-18

WHITAKER APPEARS POISED TO CARRY ON SESSIONS’S ATTACKS ON IMMIGRATION COURTS, DUE PROCESS, REFUGEES! — “Certifies” Two New Cases On One Day!

Hon. Jeffrey Chase reports:

The Acting AG, in some twisted take on Ernie Banks (“Let’s play two!) just certified two cases to himself:

Matter of L-E-A-, in order to determine “Whether, and under what circumstances, an alien may establish persecution on account of membership in a “particular social group” under 8 U.S.C.

§ 1101(a)(42)(A) based on the alien’s membership in a family unit.”

and

Matter of Castillo-Perez, to determine(1) In connection with an application for cancellation of removal under 8 U.S.C. § 1229b(b), what is the appropriate legal standard for determining when an individual lacks “good moral character” under 8 U.S.C. § 1101(f)?

(2) What impact should multiple convictions for driving while intoxicated or driving under the influence have in determining when an individual lacks “good moral character” under 8 U.S.C. § 1101(f)?

(3) What impact should multiple such convictions have in determining whether to grant discretionary relief under 8 U.S.C. § 1229b(b).

The Acting Attorney General ordered that the case be stayed during the pendency of his review.

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

Go on over to the EOIR website for more information: https://www.justice.gov/eoir

The BIA is rapidly becoming irrelevant. But since the Acting Attorney General isn’t an expert in immigration laws, his decisions should get no deference from the real courts. And, then there is the question of whether he really is the Acting Attorney General . . . .

Stay tuned.

PWS

12-03-18

Related posts:

Related posts:

“Hot off the wire” from “Our Gang” of Retired Immigration Judges’ Leader Judge Jeffrey Chase:

No wonder that Trump and his White Nationalist cronies are so scared of “gangs like ours!”

Related posts:

Acting AG Whitaker Takes Aim at Asylum Seekers Fleeing Family-Based Persecution – Sophia Genovese

Related posts:

Dec 13 EOIR’s Creates More Obstacles for Families

Dec 8 Interpreting Pereira: A Hint of Things to Come?

Related posts:

Related posts:

Related posts:

Related posts:

That’s why the New Due Process Army must continue to be America’s bastion against the forces of darkness that threaten us all.

Related posts:

Related posts:

Related posts:

Sitting in judgment

‘Best of luck to you and your family’

An uncertain future

Related posts:

Lawsuit Challenges Power of Immigration Judges to Hear Cases Due to Unlawful Designation of their Delegating Authority: Acting Attorney General Matthew Whitaker

Related posts:

Related posts:

Related posts: