Category: Matt Whitaker

FALSE EQUIVALENCY: No, “Trump’s Shutdown” Is Not A “Failure Of Both Parties” Or “Washington’s Fault” – It’s 100% On Trump & The GOP & Proves Beyond A Reasonable Doubt That They Are Incapable Of Governing In A Responsible & Reasonably Competent Manner!

FALSE EQUIVALENCY:  No, “Trump’s Shutdown” Is Not A “Failure Of Both Parties” Or “Washington’s Fault” – It’s 100% On Trump & The GOP & Proves Beyond A Reasonable Doubt That They Are Incapable Of Governing In A Responsible & Reasonably Competent Manner!

 

By Paul Wickham Schmidt

United States Immigration Judge (Retired)

I’m tired of hearing all the “fake news” about “shared responsibility” for the “Trump shutdown:” The totally insane and unnecessary shutdown that he promised to inflict and that Mitch McConnell and the GOP enablers delivered against the American people.

The shutdown is 100% a GOP responsibility, just as Trump originally threatened. The wall is at best an ineffective and overpriced method of addressing border security, particularly standing alone. And, it has absolutely nothing to do with current border security because it would take years, if not decades, to build. There is no way that it justifies shutting down the Government.

Trump’s latest offer clearly was made in bad faith. While he and Pence disingenuously presented a distortedly simple version to the public, the actual 1,000-page screed was filled with White Nationalist attacks on asylum, kids, and migrants drafted by neo-Nazi Stephen Miller as a “sharp stick in the eye” to Dems, Hispanics, refugees, and all Americans who believe in our Constitution and humane values. In other words, typical Trump/Miller/McConnell nonsense. Trump is actually offering “Dreamers” less than the Supremes have effectively guaranteed them. So, how is that a reasonable proposal or a good faith “starting point” for negotiations?

The GOP can and should join Dems in reopening Government now, no strings attached and with a much-needed pay raise for Feds, by a “veto-proof” margin. Forget Trump, his anti-American rants and schemes, and his diminishing White Nationalist “fan club.”

Then, the “Non-Bakuninist Branch” of the GOP needs to join the Dems in governing America, which Trump has proved beyond a reasonable doubt he has neither the ability nor the desire to do. Immigration should be part of that discussion; but, not the White Nationalist agenda on immigration that Trump and Miller keep pushing.

We need a realistic discussion that would strengthen protections for asylum seekers, use more smart technology, improved intelligence, Immigration Inspectors, Anti-Smuggling Officers, undercover agents, Asylum Officers, and Immigration Judges to deal with the border situation, and significantly expand legal immigration. The latter is a long overdue common-sense move to serve our country’s future needs (most reliable studies show that we need more, not less immigration), diminish the size and allure of the “extra-legal” system that arises when the law is out of whack with market realities (as ours is now), and allow DHS enforcement to focus on the “real bad guys” rather than artificially combining “bad guys” with folks coming to help us out (and help themselves and their families in the process).

Reform of the U.S. Immigration Courts which Trump and Sessions have utterly and cynically destroyed should also be on the agenda. There is only one answer: get those courts out of the politicized and incompetent U.S. Department of Justice and into an independent judicial structure where apolitical judges and professional court administrators can start fixing the absolutely disgraceful and dysfunctional mess that Sessions and his predecessors have made out of what could have been an effective and efficient provider of Due Process. Too late now! Just stop the hemorrhaging and start building something of which America can actually be proud rather than the current national embarrassment, which serves neither the individuals whose rights it was intended to protect nor legitimate DHS enforcement objectives. That’s the very definition of failure.

The Post and other mainstream media keep pushing a “false equivalency” in blaming “both sides” for the shutdown. That’s not true; the shutdown was engineered solely by Trump and the GOP BEFORE the Dems even took over the House, just as Trump had publicly and petulantly threatened.

While the Dems should look for ways to be part of the solution, the problem is Trump, the GOP, and those enablers who continue to support a fundamentally anti-American agenda that attacks our own governing institutions and the dedicated public servants who keep them running for all of us.

Every day must be a great day for Vladimir Putin with Trump and the GOP destroying America! It’s time for Dems and whatever responsible GOP legislators might remain to take the reins and save America from Trump and his Putin-serving policies before it’s too late! “Time’s a wasting” while Trump and the GOP are fiddling with our country’s security and future well-being. Unacceptable!

PWS

01-23-19

Related posts:

  1. VICTORY DANCE! — ICE’S HOMAN SAYS CLIMATE OF FEAR HAS STEMMED BORDER CROSSINGS & PROVES UNRESTRAINED, ARBITRARY IMMIGRATION ENFORCEMENT WORKS! — “There’s no population that’s off the table,” he said. “If you’re in the country illegally, we’re looking for you and we’re looking to apprehend you.” — America Won’t Be Truly Safe Until The Last Cook, Gardner, Construction Worker, Nanny, Janitor, Tree Cutter, Mechanic, Handyman, Carpenter, Home Health Aide, Computer Programmer, Healthcare Worker, Lettuce Picker, Cow Milker, Landscaper, Lawnmower, Bricklayer, Roofer, Window Washer, Waiter, Sandwich Artist, Teacher, Minister, Coach, Student, Parent, Clerk, Fisherman, Farmer, Maid, Chicken Plucker, Meat Processor, Etc., Without Docs Is Removed And US Citizens Take Over All These Jobs!
  2. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  3. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”
  4. HAPPY NEW YEAR FROM COURTSIDE! — I Take A Look Forward @ 2019’s Big Immigration Stories

SPLIT DECISION: Supremes Deliver “Gut Punch” To Transgender Americans, But Give Another Round To Dreamers

SPLIT DECISION: Supremes Deliver “Gut Punch” To Transgender Americans, But Give Another Round To Dreamers

 

By Paul Wickham Schmidt

United States Immigration Judge (Retired)

On Tuesday, a divided Supreme Court allowed a portion of Trump’s homophobic ban on certain transgender troops to go into effect. At the same time, they properly squelched the arrogantly disingenuous attempt by Trump and his “go along to get along” Solicitor General Noel Francisco to “expedite” review of lower court rulings that found that Trump, former Attorney General Sessions, and DHS acted lawlessly and without any apparent legal rationale in terminating the “DACA” program. In simple terms, decisions that required the Administration to follow the law.

Prior Solicitors General have sometimes balked at representing liars and presenting disingenuous arguments in behalf of their Government “clients.” (Actually, somewhat of a bureaucratic misnomer, because the “institutional client” is really the “People of the U.S.”  who pay Government salaries, regardless of whether they are citizens or can vote.) Not this one, who seems to savor the opportunity to carry Trump’s more than ample “dirty water” and reduce the credibility of his one-respected office to around zero. As I predicted, nobody serves Trump without being tarnished.

For the LGBTQ community, it’s a horrible signal that a narrow majority of the Supremes are unwilling to move into the 21stcentury and recognize their Constitutional rights to equal protection under the 14thAmendment as well as their rights as human beings. It’s also shockingly disrespectful to those who have stepped forward to risk their lives in the name of our country, something Trump took great pains to avoid. It’s doubly disappointing that Chief Justice John Roberts joined his far-right colleagues on this one, at least in part (he rejected the bogus argument for immediate review put forth by Francesco and instead sent the case back to the lower courts for further development).

Unlike some of his colleagues on the right, Roberts has some sense of institutional history, the horror and existential dangers to democracy of Trump as Chief Executive, and the future. Come on, “Chiefie,” we can all get smarter as we get older! Don’t blow your chance to “get on the right side of history.” Leave the “Four Horsemen of the Apocalypse” behind in their dust and join your four more enlightened colleagues in moving America forward and showing some leadership and courage on the Supremes. As this month has shown, you might be the only person able to save America.

Paraphrasing what many pundits have said, “The Supremes can basically do anything they want, whenever they want to, for any reason they can come up with, because they are Supreme.” With that caveat in mind, the Court’s well-deserved slap down of Trump on DACA basically leaves the full protections in effect for Dreamers until the end of the Trump Administration. At that point, we’ll either get a new President, or there won’t be any country left for the “Dreamers,” the Supremes, or the rest of us to “dream about” or live in. The so-called “American Dream” will be at a tragic end. We’ll all be living in a continuing nightmare of cruelty, incompetence, and randomness.

I think the Supremes would be wise not to take up the DACA issue ever. It needs to be resolved by the lower courts, who have for the most part done a fine job, and the Congress, which hasn’t. But, assuming the Supremes do take the issue, they probably wouldn’t schedule argument before the October Term 2020. That makes it highly unlikely that they would reach and issue any final decision before the November 2020 elections. There would certainly be no reason for them to “rush to judgement” on this one.

Thus, Trump’s hollow offer of meager “Dreamer relief,” no path to green cards or citizenship and less than they have now under the court decisions, is even less of a legitimate “bargaining chip” than it was before. And, “poisoning the well” with Stephen Miller’s White Nationalist anti-asylum, child-abuse agenda shows how intellectually dishonest Trump and the GOP are and that the rancid “thousand pages of vile gibberish” that they launched as a “fake offer to reopen our Government” is a pure political stunt and an insult to 800,000 unpaid Government workers.

Moreover, all of this nonsense must be viewed in context of reality. That’s something that seldom intrudes on the daily intentionally created chaos and national dysfunction of this Administration. The Dreamers aren’t going anywhere! Almost all of them have legitimate applications for immigration relief that they can file in Immigration Court, including cancellation of removal, asylum, withholding of removal, or relief under the CAT.

Trump, Sessions, and now Whitaker have totally destroyed the U.S. Immigration Court system.  I’m not sure it will be able to reopen even when the Trump shutdown finally ends. With a politically-created backlog of well over one million cases, growing by tens of thousands with every day of the mindless Trump shutdown, virtually no “Dreamer” (other than a minute percentage who might be convicted of crimes and probably would have had their DACA status revoked or denied on that basis) would be scheduled for removal proceedings within the next four years, let alone by 2020. Indeed, if Congress doesn’t step in and provide Dreamer relief and an Article I independent Immigration Court to replace the current dysfunctional mess in the DOJ, some of these cases may well still be pending a decade from now!

This context also reaffirms the total disingenuous absurdity of SG Francisco’s argument that this is an “emergency” requiring “early intervention” by the Supremes. Nothing could be further from the truth. The only “emergency” is the one intentionally caused by his “client” Trump — by illegally and unnecessarily trying to shut down the DACA program and aggravated by his Administration’s wanton destruction of our U.S. Immigration Courts, and by the “Trump shutdown.”

The Supremes must take a “hard line” against being “sucked in” to the many bogus “emergencies” that Trump creates to detract attention from his and his party’s inability to govern in even a minimally fair and effective manner. Perhaps, it’s also time for Francisco to reread the rule of ethics for lawyers and have a “heart to heart” with his “client” about abusing the Federal Courts with semi-frivolous litigation and presenting lies as “facts.” It’s never too late to learn!

PWS

01-23-19

Related posts:

  1. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  2. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”
  3. MARK JOSEPH STERN @ SLATE: GONZO’S GONE! — Bigoted, Xenophobic AG Leaves Behind Disgraceful Record Of Intentional Cruelty, Vengeance, Hate, Lawlessness, & Incompetence That Will Haunt America For Many Years!
  4. COMPLICITY HAS COSTS:  Article III Judges’ Association Apparently Worries That Trump, Barr, GOP Toadies Starting To “Treat Them Like Immigration Judges” — Do They Fear Descent To Status Of Mere Refugees, Immigrants, “Dreamers,” Unaccompanied Children, Or Others Treated As “Less Than Persons” By Trump, 5th Cir., 11th Cir., 9th Cir., & The Supremes’ “J.R. Five?” 

THE ABSURDITY OF TRUMP’S SHUTDOWN & ITS DEVASTATING EFFECT ON OUR ALREADY CRUMBLING IMMIGRATION COURT SYSTEM DETAILED IN OPEN LETTER TO CONGRESS BY NAIJ PRESIDENT, HON. A. ASHLEY TABADDOR

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NATIONAL ASSOCIATION OF IMMIGRATION JUDGES
President A. Ashley Tabaddor c/o Immigration Court 606 S. Olive Street, 15th Floor Los Angeles, CA 90014 (213) 534-4491
______________________________________________________________________________________________________ January 9, 2019
Dear Senator,
As has been widely reported, the current government shutdown over U.S. immigration policy has placed an unmanageable burden on our nation’s Immigration Courts. As an Immigration Judge in Los Angeles presently on furlough and as President of the National Association of Immigration Judges (NAIJ), I am acutely aware of the impact of the current government shut down on our Immigration Courts, Immigration Judges and the parties who appear before us.
There is currently a backlog of more than 800,000 pending immigration cases (an increase of 200,000 cases in less than two years, in spite of the largest growth in the number of judges in recent history – from under 300 to over 400 U.S. Immigration Judges). We, as Immigration Judges, are responsible for determining whether claimants can remain in the United States or must be deported or detained.
Because of the crushing backlog of cases, our individual court calendars are booked, morning and afternoon, every day of the week, multiple years in advance. Some days our judges have more than 80 cases on their dockets. Every day that our courts are closed, thousands of cases are cancelled and have to be rescheduled. However, the likely re-scheduling option is – as Washington Post editorial writers suggest – plucked from a New Yorker cartoon: “Never. Does never work for you?” While this is hyperbole, it is not far from the truth. Since it is impossible to predict when these cases can reasonably be rescheduled, it might as well be “never.”
The concept of “never” cannot be accepted and does not work for the United States. It is unacceptable to prevent those who should be deported to remain here indefinitely or to prevent those who are eligible for relief from being granted relief and receive the benefit they deserve. When a hearing is delayed for years as a result of a government shutdown, individuals with pending cases can lose track of witnesses, their qualifying relatives can die or age-out and evidence already presented becomes stale. Those with strong cases, who might receive a legal
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immigration status, see their cases become weaker. Meanwhile, those with weak cases – who should be deported sooner rather than later – benefit greatly from an indefinite delay.
Judges, as public servants, along with our fellow federal employees and people across the country, are also being asked to carry the burden of a government shut-down. Every Immigration Judge across the country is currently in a “no-pay” status. Those who have been furloughed are anxious about having been prevented from continuing to work and earn their living. The judges who have been deemed as “excepted” are serving the American people without pay and doing so with added unnecessary pressures, including the Department’s recent announcement that most hearings will no longer be accompanied with in-person interpreters, and that the judges’ previous compressed work schedules and administrative time to review cases has been cancelled. On behalf of the NAIJ, I urge you to bring a rapid end to the current shutdown.
The root cause, however, of an increasing backlog of cases, the delays, uncertainty and unfairness in U.S. Immigration Courts is that our Immigration Court and judges are directly accountable to the U.S. Attorney General, the federal government’s lead prosecutor. This underlying structural flaw has led to repeated violations of the basic tenants of our American judicial principles, that of an independent and impartial judge and court. While we are grateful to Congress for the recent allocation of additional funding to our resource starved courts, such as added Immigration Judge teams, history has proven that the issues plaguing our Immigration Courts will not be corrected simply through more funding. The enduring solution, which has been publicly supported by multiple prominent legal organizations and scholars, is to remove the Immigration Court from the Justice Department and afford it with the true independence it needs and deserves. It is long past time to vest U.S. Immigration Judges – like our counterparts in U.S. tax and bankruptcy courts – with full judicial independence under Article 1 of the U.S. Constitution.
We are available at your convenience to discuss these critical issues. Sincerely,
Hon. Ashley Tabaddor
President, National Association of Immigration Judges
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Wow! Trump is taking “Aimless Docket Reshuffling” — the REAL primary cause of the unmanageable court backlog — to new heights.

And, Judge Tabaddor isn’t even counting the 300,000 or so already closed cases that EOIR Director McHenry includes in his backlog count (undoubtedly on orders from his DOJ “handlers”)!

Nor does she include more than 300,000 Central Americans and Haitians that the Administration is mindlessly (and perhaps illegally) trying to boot out of their current status. Of course, the vast majority of the TPSers would have strong claims for “Cancellation of Removal.” So, in truth, they are not going anywhere except into the Court’s backlog. Trump will be long gone before the Immigration Courts even get to,the first of those cases!

Running hearings without in person interpreters! That’s almost a prima facie Due Process violation. I can virtually guarantee that it will result in many inadequate or disputed translations, meaning remands by the BIA and the Article IIIs for “redos.” Haste makes waste!

What if we actually invested in a system that “does Due Process right” the first time around? Certainly, it would make the system fairer and more efficient. It wouldn’t cost $5.7 billion either. Indeed some of that money could be spent on providing universal representation for asylum seekers.  Or how about a functioning e-filing system which almost all other high volume courts in America also have?

Could it get any dumber than Trump shutting down the Immigration Courts, essential to immigration administration and enforcement, over immigration enforcement? No, it couldn’t!

PWS

01-12-19

Related posts:

  1. JOURNAL ON MIGRATION & HUMAN SOCIETY (“JMHS”) PUBLISHES MY TRIBUTE TO JUAN OSUNA (1963-2017): “An Overview and Critique of US Immigration and Asylum Policies in the Trump Era”
  2. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  3. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”
  4. COURTSIDE HAS BEEN AT THE FOREFRONT OF EXPOSING THE “CRIMES AGAINST HUMANITY” COMMITTED BY THE REGIME AND THE MORAL CULPABILITY OF THOSE WHO WILLFULLY CARRY OUT & ENABLE THESE ATROCITIES — The “Mainstream Media” Is Now Channeling Courtside! — “In the meantime, no government has the right to treat people with such abject inhumanity. History will remember Trump for this, but it will also remember the people who enable such atrocious acts.”

PROFESSOR STEPHEN LEGOMSKY IN USA TODAY: Gender Is Clearly a “Particular Social Group” – Congress Must Amend The Law To Insure That Neither Bureaucratic Judges Nor Political Hacks Like Sessions & His Ilk Can Deprive Women & LGBTQ Individuals Of The Protections They Need & Deserve!

https://www.usatoday.com/story/opinion/2019/01/02/gender-related-violence-grounds-asylum-refugee-women-congress-column/2415093002/

When women arrive at our shores asking only that they not be beaten, raped or murdered, delivering them to their tormentors isn’t an option.

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Our asylum laws have some gaping holes. These gaps endanger many groups, but none more so than women and girls who are fleeing domestic violence, honor killings, mass rape in wartime, gang rape by criminal gangs, and other gender-related violence. Congress must explicitly recognize gender-based persecution as a potential asylum ground.

Asylum requires a “well-founded” fear of being persecuted. But not just any persecution will do. The persecution has to occur for one of five specific reasons — your race, your religion, your nationality, your political opinion, or what the law calls your “particular social group.” Gender is notably missing from this list.

That omission is not surprising. U.S. asylum laws, like those of most other western countries, track the language of an international refugee convention that was adopted in 1951. Gender-related violence was simply not on the public radar at that time.

But it is now 2019. The historical excuse will no longer wash. With women’s marches, the MeToo movement, the Brett Kavanaugh confirmation process and women’s stunning midterm electoral successes, gender-related violence is now part of our national consciousness.

Read more commentary:

As a Syrian refugee in US, I watched my country collapse. But there is a path to hope.

Refugees at US-Mexico border are treated like criminals

Bring more refugees to America. They’ll fill vacant jobs and boost our economy.

Without specific congressional recognition of gender-based persecution, women and girls fleeing the most horrific violence imaginable have had to argue that they will be persecuted because of their “particular social group.” Today that is easier said than done. The nation’s highest administrative tribunal that decides asylum claims — the Justice Department’s Board of Immigration Appeals — has been adding more andmore roadblocks to asylum claims that are based on “particular social group.”

This was not always the case. In 1985, the board defined “particular social group” as one in which membership is “immutable.” Gender, of course, meets that definition.

The immutability test makes perfect sense. If you will be persecuted only because of an innocuous characteristic that you can easily change, then you don’t need asylum. But if that characteristic cannot be changed, you have no other practical way to protect yourself. The immutability test thus allows asylum for those who need it and withholds it from those who don’t.

Justice constraints are harmful, irrational

But the board could not leave well enough alone. Along the way it invented two additional requirements. One is “social distinction.” If you claim persecution because of your membership in a “particular social group,” you must now prove that your home society describes that class of individuals as a “group.” Second, you must now prove what the board calls “particularity.” By this it means you must prove that your home society can figure out whether hypothetical other individuals are members of the group.

There are only four problems with those requirements: The board has no convincing legal authority to impose them. No one really understands what they mean. They are nearly impossible to prove. And they make no policy sense: why should the U.S. decision whether to grant asylum to someone depend on whether her home society thinks of the particular class as a “group,” or on whether the home society can tell which other individuals belong to that “group”?

Last June, then-Attorney General Jeff Sessions made this bad situation worse. Overruling board precedent, he announced that, henceforth, anyone fleeing domestic violence (or, for that matter anyone fleeing gang violence) will “generally” be unable to prove either social distinction or particularity and therefore should be denied asylum. Although a federal court has blocked that decision for now, the Supreme Court will likely determine its ultimate fate.

But the problems go beyond that specific case. First, the artificial constraints that the board has imposed for all claims based on “particular social group” are both harmful and irrational. Second, it is only because gender is not on Congress’s list of specifically protected grounds that women and girls have had to fit their claims into “particular social group” in the first place.

Women would still prove need for asylum

What arguments could possibly be made for protecting people from racial or religious persecution but not from gender persecution?

Perhaps the fear is that domestic violence is too endemic, that allowing asylum would open the floodgates. We need not worry, for a woman or girl fleeing domestic violence has multiple legal burdens that minimize the numbers: She must prove that her fear is both genuine and well-founded, that the harm she fears is severe, that her government is unable or unwilling to protect her, that no place anywhere in her country would be safe, and — even if gender is added to the list — that the persecution will be inflicted because of her gender. These are all high bars, and proof requires meticulous, persuasive documentation. Canada has recognized domestic violence asylum claims since the 1990s, and no floodgates have opened.

The U.S. cannot singlehandedly eradicate all violence against women and girls — even here at home. But we can at least avoid being an accomplice. When women and girls arrive at our shores asking only that they not be beaten, raped or murdered, delivering them to their tormentors is not an option. Congress should restore the original meaning of “particular social group,” and it should recognize that gender, like race and religion, belongs in the list of specifically protected grounds.

Stephen Legomsky is a professor emeritus at the Washington University School of Law, the principal author of “Immigration and Refugee Law and Policy,” and the former Chief Counsel of US Citizenship and Immigration Services in the Obama Administration.

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Steve is absolutely right! This needs a legislative solution. And, while they are at it, Congress also needs to insulate the Immigration Court against future bureaucratic and political shenanigans by creating an independent Article I Immigration Court with a merit-based judicial selection system.

Not coincidentally, the BIA added the intentionally unduly restrictive “particularity” and “social distinction” (formerly “social visibility”) requirements (remarkably, without dissent or even full en banc treatment) only after a group of BIA Judges, including me, who understood both asylum law and women’s rights, and weren’t afraid to vote accordingly, had been removed by Attorney General Ashcroft in a bogus and disingenuous politically motivated “downsizing” following the election of President George W. Bush in 2000. Since then, asylum seekers generally have had a hard time finding justice at the “captive” and politically controlled BIA.

And, the situation has become critical following the tenure of the White Nationalist, misogynist political hack Jeff Sessions as Attorney General. Sessions abandoned even the pretense of fairness, deliberation, impartiality, and judicial temperament in his anti-asylum, anti-Due-Process, anti-women campaign to rewrite the law to fit his preconceived White Nationalist xenophobic agenda — one that he (understandably & fortunately) never was able to push through Congress during his tenure as a Senator.

PWS

01-04-19

 

 

 

Related posts:

  1. HERE’S WHY NIELSEN’S LATEST ATTACK ON REFUGEES AND THE RULE OF LAW COULD BACKFIRE! – ALSO, AN ADDENDUM: “MY MESSAGE TO THE NDPA”
  2. REPORT FROM FBA, AUSTIN: Read My Speech “JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW”
  3. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  4. JOURNAL ON MIGRATION & HUMAN SOCIETY (“JMHS”) PUBLISHES MY TRIBUTE TO JUAN OSUNA (1963-2017): “An Overview and Critique of US Immigration and Asylum Policies in the Trump Era”

BOGUS BACKLOG BUILDS! — DOJ Politicos Use Trump Shutdown As Excuse To Shutter Most US Immigration Courts, Creating More Backlogs & “Aimless Docket Reshuffling!”

Immigration Court Operating Status During Lapse in Appropriations
During the current lapse in appropriations, the following operating status is in place for EOIR:
Detained docket cases will proceed as scheduled.
Non-detained docket cases will be reset for a later date after funding resumes. Immigration courts will issue an updated notice of hearing to respondents or, if applicable, respondents’ representatives of record for each reset hearing.

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The above “official notice” from EOIR is a striking reminder that we have idiots running our Government, starting at the very top. These are folks who can invent a “national emergency” over a few thousand desperate migrants waiting for routine legal processing at our border. But, the same folks can’t come up with a rationale for keeping the vast bulk of the nation’s already collapsing Immigration Courts operating. Since the system isn’t automated either, the result will be more backlog and more of the “Aimless Docket Reshuffling” for which DOJ and EOIR are infamous.

Notably, most of DHS appears to be “up and running” even without appropriations.

In my thirteen years a the Arlington Immigration Court, I was usually “nonessential,” but occasionally “essential” during various shutdowns, depending on the whims of the politicos at DOJ and the EOIR front office. So, the problem pre-existed this Administration. Indeed, mindless shutdowns over the years helped contribute mightily to both backlog and morale problems at the U.S. Immigration Courts. There’s no better way to “demotivate” people than to tell them that their work is “non-essential.”

During the 2013 “shutdown,” then D.C. Mayor Vincent Gray, never known as the most creative politician to hold office, simply declared every D.C. employee “essential”  — and he got away with it.

The next time that this or any other Administration, or Congress, tries to blame their bogus, self-created Immigration Court “backlog” on migrants, their lawyers, Immigration Judges, or EOIR line court employees, just “call B.S.” Know and remember who’s causing the real problems in this beleaguered, politicized, and totally mismanaged mess of a “court” system (a/k/a “Clown Court”)!

PWS

12-26-18

 

 

Related posts:

  1. LAW YOU CAN USE: ALL-STAR PROFESSOR LINDSAY MUIR HARRIS TELLS US HOW TO STOP THE TRUMP, SESSIONS, NIELSEN PLAN FOR A “NEW AMERICAN GULAG:” “CONTEMPORARY FAMILY DETENTION AND LEGAL ADVOCACY” — 136 Harvard Latinx Law Review Vol. 21 — “This is our time to act and proudly join the brigade of “dirty immigration lawyers” to ensure protection and due process for the most vulnerable!”
  2. FALSE EQUIVALENCY: No, “Trump’s Shutdown” Is Not A “Failure Of Both Parties” Or “Washington’s Fault” – It’s 100% On Trump & The GOP & Proves Beyond A Reasonable Doubt That They Are Incapable Of Governing In A Responsible & Reasonably Competent Manner!
  3. “THE 5-4-1 PLAN FOR DUE PROCESS IN IMMIGRATION COURT” — My Speech To The Association Of Deportation Defense Attorneys, NY City, March 21, 2019
  4. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”

WRONG AGAIN: 2D CIR. SCHOOLS BIA ON BURDEN OF PROOF! — ALOM v. WHITAKER — BIA Blows Basics Again As System Crumbles!

17-2627_opn

Alom v. Whitaker, 2d Cir., 12-17-18, Published

PANEL: HALL, LOHIER, Circuit Judges, and RESTANI, Judge.

Judge Jane A. Restani, of the United States Court of International Trade, sitting by designation.

OPINION BY: Per Curiam

KEY QUOTE:

In the present case, the BIA expressly stated that “[w]hether a marriage was entered into in good faith is a factual question” subject to clear error review. CAR 177. And at the end of its decision, it emphasized that it could not “reverse an Immigration Judge’s decision simply because the facts could have been viewed differently,” concluding that it would not disturb an IJ’s ruling if it “was based on a permissible view of the evidence.” CAR 178. But these statements conflict with the BIA’s published authority holding that where the question is whether established facts meet a legal standard, the BIA may weigh the evidence differently than the IJ. See In re A-S-B-, 24 I. & N. Dec. at 497. Here, the established facts—subject to clear error review by the BIA—were that the couple married in Bangladesh in mid-2003, barely resided together during their marriage, divorced six months after Alom’s entry to the United States in 2005, and had no children or demonstrable marital property. But the BIA failed to acknowledge the de novo standard applicable to the mixed question of whether the established facts were sufficient to establish a good faith marriage under § 1186a(c)(4)(B). In fact, the BIA’s commentary implies that it applied only clear error review to the entirety of the good faith marriage determination (i.e., whether the established facts demonstrated that Alom entered his marriage in good faith) and did not contemplate its authority to reweigh the evidence or to conclude that the IJ’s legal conclusions were insufficient. See id. In sum, although the BIA properly reviewed the IJ’s credibility and other factual findings for clear error, it erred by not treating the ultimate determination of whether Alom met his burden as a mixed question of law and fact subject to de novo review. See, e.g., In re Moody, 2012 BIA LEXIS 40, at *1–2. Accordingly, we grant the petition and remand for the BIA to apply the appropriate standards of review. See Upatcha, 849 F.3d at 185–87.

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Speeding up a system that hasn’t mastered the basics of the law and due process. A prescription for disaster. An appellate body that doesn’t know what standards it’s applying (and this is hardly a “new” provision) is in deep trouble, as are those judges and litigants who look to the BIA for “expert” guidance in the law. And, it’s not going to be fixed by “know nothing” politicos at the DOJ!

PWS

12-23-18

 

 

 

Related posts:

  1. TAL @ CNN: TRUMP’S “GONZO” IMMIGRATION ENFORCEMENT POLICIES LIKELY TO FAIL AND ACTUALLY AGGRAVATE FORCES DRIVING UNDOCUMENTED MIGRATION!
  2. PROFESSOR MAUREEN SWEENEY ON WHY THE BIA DOESN’T DESERVE “CHEVRON” DEFERENCE – JEFF SESSIONS’S ALL OUT ATTACK ON THE INDEPENDENCE OF THE IMMIGRATION JUDICIARY IS EXHIBIT 1!
  3. FALSE EQUIVALENCY: No, “Trump’s Shutdown” Is Not A “Failure Of Both Parties” Or “Washington’s Fault” – It’s 100% On Trump & The GOP & Proves Beyond A Reasonable Doubt That They Are Incapable Of Governing In A Responsible & Reasonably Competent Manner!
  4. “THE 5-4-1 PLAN FOR DUE PROCESS IN IMMIGRATION COURT” — My Speech To The Association Of Deportation Defense Attorneys, NY City, March 21, 2019

HERE’S WHY NIELSEN’S LATEST ATTACK ON REFUGEES AND THE RULE OF LAW COULD BACKFIRE! – ALSO, AN ADDENDUM: “MY MESSAGE TO THE NDPA”

WHY NIELSEN’S LATEST ATTACK ON REFUGEES COULD BACKFIRE

 

  • “The Devil is in the Details.” Typical for this group of incompetents, nobody at DHS or in the Mexican Government actually appears to be ready to implement this “historic change.”
  • Expect chaos. After all, the ink wasn’t even dry on Judge Sullivan’s order in Grace v. Whitaker for USCIS to rewrite its credible fear “Policy Memorandum” to comply with law. Want to bet on whether the “credible fear” interviews in Mexico or at the border will be lawful? How about the reaction of Judge Sullivan if they ignore his order? (Nielsen and her fellow scofflaws might want to consult with Gen. Flynn on that one. This is one judge with limited patience for high level Government officials who run roughshod over the law, are in contempt of court, or perjure themselves.)
  • By screwing around with procedures, the Administration opens itself up for systemic challenges in more U.S. District Courts instead of being able to limit litigation to Courts of Appeals on petitions to review individual removal orders.
  • Every “panic attack” by this Administration on the rule of law and the most vulnerable energizes more legal opposition. And, it’s not just within the immigration bar and NGOs any more. “Big Law” and many of the brightest recent graduates of top law schools across the country are getting involved in the “New Due Process Army.”
  • By concentrating asylum applicants at a limited number of ports of entry, pro bono legal groups could actually find it easier to represent almost all applicants.
  • Representation of asylum seekers generally improves results, sometimes by as much as 5X.
  • It could be easier for individuals who are free and authorized to work in Mexico to obtain counsel and prepare their cases than it is for individuals detained in substandard conditions in obscure locations in the U.S.
  • Freed of the intentionally coercive and demoralizing effects of DHS detention, more applicants will be willing to fully litigate their claims, including taking available administrative and judicial appeals.
  • As more cases reach the Courts of Appeals (primarily in the 5th & 9th Circuits) more “real” Article III Judges will “have their eyes opened” to the absolute travesty that passes for “justice” and “due process” in the Immigration Courts under Trump.
  • Shoddily reasoned “precedents” from the BIA and the AG are already failing in the Article III Courts on a regular basis. Three “bit the dust” just within the last week. Expect this trend to accelerate.
  • The 5th and 9th Circuits will find their dockets overwhelmed with Not Quite Ready For Prime Time (“NQRFPT”) cases “dumped” on them by DOJ and EOIR and are likely to react accordingly.
  • The last massive assault on Due Process in Immigration Court by the DOJ under Ashcroft basically caused a “mini-rebellion” in the Article III Courts. There were numerous “remands for redos” and Circuit Court rulings harshly reversing and publicly criticizing overly restrictive treatment of asylum cases by Immigration Judges and the BIA, particularly in the area of credibility determinations. Expect the Circuit Courts to “reverse and revise” many of the current anti-asylum precedents from the BIA and the AG.
  • With almost universal representation, a level playing field supervised by Article III Courts, and all Immigration Judges actually forced to fairly apply the generous standards for asylum enunciated by the Supremes in INS v. Cardoza-Fonseca, and by the BIA in the (oft cited but seldom actually applied) Matter of Mogharrabi, I wouldn’t be surprised to see grant rates for Northern Triangle applicants exceed 50% (where most experts believe they belong).
  • Overall, there’s a respectable chance that the end result of this ill-conceived policy will be an exposure of the rampant fraud, intellectual dishonesty, and disregard for the true rule of law in this Administration’s treatment of bona fide asylum seekers.
  • Inevitably, however, asylum seekers will continue to die in Mexico while awaiting hearings. DHS politicos probably will find themselves on a regular basis before enraged House Committees attempting to justify their deadly, cruel, and incompetent policies. This will be a “culture shock” for those used to the “hear no evil, see no evil” attitude of the GOP House.
  • The Administration appears to have “designed” another of their “built to fail” systems. If they shift the necessary Immigration Judges to the border, the 1.1 million backlog elsewhere will continue to mushroom. If they work on the backlog, the “border waiting line” will grow, causing extreme pressure from the Mexican Government, Congress, and perhaps the Article III Courts. Every death of an asylum seeker (there were three just within the last week or so) will be laid at DHS’s feet.

NOTE TO THE NDPA:

 The outstanding historical analysis by Judge Emmet Sullivan in Grace v. Whitaker illustrates what we already know: For years, the Executive Branch through EOIR has been intentionally applying “unduly restrictive standards” to asylum seekers to artificially reduce the number of grants in violation of both the Refugee Act of 1980 and our international obligations. This disingenuous treatment has particularly targeted bona fide asylum seekers from the Northern Triangle, those asserting claims based on a “particular social group,” unrepresented individuals, women, and children.

Worse yet, this totally cynical and disingenuous Administration is using the intentionally and unlawfully “skewed system” and “illegal denials” as well as just downright fabricated statistics and knowingly false narratives to paint a bogus picture of asylum seekers and their lawyers as the “abusers” and the Government as the “defenders of the rule of law.” What poppycock, when we all know the exact opposite is the real truth! Only courageous (mostly pro bono) lawyers and some conscientious judges at both the Immigration Court and Article III levels are standing up for the real rule of law against a scofflaw Administration and its outrageous plan to send genuine refugees back into harm’s way.

Nowhere in the racially charged xenophobic actions and rhetoric of Trump, Sessions, and Whitaker, nor in the intentionally derogatory and demonstrably dishonest rhetoric of Nielsen, nor in the crabbed, intentionally overly restrictive interpretations of asylum law by today’s BIA is there even a hint of the generous humanitarian letter and spirit of the Refugee Act of 1980 and the 1951 UN Convention on Refugees or the “non-narrow” interpretation of “particular social group” so well described and documented by Judge Sullivan. On the contrary, we can well imagine folks like this gleefully and self-righteously pushing the refugee vessel St. Louis out to sea or happily slamming the door in the face of desperate Jewish refugees from Europe who would later die in the Holocaust.

Now is the time to force the Article III Courts and Congress to confront this Administration’s daily violations of law and human rights. We can develop favorable case precedents in the Article III Courts, block unethical and intentionally illegal interference by the Attorney General with Due Process in Immigration Court, and advocate changes in the law and procedures that will finally require the Executive Branch and the Immigration Courts to live up to the abandoned but still valid promise of “becoming the world’s best tribunals, guaranteeing fairness and Due Process for all.” And, the “all” certainly includes the most vulnerable among us: refugees claiming asylum!

In the end, through a combination of the ballot box, Congress, the Article III Courts, and informed public opinion we will be able to thwart the rancid White Nationalist immigration agenda of this Administration and return honest, reasonable Government that works within the Constitution and governs in the overall best interests of our country to the United States.

Thanks for all you do! Keep fighting the “good fight!”

Go for it!

Due Process Forever! Scofflaw Administration Never!

PWS

12-21-18

Related posts:

  1. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  2. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”
  3. REPORT FROM FBA, AUSTIN: Read My Speech “JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW”
  4. COMPLICITY HAS COSTS:  Article III Judges’ Association Apparently Worries That Trump, Barr, GOP Toadies Starting To “Treat Them Like Immigration Judges” — Do They Fear Descent To Status Of Mere Refugees, Immigrants, “Dreamers,” Unaccompanied Children, Or Others Treated As “Less Than Persons” By Trump, 5th Cir., 11th Cir., 9th Cir., & The Supremes’ “J.R. Five?” 

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

172209.P

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.

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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

 

Related posts:

  1. DERELICTION OF DUTY: 4th Cir. Exposes BIA’s Incompetence & Anti-Asylum Bias, Yet Fails To Confront Own Complicity — SINDY MARILU ALVAREZ LAGOS; K.D.A.A., v. WILLIAM P. BARR
  2. IMMIGRATION COURTS: After Two Years Of Trump Administration Anti-Immigrant Shenanigans At EOIR, The Backlog Has Mushroomed To 975,298, Morale Has Hit Rock Bottom, & Due Process Is Mocked Every Day — There Is A Solution, But Will Our Republic Survive Enough To Reach It?
  3. 🏴‍☠️☠️⚰️🤮👎INJUSTICE WATCH: 4th Cir. Judge Stephanie Thacker Cogently Castigates Colleagues For Misapplying “Standard Of (No) Review” To Approve BIA’s Sloppy, Clearly Erroneous, Deadly Anti-Asylum Farce! – Portillo-Flores v. Barr — – “[A]t worst nonsensical and cursory at best”
  4. HON. JEFFREY S. CHASE: The History Of A Flawed Judiciary; The Intentional Tilting Of Asylum Law Against Asylum Seekers; The Farce Of Justice In The Immigration Courts; The Need For An Independent Article I Court!

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

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.

 

Interpreting Pereira: A Hint of Things to Come?

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Jeffrey S. Chase is an immigration lawyer in New York City.  Jeffrey is a former Immigration Judge, senior legal advisor at the Board of Immigration Appeals, and volunteer staff attorney at Human Rights First.  He is a past recipient of AILA’s annual Pro Bono Award, and previously chaired AILA’s Asylum Reform Task Force.

Blog     Archive     Contact

Republished By Permission

 

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My prior commentary on this bureaucratic assault on Due Process is here: https://wp.me/p8eeJm-3hS

It’s yet more “backlog jacking Aimless Docket Reshuffling” — but this time with an evil motive.

EOIR no longer even pretends to function like a fair and impartial court system. Time for Article I!

PWS

12-13-18

 

Related posts:

  1. REPORT FROM FBA, AUSTIN: Read My Speech “JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW”
  2. REPORT # 2 FROM FBA, AUSTIN: Read My Speech “APPELLATE LITIGATION IN TODAY’S BROKEN AND BIASED IMMIGRATION COURT SYSTEM: FOUR STEPS TO A WINNING COUNTERATTACK BY THE RELENTLESS ‘NEW DUE PROCESS ARMY’”
  3. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  4. COMPLICITY HAS COSTS:  Article III Judges’ Association Apparently Worries That Trump, Barr, GOP Toadies Starting To “Treat Them Like Immigration Judges” — Do They Fear Descent To Status Of Mere Refugees, Immigrants, “Dreamers,” Unaccompanied Children, Or Others Treated As “Less Than Persons” By Trump, 5th Cir., 11th Cir., 9th Cir., & The Supremes’ “J.R. Five?” 

GONZOISM LIVES: Whitaker Delivers “Gonzo Apocalypto Like” Racially Tinged Xenophobic Rant On Immigration Enforcement, Including Bogus Stats and False Narratives — Targets U.S. Courts For Upholding Constitution & Rule Of Law Against White Nationalist Assault!

https://apple.news/ALcj5KtVpQ-6BYe6egb-ipw

R.G. Ratcliffe reports for Texas Monthly:

The word had come down from the U.S. Department of Justice last summer: people who enter the country without authorization are to be referred to as “illegal aliens,” not “undocumented immigrants.” So when Acting Attorney General Matthew Whitaker was in Austin Tuesday to give a pep talk to the U.S. attorneys there, and he referred to these immigrants ten times as “illegal aliens,” and once resorted to a slang term that is sometimes considered racist as he described Austin as a Top 20 city, with “over 100,000 illegals” living in the area.

Immigrant advocates for years have tried to dissuade people from using terms like “illegal alien” or “illegal immigrant” because a person cannot of themselves be illegal. A person can commit an illegal act, such as entering the country without authorization or in violation of the law. Terms such as these, advocates say, dehumanize immigrants. The Associated Press in 2013 removed the term “illegal alien” from proper usage for journalists for this very reason.

But the Department of Justice memo says that since the word “undocumented” does not appear in the U.S. Code, attorneys and public information officers should refer to people who enter the country illegally as “illegal aliens.” In the most literal sense, this may be true, but it also advances the Trump Administration’s efforts to portray all immigrants who enter the country illegally as part of a force of darkness.

“More important than the financial cost we pay is the cost we pay in American lives. Massive illegal immigration makes all of us less safe,” Whitaker told the attorneys.

“We know that the vast majority of the cocaine, methamphetamine, heroin, and fentanyl that are killing record numbers of Americans was not made in this country. It came over the Southern border. We also know that vicious gangs like MS-13 recruit new members from the tens of thousands of unaccompanied minors who cross our border illegally every year. The result is that Americans die every year because we do not have a secure Southern border.” He did not mention that MS-13 got its start on the streets of Los Angeles.

Whitaker pointed to the case of Juan Lopez in Austin. Lopez last month was sentenced to 49 years in prison for raping a family friend as the woman’s child watched. Lopez had been deported after serving a sentence for homicide and then re-entered the country illegally. “It is a crushing failure to secure our border and just one example of where we can do better.”

Without giving exact details, Whitaker said the U.S. Border Patrol had apprehended more than 50,000 people in the past two months who have crossed the U.S. border illegally from Mexico, including 23,000 people in family units. “That’s the size of a small city every single month.” He said the estimated 11 million people living in the United States illegally is equal to the population of Georgia.

Whitaker repeatedly emphasized the prosecution of people who enter the country illegally, but he never mentioned President Trump’s push for a border wall. He did, however, criticize federal courts that have blocked Trump’s efforts to block immigration.

Whitaker took no questions from the news media gathered for the event. It was one-way messaging. Journalists did not have a chance to ask about the wall or whether Whitaker thought the millions of people already living in the country illegally should be deported. We didn’t get a chance to ask whether immigration reform laws would ameliorate the situation. There were no questions about reports that he is under consideration to serve as the president’s chief of staff, or the status of a Department of Justice investigation into whether Interior Secretary Ryan Zinke used his office for personal gain.

Whitaker’s time in office is short. Former Attorney General William Barr has been nominated by Trump to replace former Attorney General Jeff Sessions. But while he holds the office, Whitaker should know a news conference without questions is just a dog and pony show that depends on media complicity.

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Here’s the “full text” of Whitaker’s Speech: https://t.co/KeNU8OQXJd

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  • Whitaker continues to spread the false narratives attempting to connect migrants with increased crime and drug trafficking; there is no such documented connection;
  • Whitaker also tries to connect migrants with gang activities; but, it’s much more likely that an asylum applicant from the Northern Triangle will be fleeing from gangs than a member of one;
  • Whitaker ignores the U.S.’s own role in both creating the gang problem in the Northern Triangle (it actually was “deported” from Los Angeles, as noted by Ratcliffe) and following questionable strategies to combat gangs in both the U.S. and the Northern Triangle;
  • The vast, vast majority of the 11 million or so undocumented individuals in the U.S. are not criminals; at worst, they are just seeking safety and a better life for themselves and their families, very understandable human tendencies; even assuming that they ultimately don’t belong here, why intentionally demean and dehumanize them by using the racially tinged term “illegal alien” and “illegals,” rather than treating them with the respect and humanity due all human beings;
  • The comparison between the “State of Georgia” and the number of undocumented individuals is directly out of one of Sessions’s inflammatory speeches to EOIR; the real point is that undocumented individuals are like our “51st state” — they contribute much to our economy and society (just ask those who worked for Trump) and ask for relatively little — Trump and the GOP have routinely and disgracefully exploited their labor and contributions while denying their fundamental humanity;
  • Well over one million of the undocumented population are actually here with legal permission: mainly through DACA and TPS; while the Administration would like to terminate those programs, they have not yet been able to do so; consequently, the individuals are not here “illegally” — they can’t be removed until their current status is terminated.
  • Whitaker mis-states the asylum approval rate: it’s actually 35% for 2018, not “a five-year average of 20%” as Whitaker falsely claims (since the 35% was a “recent low” the real five-year average per TRAC is much higher, well in excess of 40% — indeed up until FY 2016, asylum approvals actually exceeded denials, until the Trump Administration started interfering with the system); for the Northern Triangle it’s 23%, 20%, and 18% for El Salvador, Guatemala, and Honduras respectively, multiples of Whitaker’s false claim of 9%; and the “allowed to remain in the U.S.” for asylum applicants from El Salvador, Guatemala and Honduras whose cases were decided by Immigration Judges during FY 2018 were 31%, 25%, and 24% respectively);
  • More important, except for the restrictionist right, nobody familiar with our asylum system doubts that the approval rate for the Northern Triangle would be much higher, perhaps twice as high or more, if individuals were 1) given reasonable access to lawyers; 2) time to gather evidence and prepare their cases; and 3) had their claims adjudicated by a fair, impartial, apolitical, independent judges, well-trained in asylum law, and committed to the generous principles established by the Supremes in Cardoza-Fonseca (not today’s politicized and captive EOIR);
  • Many of those denied asylum, whether properly or not, clearly face harm or death upon return — but, Whitaker doesn’t admit that we’re really knowingly returning individuals to possible death;
  • Actually the Federal Courts are the ones upholding the “rule of law” against the efforts of biased, unqualified, political hacks like Whitaker who are committed to carrying out a racist, White Nationalist agenda that mocks our Constitution and our national values.
  • As noted by Ratcliffe, Whitaker lacked the guts to take questions; not really surprising for someone so committed to various false and misleading narratives.

The appointment of Whitaker as Acting AG is every bit as much of a national disgrace as the tenure of White Nationalist Jeff “Gonzo Apocalypto” Sessions. That Trump’s next AG Bill Barr called Sessions “outstanding” does not bode well for the rule of law, or the legal rights and human dignity of people of color and other vulnerable groups who are the most in need of those protections.

Fortunately, the New Due Process Army is in the field and “ready for action” against the further abuses planned by Whitaker and Barr.

PWS

12-12-18

Related posts:

  1. GONZO’S WORLD: WHITE NATIONALIST AG MAKES VICIOUS UNFOUNDED ATTACK ON REFUGEES & THEIR ATTORNEYS THE CENTERPIECE OF HIS SPEECH TO LARGEST CLASS OF INCOMING U.S. IMMIGRATION JUDGES — “Good lawyers using all their talents and skills work every day … like water seeping through an earthen dam to get around the plain words of (immigration law) to advance their clients’ interests.”
  2. PROFESSOR STEPHEN LEGOMSKY IN USA TODAY: Gender Is Clearly a “Particular Social Group” – Congress Must Amend The Law To Insure That Neither Bureaucratic Judges Nor Political Hacks Like Sessions & His Ilk Can Deprive Women & LGBTQ Individuals Of The Protections They Need & Deserve!
  3. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  4. COMPLICITY HAS COSTS:  Article III Judges’ Association Apparently Worries That Trump, Barr, GOP Toadies Starting To “Treat Them Like Immigration Judges” — Do They Fear Descent To Status Of Mere Refugees, Immigrants, “Dreamers,” Unaccompanied Children, Or Others Treated As “Less Than Persons” By Trump, 5th Cir., 11th Cir., 9th Cir., & The Supremes’ “J.R. Five?” 

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.

 

 

 

 

 

 

 

 

Related posts:

  1. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  2. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”
  3. HON. JEFFREY CHASE: Speaking Out Against The “Notable Minority” Of U.S. Immigration Judges Who Demonstrated Bias Against Women & Asylum Seekers – “Think about that: some federally appointed immigration judges cheered the fact that women who had been violently raped and beaten in their country can no longer find refuge here, and will be sent back to face more violence, and possibly death. Will there be any consequences for their actions? Were the many outstanding immigration judges who have been proud to grant such cases in the past, who were saddened and sickened by this decision, able to openly jeer or weep or curse this decision? Or would that have been viewed as dangerous?”
  4. HERE’S WHY NIELSEN’S LATEST ATTACK ON REFUGEES AND THE RULE OF LAW COULD BACKFIRE! – ALSO, AN ADDENDUM: “MY MESSAGE TO THE NDPA”

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

 

RESOURCES

 

EVENTS

 

ImmProf

 

Monday, December 10, 2018

Saturday, December 8, 2018

Friday, December 7, 2018

Thursday, December 6, 2018

Wednesday, December 5, 2018

Tuesday, December 4, 2018

Monday, December 3, 2018

 

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

Related posts:

  1. BIA SEEKS TO REPEAL CAT BY MISINTERPRETATION; MUSALO’S FACT FINDING MISSION TO EL SALVADOR SHOWS MALICIOUS ABSURDITY OF REGIME’S BOGUS “SAFE THIRD COUNTRY” ASSAULT ON HUMAN RIGHTS; 9th & 11th CIRCUITS CONTINUE TO TANK ON THE RULE OF LAW; & OTHER LEGAL NEWS ABOUT THE WHITE NATIONALIST REGIME & THE RESISTANCE — The Gibson Report — 12-10-19 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group
  2. THE GIBSON REPORT — 05-13-19 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group
  3. DAG ROSENSTEIN INADVERTENTLY MAKES COMPELLING ARGUMENT FOR INDEPENDENT ARTICLE I U.S. IMMIGRATION COURT IN SPEECH TO NEW JUDGES — Places Emphasis On Executive, Fealty To Attorney General, Not Independence. Impartiality, & Insuring Due Process! — REAL “Courts” Don’t Answer to Prosecutors!
  4. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 

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.

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Jeffrey S. Chase is an immigration lawyer in New York City.  Jeffrey is a former Immigration Judge, senior legal advisor at the Board of Immigration Appeals, and volunteer staff attorney at Human Rights First.  He is a past recipient of AILA’s annual Pro Bono Award, and previously chaired AILA’s Asylum Reform Task Force.

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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

 

Related posts:

  1. MARK JOSEPH STERN @ SLATE: GONZO’S GONE! — Bigoted, Xenophobic AG Leaves Behind Disgraceful Record Of Intentional Cruelty, Vengeance, Hate, Lawlessness, & Incompetence That Will Haunt America For Many Years!
  2. MARIA SACCHETTI IN WASHPOST: INSIDE THE “NAG” (NEW AMERICAN GULAG) — CRUEL, INHUMAN, DEGRADING TREATMENT APPEARS TO BE WIDESPREAD IN SO-CALLED “CIVIL” IMMIGRATION DETENTION! — Where’s The Outrage? — Where’s The Congressional Oversight? — Why Aren’t Guys Like “Gonzo” & Homan Who Knowingly Promote Violations Of Legal & Human Rights As (Unlawful) “Immigration Deterrence” Under Investigation For Their Roles In Violating Human, Constitutional Rights!
  3. GONZO’S WORLD: THIS IS WHY HE STAYS: UNDERNEATH ALL THE “TRUMP NOISE” SESSIONS IS METHODICALLY ERADICATING DUE PROCESS, PERVERTING THE LAW, & TURNING ONE OF THE LARGEST FEDERAL COURT SYSTEMS INTO A “KILLING FLOOR” TARGETING OUR MOST VULNERABLE & DESERVING REFUGEES! — “[Sessions] is dumbing down the judges and treating them like assembly-line workers whose only job is to stamp out final orders of removal.”
  4. 🏴‍☠️☠️🤮👎🏻IN NYT OP-ED, FORMER TRUMP DOJ ATTORNEY ERICA NEWLAND ADMITS COMPLICITY! — Having Undermined Democratic Institutions, Sold False Narratives To (Too Often Willing) Federal Judges, & Participated In Racist-Inspired “Dred Scottification” (“Dehumanization”) Of the Other Is Actually a BIG Deal! — So Is The Destruction Of Due Process & Fundamental Fairness In The Immigration Courts (Now, “Clown Courts”🤡, or “America’s Star Chambers”☠️) 

WE EX-DOJ FOLKS AREN’T THE ONLY ONES CHALLENGING WHITAKER’S QUALIFICATIONS: WASHINGTON POST EDITORIAL SAYS “Mr. Whitaker should not have been acting attorney general for a day.”

https://www.washingtonpost.com/opinions/the-still-unanswered-questions-surrounding-matthew-whitaker/2018/12/05/88f3f32e-f8c4-11e8-863c-9e2f864d47e7_story.html?utm_term=.6cb55b7e9ff5

By Editorial Board

December 5 at 6:54 PM

DID ACTING attorney general Matthew G. Whitaker examine the memo that special counsel Robert S. Mueller III released Tuesday? Has he seen the material that Mr. Mueller redacted from the document? Has he sought the advice of Justice Department ethics experts on how much he should be involved in the Russia investigation? If so, what did those experts say?

A month into Mr. Whitaker’s reign as the nation’s chief law enforcement officer, these and other questions remain unanswered. A Justice Department spokeswoman declined to answer when we put them to her on Wednesday. Also mysterious is when President Trump intends to nominate a permanent attorney general. The White House did not respond when we asked. And then there’s the still-contested question of whether Mr. Whitaker’s appointment violated the Constitution.

All of these questions matter, because Mr. Mueller’s investigation continues, and Mr. Whitaker had previously attacked the probe. His past statements alone would raise questions about his judgment and the reasoning behind Mr. Trump’s desire for him to lead the Justice Department. Though Deputy Attorney General Rod J. Rosenstein remains in charge of the Mueller investigation, it is unclear whether the acting attorney general has butted in or intends to. Senators have pushed to pass a bill that would protect Mr. Mueller from improper firing, the approval of which would send a message to Mr. Trump and Mr. Whitaker to keep their hands off. But Senate Republicans have blocked it, and Mr. Whitaker might find subtle ways of undermining the probe.

Mr. Whitaker does not belong at the top of the Justice Department, regardless of his stance on Mr. Mueller. His résumé would be thin even for an inferior post at the department. His past involvement with a company the Federal Trade Commission accused of being a scam raises further red flags. He holds crackpot views on judicial power. His primary qualification seems to be that he gets along with Mr. Trump and other White House staff, while Mr. Rosenstein, whom the Senate has vetted and who should be running the department right now, does not. There is a reason the Constitution bars the president from appointing anyone he wants at any time to top executive-branch positions: to prevent the Mr. Whitakers of the world from suddenly controlling one of the most powerful governmental organizations on the planet.

Yet, if the Trump administration’s view of the law holds, Mr. Whitaker could wield the powers of the attorney general’s office for most of the rest of Mr. Trump’s term. Senate Democrats are upset at the lack of vetting, sending a letter to the department on Tuesday noting that ethics officials only just got through certifying Mr. Whitaker’s financial disclosures, and that “the Department has not produced prior versions of Mr. Whitaker’s financial disclosures, any ethics agreements he entered into with the Department, or any other ethics-related counseling he has received.” Senate Republicans, on the other hand, have mostly insisted that the president will appoint a permanent replacement soon.

It has already been a month. Mr. Whitaker should not have been acting attorney general for a day. It is time the Senate demands a reasonable replacement.

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

Here’s my post yesterday about the letter by members of “Our Gang” of retired Immigration Judges and other DOJ employees: https://wp.me/p8eeJm-3mr

Like this editorial, I think Whitaker’s qualifications and resume wouldn’t have gotten him into the “Attorney General’s Honors Program” nor would it have gotten him to the “Interview Round” for selection as a U.S. Immigration Judge. It’s worth remembering that among the many other “trivializations of justice at Justice” during his tenure, Sessions made this supremely unqualified and unethical guy his “Chief of Staff.” It’s the “Ethically and Professionally Challenged” advising the “Morally and Legally Challenged.”

It does seem to me that former AG Bill Barr would be capable of bringing ethics and professionalism back to the DOJ. My only questions are 1) why would he want the job; and 2) why would Trump want a “real” Attorney General who knows that he works for “We the People,” not Donald Trump, the Trump family,  or their corrupt cronies and who, while staunchly conservative, is not known as a racist, misogynist, or xenophobe? Unlike Sessions, Barr also has a reputation as a capable and experienced manager who can see that justice is dispensed in a fair and unbiased manner, both of which are an anathema to guys like Sessions and Trump.

One thing I remember learning abut Bill Barr “after the fact” was that following the 1992 election (when I was in private practice), he reportedly specifically refused pressure to make some key high level career “midnight appointments” at EOIR, saying that it properly should be left for his successor in the Clinton Administration. That turned out to be Attorney General Janet Reno (who eventually appointed me to the position of BIA Chair, although that was not one of the then-existing vacancies involved).

PWS

12-06-18

Related posts:

  1. 🤡CLOWN CAPITOL:  J.R. PRESIDES OVER GOP CLOWN SHOW HE HELPED CREATE — Empowering The Koch Bros, Suppressing Minority Votes, Enabling GOP Gerrymandering, Ignoring Invidious Racial & Religious Motives, Turning A Blind Eye To Lies & Pretexts, It All Contributed To The Arrogant Display Of GOP Dishonesty & Impunity Now On Public Display In The Senate! — Plus Bonus Friday Mini-Essay: “Profiles in Fecklessness”
  2. IMMIGRATION COURTS: After Two Years Of Trump Administration Anti-Immigrant Shenanigans At EOIR, The Backlog Has Mushroomed To 975,298, Morale Has Hit Rock Bottom, & Due Process Is Mocked Every Day — There Is A Solution, But Will Our Republic Survive Enough To Reach It?
  3. WE KNOW THAT SESSIONS, WHITAKER, & BARR HAVE TURNED THE DOJ INTO A LEGAL, MORAL, PROFESSIONAL, & ETHICAL CESSPOOL — Some Federal Judges Are Beginning To Take Notice: “To say the least, it is disappointing that [DOJ] counsel, after consulting with other counsel including ‘prosecutors and appellate attorneys’ in this District’s United States Attorney’s office, submitted a legal memorandum to the Court that failed to acknowledge contrary case law that did not support its position.”
  4. “KILLER ON THE ROAD” – EMBOLDENED BY THE COMPLICITY OF THE “ROBERTS’ COURT,” GOP ABDICATION OF LEGISLATIVE OVERSIGHT, & BREAKDOWN OF DEMOCRATIC INSTITUTIONS AND VALUES, REGIME APPARENTLY PLANNING EXTRALEGAL MOVE TO KILL MORE OF THE MOST VULNERABLE REFUGEES – Refugee Women, Children, LGBTQ Community, Victims Of Government-Enabled Gangs Said To Among Targets of Miller/Trump White Nationalist “American Death Squads!”

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

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.

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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

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