Department of Justice – Page 15 – immigrationcourtside.com

🇺🇸⚖️🏅A LIFE DEVOTED TO JUSTICE: JOSEPH GERALD “GERRY” HEBERT (1949-2023): Voting Rights Icon, Teacher, Community Activist, Inspiration To Upcoming Generations!

https://www.legacy.com/us/obituaries/washingtonpost/name/joseph-hebert-obituary?id=53065154

Joseph Hebert Obituary

Hebert

Joseph Gerald Hebert

Joseph Gerald Hebert (Gerry), Voting Rights Attorney of Alexandria, Virginia passed away at the age of 74 on September 7, 2023.

Gerry was born in Worcester, Massachusetts to Joseph Gerald Laurie Hebert and Adeline Agnes Whitehead Hebert on February 13, 1949. A graduate of St. John’s High School in Shrewsbury, Gerry went on to earn his bachelor’s degree from Stonehill College and Juris Doctor from Suffolk University Law School.

A respected Civil Rights and Voting Rights attorney, Gerry worked in the U.S. Department of Justice’s Civil Rights Division from 1973 to 1994. While at the DOJ, he won acclaim for his work in school desegregation cases and served as the lead attorney in voting rights and redistricting lawsuits, including several cases decided by the U. S. Supreme Court. Post-DOJ, Gerry spent time in private practice specializing in election law and the Voting Rights Act. His expertise led him to the Campaign Legal Center in 2004, serving as Executive Director until 2018, before retiring from the organization in 2021. During this time, Gerry was also an adjunct professor at Georgetown University Law Center and developed a thriving intern program for CLC. He also taught at University of Virginia, American University, and New York Law School. He was awarded the Wasserstein Fellowship at Harvard Law School and Mentor in Residence at Yale Law School. In 2015, Gerry spearheaded the CLC effort to establish the Voting Rights Institute (VRI), a partnership with the American Constitution Society and Georgetown Law, which created opportunities for law students and graduates to learn how to litigate voting rights cases.

Gerry’s advocacy extended beyond his professional career. He served as PTA president at George Mason Elementary School, where he was a fixture in the hallways for years, his voice on the loudspeaker delivering the morning announcements. He worked particularly hard to ensure that families of color were involved in their children’s education, and that the needs of George Mason Elementary were made known to the School Board.

As ASA soccer coach to many of Alexandria’s youth, Gerry shared his own athletic skills, always ending a weekly practice – at the request of the team – punting the ball straight up in the air, multiple stories high.

A man of strong faith and an enthusiastic choir member, Gerry served the Fairlington United Methodist Church community in many capacities including lay leader.

Gerry worked tirelessly to help Alexandrians in need, volunteering with ALIVE! Inc. since 1986. He dedicated his time and talents, serving as ALIVE’s president, director of development, chair of the furniture program, and Last Saturday food distribution coordinator. Earlier this year, Gerry was awarded Volunteer Alexandria’s 2023 Joan White Grassroots Volunteer Service Award for his commitment to ALIVE!’s mission, specifically for his work to open both of ALIVE!’s beautiful and welcoming food hubs, ensuring that Alexandrians maintained their integrity while receiving food and critical services.

Gerry approached his personal life with the same passion and purpose. He was omnipresent in his children’s lives as he filled the roles of brown bag lunch maker, short order breakfast cook, and overprotective parent. He could be found lifting his grandchildren to top the Christmas tree, eating Oreos and drinking straight from the milk carton in the middle of the night, or dancing in the street with Victoria during a red light at the intersection of Braddock and Russell. He would “give you a nickel” if you could name the artist from the 60’s singing on the radio. He’d send you recipes for the perfect pork chop, articles about the latest threat to justice and democracy, and a heads up about recent sunscreen recalls. He was deeply devoted to playing the guitar, discovering the best deal on good wine, and playing the lottery. He never said goodbye without also holding up his hand to sign “I love you.” He had the timing of a stand-up comedian, all the wisdom of a perfect storyteller, and an unfulfilled desire to travel the world. He was just beginning to discover what retirement was like and between the Rock ‘n Roll cruises he took with Victoria, his long ponytail, and his Bohemian pants, he confirmed his family’s suspicion that he really did dream of being the next great American folk singer. He was a lively wedding dancer, a proficient recaller of sports stats, and even attended MLB professional umpire school. Gerry was an expert magician, the friend you were thankful to call yours, and as far as his family knew, he was “the strongest man in the world.”

Gerry is preceded in death by his mother and father.

Gerry is survived by his wife of 37 years, Victoria, his children, Christy Przystawik (Tom Przystawik), Greta Gordon (Jim Gordon), Brooke Harris (Ben Harris), Josh Hebert, and Marlea Hebert (Anthony DiBerardinis). His brother, Tom Hebert (Maria Hebert), and his 10 grandchildren, Gunter, Annika, Amelie, Harper, Sadie, Bailey, Brighid, Adrian, Tyler, and Abe.

A funeral service will be held on Saturday, September 16, 2023 at Fairlington United Methodist Church.

In lieu of flowers donations can be made in honor of Gerry to The Campaign Legal Center, ALIVE, Lawyers’ Committee for Civil Rights Under Law and Fairlington United Methodist Church (music program).

Published by The Washington Post on Sep. 10, 2023.

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

Gerry’s son Josh Hebert is one of our son Will’s closest friends, growing up in Alexandria and attending Alexandria City Public Schools together. Our church, Beverley Hills Community Methodist Church, has been part of ALIVE’s “grass roots” programs to make Alexandria a better place to live for families and individuals of all income levels. I also spoke at Fairlington Methodist on immigration and the need for reform at a public forum that Gerry helped organize.

Gerry was one of the former DOJ attorneys to courageously speak out publicly against the appointment of notorious White Nationalist and civil rights underminer then-Senator Jeff Sessions to be U.S. Attorney General under Trump. See.e.g., https://immigrationcourtside.com/2017/01/04/sessions-no-civil-rights-hero-say-former-doj-cvil-rights-attorneys/. Sessions proved to be just as horrible and unqualified for the job as Gerry had warned.

Gerry was an inspiration and role model for the “new generation” of civil rights attorneys dedicated to making equal justice in America a reality rather than an unfulfilled promise!

Yesterday’s “Courtside” post highlighted the words of Justice Ketanji Brown Jackson that embodied many of Gerry’s life values;

And I am confident that, just like generations of Americans before us, we are up to the challenge. Armed with our history, well-prepared by our past, and secure in the knowledge of what we have been through and where we’re headed, we will triumph in the valiant struggle to promote constitutional values and to obtain freedom and justice for all.

Due Process Forever and deep appreciation to a great American who represented “due process in action” and leaves a vibrant legacy for future generations. A life well-lived indeed!

PWS

09-18-23

🇺🇸⚖️ THE GOP RIGHT WING WANTS TO WHITEWASH AMERICAN HISTORY — JUSTICE KETANJI BROWN JACKSON SAYS WE MUST TEACH THE TRUTH ABOUT THE ROLE OF RACISM IN AMERICA —“If we are going to continue to move forward as a nation, we cannot allow concerns about discomfort to displace knowledge, truth, or history.”

Dan Rather
American Journalist
PHOTO: Creative Commons

Justice Katenji Brown Jackson — Judge (now Justice) Ketanji Brown Jackson, honoree at the Third Annual Judge James B. Parsons Legacy Dinner, February 24, 2020, University of Chicago Law School. Photographer Lloyd DeGrane.
Creative Commons License

Dan Rather and Elliot Kirschner write on Steady on Substack:

https://open.substack.com/pub/steady/p/60-years-ago-in-birmingham?r=330z7&utm_medium=ios&utm_campaign=post

60 Years Ago in Birmingham

September 15, 1963 — 60 years ago today. An act of murderous cowardice in Birmingham, Alabama, shocked a nation. A bomb at the 16th Street Baptist Church placed by Klansmen killed four girls as they attended Sunday school. Many others were wounded.

As Dr. Martin Luther King Jr. would say in eulogy, “These children — unoffending, innocent, and beautiful — were the victims of one of the most vicious and tragic crimes ever perpetrated against humanity.”

Let us pause in remembrance. Please say their names aloud. They deserve our recognition:

Denise McNair, age 11.

Carole Robertson, 14.

Addie Mae Collins, 14.

Cynthia Wesley, 14.

This horrific act is not ancient history. Some of you were of memory age at the time it happened. And it was not an isolated act of violence. Rather, it was part of a bloody, tragic, and unjust campaign of terror that stretches from before our country’s birth into our present age. It is a story of murder, torture, rape, lynching, and the tearing apart of families. It is a story of Jim Crow, redlining, and voter suppression. And now it is a story that powerful forces in our country would like us to forget, or at least sanitize from the unadulterated truth.

And yet, throughout our history, bigotry has not gone unanswered. Women and men of courage and fortitude have reminded us that we should walk a path toward equality and justice. Many have sacrificed greatly in service to our nation’s highest ideals.

This bombing was an act of domestic terrorism meant to stifle a growing Civil Rights Movement. It had the opposite effect. Less than a year later, President Lyndon Johnson signed the groundbreaking Civil Rights Act.

Progress has been made. However, we are reminded in our current age that the forces of white supremacy will never give up their privilege without a fight. We see more acts of racist violence, more denying of reality, more attempts to rewrite history. It is a cynically destructive ploy for power at the expense of our national unity and the truth.

All this was on the mind of Supreme Court Justice Ketanji Brown Jackson this morning, when the first Black woman to serve on the court went to the 16th Street Baptist Church to commemorate the bombing’s anniversary. It was the justice’s first trip to Alabama, but she told those in the pews, “I felt in my spirit that I had to come.”

What she subsequently shared was an acknowledgement of the past and an admonition for our present and our future. We were moved by her words and want to include some of them here, as well as a video of the entire speech, should you wish to watch.

Justice Jackson began by contrasting the story of the Birmingham bombing and her own personal journey.

. . . .

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

Read the complete article, including Justice Jackson’s remarks and pictures of the murdered girls, at the link. Don’t let GOP extremists get away with rewriting our history to match their White Nationalist myths! It’s a key part of their scheme to “dumb down” American education and intellectual debate on all levels!

🇺🇸 Due Process Forever!

PWS

09-17-23

🤯HOW LONG DID IT TAKE THE USG TO GRANT A “SLAM DUNK” 🏀 ASYLUM CASE OF A MEXICAN JOURNALIST? — 15 YEARS! — No Wonder This Dysfunctional, Unfair System Has Endless Backlogs!

Low Hanging Fruit — Harvesting the “low hanging fruit” — the many clearly grantable asylum cases — has proved remarkably elusive for EOIR — under Administrations of both parties!
IMAGE: Creative Commons 2.0

From The National Press Club:

https://drive.google.com/file/d/1QhiXmsGEBd6YQn8lYieaP8GUt7QiEnWJ/view?usp=sharing

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

That Mexico is one of the most dangerous countries in the world for journalists is hardly “rocket science.” 🚀 See, e.g., https://www.nbcnews.com/news/latino/annihilating-journalism-mexican-reporters-work-attacks-killings-rcna14196. Yet, an EOIR Judge was allowed to twice wrongfully deny this “slam dunk” case — on specious grounds such as making the absurd finding that Mr. Gutierrez was not a journalist — over six years before the BIA finally ended the farce!🤡

Even today, there is no BIA precedent to expedite the granting of these meritorious cases and to curb rogue judges from mindlessly denying everything that comes before them (according to TRAC, the IJ in this case had a “facially ludicrous” 95.6% asylum denial record). It’s also no coincidence that AILA attorneys in El Paso, where this case originated, have long complained about anti-asylum bias among the Immigration Judges. See, e.g., https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwjphqPxn62BAxW4EVkFHUz3CEkQFnoECBEQAw&url=https://www.elpasotimes.com/story/news/immigration/2019/04/03/complaint-alleges-misconduct-el-paso-immigration-judges/3357416002/#:~:text=The%20complaint%20alleges%20that%20one,reason%20she%20was%20being%20persecuted.&usg=AOvVaw0FywozGcr8pn-K2ytfZkCT&opi=89978449.

So, let’s put this into a real world context. 15 years, two wrong IJ decisions, and two trips to the BIA to complete (actually it’s still not complete, because it was remanded for “background checks,” but that’s another saga), a case that should have taken a well-qualified Immigration Judge about 15 minutes to grant. So, what chance is there that without major leadership, personnel, structural, and substantive changes, EOIR could do “justice” on asylum cases put on an ”expedited docket.” Slim and none, as actual experience shows!

The necessary first step toward meaningful immigration reform is a complete overhaul of EOIR. Without that readily achievable administrative action, no attempt at legislative or regulatory reform can succeed. It’s not rocket science! 🚀 Just common sense, moral courage, and “good government.”

🇺🇸 Due Process Forever!

PWS

09-16-23

🤮 SCOFFLAW WATCH: IN “A-B-III” A.G. GARLAND ORDERED ALL EOIR JUDGES TO APPLY THE BIA’S PRECEDENT MATTER OF A-R-C-G- (PSG/DOMESTIC VIOLENCE) — HIS BIA DIDN’T GET THE WORD, SAYS 3RD CIR — Avila v. Att’y Gen.

Kangaroos — Mob chatter:
“Hey, anyone here know what an ARCG is?”
“No clue.”
“Some kind of boat?”
“Maybe we should ask Noah.”
“Don’t bother. The only rule we follow around here is ‘When in doubt, throw ‘em out!’”
“Isn’t that what the UN Handbook says, that ‘giving the benefit of the doubt’ means to ‘doubt that any benefit will ever be given?’”
“Yup, sounds right to me!”
“I don’t understand it. We’re overtly hostile to asylum seekers and their lawyers, we’ve tilted the playing field against them, yet they still come! Why?”
“Detain, discourage, deny, deport, deter, that’s our mission!”
“Where due process, fundamental fairness, and best practices go to die!”
“Precedents? We only follow the ones unfavorable to respondents!”
https://www.flickr.com/photos/rasputin243/
Creative Commons License

From: Ted Murphy
Sent: Thursday, September 14, 2023 10:09 AM
To: AILA Philadelphia List
Cc: Kaley Miller-Schaeffer
Subject: 3rd Circuit Precedent – PSG Honduras A-R-C-G-
Importance: High

Friends,

Please see the attached precedent decision from the 3^rd Circuit today. While the first 16 pages of the 21 page decision focus on CIMT issues, the final 4 pages are worth reading on PSG similar to A-R-C-G- that the BIA ignored.

Here, on the other hand, the BIA did not adhere to

Matter of A-R-C-G-’s requirement to examine Avila’s PSG

within the context of the specific country conditions in

Honduras. The BIA rejected Avila’s PSG for lack of

particularity without considering evidence in the record about

“widespread and systemic violence” against Honduran women,

“inconsistent legislation implementation, gender

discrimination within the justice system, and lack of access to

services.”109 Evidence in the record, including that “[l]ess than

one in five cases of femicide are investigated,… and the

average rate of impunity for sexual violence and femicide is

approximately 95%,” may have been relevant in examining

whether Avila’s proposed PSG was cognizable.110 Just as the

cultural attitudes toward gender were relevant in Matter of A-

R-C-G-, evidence in the record as to the “machismo culture” in

Honduras may be relevant to assessing whether Avila has a

cognizable PSG.111

Moreover, in Matter of A-R-C-G-, DHS conceded that

the proposed group “married women in Guatemala who are

unable to leave their relationship” was sufficient for a PSG

asylum claim.112 Given the similarity between that social group

and “Honduran women in a domestic relationship where the

male believes that women are to live under male domination,”

we must remand for the BIA to provide clarification as to its

application of Matter of A-R-C-G-, and to determine whether

Avila’s proposed PSG is cognizable in light of the specific

country conditions

.

We must also remand for the BIA to consider whether

Avila demonstrated a well-founded fear of persecution on

account of her PSG. The BIA determined that Avila’s PSG did

not “exist independently” of the harm alleged, as required

under Matter of M-E-V-G-113 and Matter of W-G-R-.114 Matter

of M-E-V-G- cites to this Court’s prior precedent in Lukwago

v. Ashcroft,115 which states that a PSG “must exist

independently of the persecution suffered by the applicant for

asylum.”116 However, Lukwago makes clear that in

determining whether a PSG exists independently of the

persecution suffered, the BIA must consider the PSG in the

context both of “past persecution” and a “well-founded fear of

persecution.”117 Here, the BIA did not consider whether Avila

had demonstrated that she had a well-founded fear of

persecution based on her past experiences of abuse and sexual

violence. Accordingly, we will remand for the BIA to consider,

in addition to whether Avila has suffered past persecution on

account of her PSG, whether she has demonstrated a well-

founded fear of future persecution.

In conclusion, on remand, the BIA should (1) clarify,

given the Government’s concession in Matter of A-R-C-G- that

the proposed group was sufficient for a PSG asylum claim, its

application of Matter of A-R-C-G- to the present case, and

consider Avila’s PSG in the context of evidence presented

about the country conditions in Honduras and (2) provide

guidance in applying both Matter of A-R-C-G- and Matter of

M-E-V-G- with respect to past persecution and a well-founded

fear of future persecution on account of membership in a PSG

Case was argued by Attorney Kaley Miller-Schaeffer.

Best regards,

Ted

Theodore J. Murphy, Esquire

Murphy Law Firm, PC

https://www2.ca3.uscourts.gov/opinarch/221374p.pdf

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

Once again, the BIA fails to follow its own precedent favorable to the respondent! Yet, in a Dem Administration they get away with mocking the rule of law in life or death cases, in a “court system” that the Dems “own.” Why?

WHO applies precedents and rules can be as important as the precedents and rules themselves! Failure to properly and uniformly apply legal rules that favor asylum seekers has become a chronic problem at EOIR. It’s one that Garland has yet to effectively and comprehensively address!

Many congrats to Kaley Miller-Schaefer and Murphy Law!

Kaley MIller-Schaefer ESQ — Kaley Miller-Schaefer ESQ
Partner
Murphy Law
PHOTO: Linkedin

🇺🇸Due Process Forever!

PWS

09-15-23

😢☠️ DACA: THE CRUELTY IS THE POINT — Right Wing Judges, GOP Politicos Take Aim @ America’s Future By Dumping On Dreamers!🤮

OLAFIMIHAN OSHIN & Rebecca Beitsch report in The Hill:

https://thehill.com/regulation/court-battles/4203346-federal-judge-again-declares-daca-immigration-program-unlawful/

A federal judge for the second time found the DACA program unlawful, but held back from ordering the deportation of the nearly 600,000 people who remain in the country as “Dreamers.”

The Deferred Action for Childhood Arrivals program, first crafted with a 2012 memo under the Obama administration, was likewise found unlawful by federal District Court Judge Andrew Hanen in a similar ruling in 2021.

“While sympathetic to the predicament of DACA recipients and their families, this Court has expressed its concerns about the legality of the program for some time,” Hanen wrote in the 40-page ruling.

“The solution for these deficiencies lies with the legislature, not the executive or judicial branches. Congress, for any number of reasons, has decided not to pass DACA-like legislation.”

Given earlier challenges to the DACA program’s creation through a memo, the Department of Homeland Security (DHS) in 2022 underwent formal rulemaking to solidify the basis for the program.

But Hanen found while the government followed the law in undergoing notice and comment rulemaking, the new rule essentially carried the 2012 memo into a formal rule without addressing prior issues criticized by the court.

Last year the Fifth Circuit Court of Appeals, before remanding the case to Hanen, found broader issues with DACA, saying the policy was inconsistent with immigration processes laid out under the Immigration and Nationality Act.

Hanen pointed to that in his Wednesday ruling, noting that while the record underlying the new rule showed DACA to be beneficial to both recipients and the U.S. “DHS did nothing to change or resolve the substantive problems found by this court or the fifth circuit.The decision earned swift backlash from immigration advocates and spurred familiar calls for Congress to act.

. . . .

The decision earned swift backlash from immigration advocates and spurred familiar calls for Congress to act.

“While expected, today’s court ruling is devastating. It impacts hundreds of thousands of immigrant youth and their loved ones, who have already endured years of uncertainty stemming from politicized attacks on DACA,” Kica Matos, president of the National Immigration Law Center said in a statement.

“Congress has failed to pass a permanent legislative solution, and it is urgent that they act now. We cannot allow court rulings to continue to upend the lives of hundreds of thousands of immigrant youth whose home is here.”

The ruling comes months after a coalition of nine GOP-led states asked Hanen to end the federal program, referring to the program as “unlawful” and “unconstitutional.”

. . . .

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

Read the complete article at the link.

Once you get beyond GOP White Nationalist politicos and judges, DACA legislation is widely popular across the political spectrum. Yet, the GOP is happy to defy the common good, and, sadly, Dems are afraid to leverage and elevate DACA to a “Tier One” issue! So, a generation of younger talent that American needs for the future continues to “twist in the wind!” Stupid, cruel, wasteful!

🇺🇸 Due Process Forever!

PWS

09-14-23

🍂FALL FOLLIES: BIA FUMBLES BASIC STANDARDS FOR FUTURE FEAR AND INTERNAL RELOCATION, SAYS 6TH CIRCUIT — Lin v. Garland

Dan Kowalski reports for LexisNexis Immigration Community:

https://www.opn.ca6.uscourts.gov/opinions.pdf/23a0205p-06.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca6-on-future-fear-internal-relocation-lin-v-garland

“The question before us is whether the BIA’s determinations are supported by substantial evidence. As will be explained below, the BIA’s rationale does not allow us to make that determination. So we grant Lin’s petition and remand for further proceedings. … It is difficult to imagine that a reasonable person in Lin’s position, under the circumstances demonstrated in the record, would feel safe returning home. The determination that Lin failed to show a reasonable likelihood of individualized persecution in China is contravened by the record and compels us to conclude otherwise. … [H]ere, where we are left with no indication that the BIA undertook the appropriate inquiry and significant indications that it likely did not, remand for full consideration is proper.”

[Hats off to Henry Zhang!]

—

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

cell/text/Signal (512) 826-0323

@dkbib on Twitter

dan@cenizo.com

Free Daily Blog: www.bibdaily.com

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PWS: “Another “Big Whiff” by the BIA! Sounds like assembly line denials to me!”

HON. “SIR JEFFREY” CHASE: “Whether a reasonable person returning home would feel safe – the correct standard cited by the circuit, is rarely if ever applied by the current BIA. I would really love to see the IJ training material on this standard.”

This is life or death folks! Why isn’t getting it right at the “retail level” an urgent mission for the Government?

🇺🇸 Due Process Forever!

PWS

09-13-23

⚖️😎☹️ AFTER RARE VICTORY FOR RESPONDENT IN MATTER OF C-G-T- (UNWILLING/UNABLE TO PROTECT, POLICE REPORT, HIDING SEXUAL ORIENTATION), BIA REVERTS TO FORM BY DENYING ADJUSTMENT TO CONDITIONALLY PAROLED CUBANS (MATTER OF CABRERA-FERNANDEZ)

Here’s the link to Matter of C-G-T-, 28 I&N Dec. 740 (BIA 2023):

https://www.justice.gov/eoir/page/file/1594626/download

Here’s the link to Matter of Cabreara-Fernandez, 28 I&N Dec, 747 (BIOA 2023):

https://www.justice.gov/eoir/page/file/1595041/download

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This e-mail exchange among experts says it all about Cabrera-Fernandez:

Expert 1: Wow – they never miss a chance to hurt noncitizens, do they?

Expert 2: The cruelty is the point.

With an available interpretation that would have allowed regularization of status, what purpose is served by devising a way to keep these otherwise qualified Cubans in limbo? Why would the DHS appeal a decision like this? Why would the BIA reward them for pursuing a result that is 1) inhumane, 2) undesirable, and 3) entirely avoidable with a little creativity and common sense (see, IJ in this case)?

No wonder we have backlogs everywhere an a dysfunctional system that nobody in charge seems interested in fixing — even when fixes are available and basically “cost free?” Better leaders and more enlightened decision-makers would be helpful.

🇺🇸Due Process Forever!

PWS

09-12-23

🗽⚖️🇺🇸⚔️🛡 ROUND TABLE (THANKS TO WILMER CUTLER PRO BONO) JOINS OTHER NGOS IN URGING SUPREMES TO PRESERVE MEANINGFUL JUDICIAL REVIEW FOR CANCELLATION! (Wilkinson v. Garland) — Rae Ann Varona Reports for Law360:

Rae Ann Varona
Legal Reporter
Law360
PHOTO: Linkedin

Dan Kowalski over at LexisNexis Immigration Community helpfully forwarded the pdf’s of Rae Ann’s article and the three briefs. You can access them here:

Ex-Immigration Judges Back Trinidadian Man Before Justices – Law360

1718000-1718295-former eoir judges

1718000-1718295-domestic violence orgs

1718000-1718295-aila

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Our Round Table, with the help of some of the greatest litigators and law firms out there, continues to provide key support for the NDPA and timely expertise to the Federal Courts and father Executive on all levels!

🇺🇸Due Process Forever!

PWS

09-08-23

🏴‍☠️ 🤯 ABSURDIST SCOFFLAW TEX “GOV” ABBOTT BLOWN AWAY IN ROUND I OF “BUOY BATTLE!” — Texas Federal Judge Rejects Ludicrous “Invasion Defense!”

Priscilla Alvarez reports for CNN:

https://www.cnn.com/2023/09/06/politics/texas-mexico-border-water-barriers-migrants/index.html

CNN —

A federal judge ordered Texas to remove floating barriers in the Rio Grande and barred the state from building new or placing additional buoys in the river, according to a Wednesday court filing, marking a victory for the Biden administration.

Judge David Alan Ezra ordered Texas to take down the barriers by September 15 at its own expense.

The border buoys have been a hot button immigration issue since they were deployed in the Rio Grande as part of Gov. Greg Abbott’s border security initiative known as Operation Lone Star. The Justice Department had sued the state of Texas in July claiming that the buoys were installed unlawfully and asking the judge to force the state to remove them.

In the lawsuit, filed in US District Court in the Western District of Texas, the Justice Department alleged that Texas and Abbott violated the Rivers and Harbors Appropriation Act by building a structure in US water without permission from United States Army Corps of Engineers and sought an injunction to bar Texas from building additional barriers in the river. The Republican governor, meanwhile, has argued the buoys are intended to deter migrants from crossing into the state from Mexico.

Texas swiftly appealed the judge’s order.

. . . .

Ezra also found Texas’ self-defense argument – that the barriers have been placed in the face of invasion – “unconvincing.”

. . . .

Ezra also found Texas’ self-defense argument – that the barriers have been placed in the face of invasion – “unconvincing.”

. . . .

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

Read the rest of Priscilla’s report at the link.

Who knows how this will play out in the 5th Circuit and the Supremes, given the composition of those courts. But, at least for a day, Judge Ezra has brought some common sense and the rule of law to bear on out of control grandstanding Texas “Governor” Greg Abbott.

In addition to being cruel and illegal, Abbott’s $140 million buoy boondoggle is predictably a failure from a deterrence standpoint. See, e.g., https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwi-5saEvpiBAxUXpIkEHU1VBwoQFnoECBoQAQ&url=https://www.livemint.com/news/texas-floating-border-wall-fails-to-deter-migrants-11693942981798.html&usg=AOvVaw0TX6bBkO0Fv0MezJLQPJkk&opi=89978449. (Although Abbott and his White Nationalist supporters falsely claim otherwise.) But, as my friends Dan Kowalski and Judge “Sir Jeffrey” Chase often say, effective deterrence isn’t the point — the cruelty and dehumanization is!

We should also remember that the vast majority of those whom Abbott and the nativists bogusly call “invaders” seek only to turn themselves in to U.S. authorities so they can exercise their clear legal rights to apply for asylum — rights that attach regardless of status or manner of entering the U.S. (Rights that also have improperly been diminished and impeded by the Biden Administration’s ill-advised asylum regulations, currently under legal challenge).

If successful (under a legal system intentionally rigged against them), these so-called “invaders” will use their skills and work ethic to expand our economy and help Americans prosper while saving their lives and those of their families. To anybody other than Abbott and other White Nationalists, that sounds like a potential “win-win” that could and should be “leveraged” for everyone’s benefit!

Judge Ezra’s opinion in the aptly-named U.S. v. Abbott can be found here:

https://storage.courtlistener.com/recap/gov.uscourts.txwd.1172749163/gov.uscourts.txwd.1172749163.50.0.pdf?ftag=YHF4eb9d17

🇺🇸 Due Process Forever!

PWS

09-07-23

👩🏻‍⚖️ 🇺🇸⚖️🗽 — Judge Elise Manuel — One of The “Good Folks” @ EOIR — Retires From Bench — A Consistent, Courageous Voice For Scholarship, Due Process, & Excellence During An Anti-Immigrant, Anti-Asylum Era @ EOIR Actively Promoted & Instituted During The Trump Era!

Most recently, Judge Manuel served at the Annandale and “Legacy” Arlington Immigration Courts. Here’s her bio:

Attorney General Loretta E. Lynch appointed Judge Elise M. Manuel to begin hearing cases in March 2016. Judge Manuel earned a Bachelor of Arts degree in 1983 from Northwestern University and a Juris Doctor in 1987 from Georgetown University Law Center. From 1991 to February 2016, Judge Manuel served in various capacities on the Board of Immigration Appeals, Executive Office for Immigration Review, U.S. Department of Justice, including: as a temporary board member from 2012 to 2016; as an attorney-advisor from 2008 through 2012, from 1998 through 2005, and 1991 through 1995; as a team leader from 2005 through 2008; and as a senior panel attorney from 1995 through 1998. From 1987 through 1991, she was a staff attorney for the Legal Assistance Foundation of Chicago. Judge Manuel is a member of the Illinois State Bar.

There will be a Farewell Event for Judge Manuel at the Fairview Ballroom in Falls Church, VA, 5:30 pm to 8:00 pm on Thursday, September 7 (tomorrow). You can register at this link: https://ailadc.org/meet-reg1.php?mi=1265383&id=327

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Congratulations to Judge Manuel on a stellar career embodying “guaranteeing fairness and due process for all,” the one-time “EOIR Vision!” Judge Manuel was among the first group of managers I appointed to newly created supervisory positions during my time as BIA Chair.

I trust that Judge Manuel will soon join us on the Round Table of Retired Immigration Judges & BIA Judges 🛡️⚔️ (contact my colleague Judge “Sir Jeffrey” Chase). There is “life after EOIR!”

Thanks for your service, Judge Manuel, and Due Process Forever!

PWS

09-06-23

🤯DOUBLE FAULT (NOT @ THE U.S. OPEN): BIA Screws Up Credibility (2d) & CIMT (9th)

Dan Kowalski reports for LexisNexis Immigration Community:

CA2 on Credibility: Pomavilla-Zaruma v. Garland

https://www.ca2.uscourts.gov/decisions/isysquery/79e67d72-5394-48f3-a31d-354db6bb388e/1/doc/20-3230_opn.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca2-on-credibility-pomavilla-zaruma-v-garland

“Petitioner applied for asylum, withholding of removal, and protection under the Convention Against Torture. An immigration judge found Petitioner not credible and denied her application, relying in part on inconsistencies between Petitioner’s statements during a border interview and later testimony regarding her fear of persecution. However, the immigration judge failed to consider various factors that may have affected the reliability of the border interview record. Petitioner claims that she was frightened during the interview because a border patrol officer hit her and yelled at her upon her arrival to the United States. Petitioner may also have been reluctant to reveal information about persecution because authorities in her home country were allegedly unwilling to help her due to her indigenous status. Moreover, the questions asked during Petitioner’s border interview generally were not designed to elicit the details of an asylum claim. In Ramsameachire v. Ashcroft, 357 F.3d 169 (2d Cir. 2004), we cautioned immigration judges to consider these factors and others before relying on a border interview to find an asylum applicant not credible. Consistent with Ramsameachire and subsequent precedent, we hold that immigration judges are required to take such precautions, provided the record indicates that the Ramsameachire factors may be implicated. Accordingly, we GRANT the petition for review in part, VACATE the BIA’s decision, and REMAND the case for further proceedings consistent with this opinion.”

[Hats off to Reuben S. Kerben!]

—

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

cell/text/Signal (512) 826-0323

@dkbib on Twitter

dan@cenizo.com

Free Daily Blog: www.bibdaily.com

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CA9 (2-1) on CIMT, J-G-P-: Flores-Vasquez v. Garland

https://cdn.ca9.uscourts.gov/datastore/opinions/2023/08/31/20-73447.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca9-2-1-on-cimt-j-g-p–flores-vasquez-v-garland

“Jose Luis Flores-Vasquez (“Flores-Vasquez”), a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal. He argues that the BIA erred in finding that his prior menacing conviction under Oregon Revised Statute § 163.190 constitutes a crime involving moral turpitude (“CIMT”), rendering him ineligible for cancellation of removal. We agree and grant this portion of the petition. … Here, … Matter of J-G-P- does not purport to reassess longstanding BIA and Ninth Circuit precedent concerning simple assault offenses, and because it misapplied that precedent, its conclusion is unreasonable. See id. PETITION FOR REVIEW GRANTED; REMANDED.”

[Hats off to Jonathan C. Gonzales!]

—

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

cell/text/Signal (512) 826-0323

@dkbib on Twitter

dan@cenizo.com

Free Daily Blog: www.bibdaily.com

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The problems continue for a “court” system lacking the necessary leadership, expertise, and due process focus!

🇺🇸 Due Process Forever!

PWS

09-05-23

STUART ANDERSON @ FORBES WITH SOME COMMON SENSE ADVICE: “Let ‘Em Work!” — “There are labor shortages in many U.S. industries, where employers are prepared to offer training and jobs to individuals who are authorized to work in the United States.”💡

Parole programs and other legal pathways reduce illegal entry and are more humane. “Latin American experts say it is wrong to assume immigration enforcement policies can override the human instinct to leave untenable circumstances and seek a better life.” #immigration #asylum #asylumseekers

https://www.linkedin.com/feed/update/urn:li:activity:7103429953483849728?updateEntityUrn=urn%3Ali%3Afs_updateV2%3A%28urn%3Ali%3Aactivity%3A7103429953483849728%2CFEED_DETAIL%2CEMPTY%2CDEFAULT%2Cfalse%29&lipi=urn%3Ali%3Apage%3Ad_flagship3_myitems_savedposts%3Bb2bYzbhpTP2VzgwEtxkzqQ%3D%3D

New York City business leaders have asked the Biden administration to provide more federal aid and expedite work permits for asylum seekers. If asylum seekers could work, they would likely find their own housing, which would ease the burden on New York and other city governments. Businesses around the country seek more workers to fill positions. Advocates recommend policies that would provide a more comprehensive solution amid an historic refugee crisis that analysts consider unlikely to be addressed through enforcement-only policies.

A Plea From Businesses

“The New York business community is deeply concerned about the humanitarian crisis that has resulted from the continued flow of asylum seekers into our country,” according to an August 28, 2023, letter from the Partnership for New York City to President Biden and Congressional leaders. “We write to support the request made by New York Governor Hochul for federal funding for educational, housing, security and health care services to offset the costs that local and state governments are incurring with limited federal aid.

“In addition, there is a compelling need for expedited processing of asylum applications and work permits for those who meet federal eligibility standards. Immigration policies and control of our country’s border are clearly a federal responsibility; state and local governments have no standing in this matter. There are labor shortages in many U.S. industries, where employers are prepared to offer training and jobs to individuals who are authorized to work in the United States.”

. . . .

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Read the complete article at the link.

For each of my classes in Immigration Law & Policy @ Georgetown Law, the students were required to find and report on an item relating or illustrating the topic for the class. Stuart Anderson was one of the “most reported on” sources! I think it’s because his writing is so clear, understandable, and sensible to all audiences!

Immigration affects everything and is a key to a better future for all. That’s why it’s a shame Dems aren’t willing to tout it, instead basically ceding the issue to GOP restrictionists. Big mistake, in my view!

🇺🇸 Due Process Forever!

PWS

09-03-23

⚖️🗽👩🏽‍⚖️👩🏽‍🏫 WITH HELP FROM OUR FRIENDS @ ROPES & GRAY, IMMIGRATION PROFESSORS & ROUND TABLE 🛡️ FILE AMICUS ON WITHHOLDING/NEXUS STANDARD OF PROOF IN 1ST CIR. — Paye v. Garland

Read the full brief here:

Paye [2023.8.25] Amici Brief (Law Profs & IJs & BIA members)

Here’s the “Statement of Interest:”

INTEREST OF THE AMICI CURIAE1

This brief represents the views of two groups of amici curiae. See Corporate

Disclosure Statement for names of amici curiae. The first group is comprised of thirty-two immigration law scholars and clinical professors. These amici teach immigration law and/or provide clinical instruction in law school clinics that provide representation to asylum seekers and noncitizens seeking relief under 8 U.S.C. § 1231 and 8 U.S.C § 1158. As such, amici are knowledgeable of the particular legal requirements of 8 U.S.C. § 1231 and 8 U.S.C § 1158 and have a special interest in the proper administration and interpretation of the nation’s immigration laws, particularly asylum and withholding of removal.

The second group is comprised of forty-one former immigration judges (“IJs”) and Board of Immigration Appeals (“BIA”) members who have collectively presided over thousands of removal proceedings and have interest in this case based on their many years of dedicated service administering the immigration laws of the United States. Based on this experience, amici believe that withholding of removal

1 Pursuant to Rule 29 of the Federal Rules of Appellate Procedure, amici notes that all parties have consented to the filing of this brief.

Furthermore, pursuant to Rule 29 of the Federal Rules of Appellate Procedure, amici further certifies that no party’s counsel authored the brief in whole or in part, no party or party’s counsel contributed money that was intended to fund preparation or submission of the brief, and no person, other than amici, their members, or counsel has contributed money intended to fund preparing or submitting the brief.

-1-

Case: 23-1426 Document: 00118044713 Page: 13 Date Filed: 08/25/2023 Entry ID: 6587480

is the means whereby Congress provided for the United States to meet its international treaty obligation of “nonrefoulement” under Article 33 of the Refugee Convention. Withholding of removal is a vital legal tool upon which IJs rely to ensure that noncitizens appearing before them are not removed to countries for which they have proven it to be more likely than not that they have experienced (or will experience) persecution on account of a protected ground — an extremely high burden to meet. This relief is mandatory where the noncitizen’s burden of proof is met and does not lead to permanent status or derivative status for immediate family members, in contrast to asylum, which is a discretionary form of relief that grants a permanent status and derivative status for immediate family members.

Amici contend that the more lenient “a reason” standard, as applied to the nexus between the protected ground and the persecution for withholding (as opposed to the “at least one central reason” standard for asylum) requires IJs to order withholding in cases where evidence of nexus may be insufficient for a discretionary grant of asylum. Such an interpretation would provide greater protection from violating the international treaty obligation of nonrefoulement. The instant case, where Petitioner is ineligible for asylum but may be protected from severe future persecution by withholding of removal, presents exactly the context in which Congress intended for the lesser “a reason” nexus standard to apply. Addressing this question here provides an opportunity for this Court to affirm Congress’s clear

-2-

Case: 23-1426 Document: 00118044713 Page: 14 Date Filed: 08/25/2023 Entry ID: 6587480

intent, expressed in the statutory language of 8 U.S.C. § 1231(b)(3)(C), to establish protection against nonrefoulement for this noncitizen and many others who, for any number of reasons, are ineligible for the discretionary relief of asylum.

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Many thanks to all involved!

🇺🇸 Due Process Forever!

PWS

08-28-23

🤯 CAT-ASTROPHE: TOM MOSELEY DOWNS OIL, AS 3RD REACTS TO EOIR’S DISDAIN FOR FOLLOWING CIRCUIT PRECEDENT!

Train wreck —
“A heck of a way to run the railway!”
Public Realm

Dan Kowalski reports for LexisNexis Immigration Community:

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca3-on-cat-procedural-failures-not-following-instructions-llanes-quintero-v-atty-gen

“On Petition for Review of a Final Order of the Board of Immigration Appeals. (Agency No. A209-343-065). Immigration Judge: David Cheng. … As for Quinteros’s Convention Against Torture claim, our precedent requires the agency to follow certain steps. Yet neither the judge nor the Board did so. … Here, neither the immigration judge nor the Board followed our instructions. … Those procedural failures infected the agency’s decisions. Neither the immigration judge nor the Board considered a separate death threat and beatings that Quinteros got from gang members. In gauging the likelihood and severity of future harm, the agency should have considered the gang’s death threat too. See Herrera-Reyes v. Att’y Gen., 952 F.3d 101, 112 n.5 (3d Cir. 2020). So we will grant the petition as to Quinteros’s Convention Against Torture claim, vacate the Board’s order, and remand.”

[Hats off to Thomas E. Moseley!]

Thomas E. Moseley ESQ

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Gee whiz, applying and following Circuit precedent seems like “Immigration Judging 101!” Yet two levels of supposedly “expert” EOIR judges blew it — badly! Fortunately, this respondent was represented by experienced Federal litigator Thomas E. Moseley, who is never afraid to go to the Article IIIs to correct EOIR’s errors.

But, most respondents aren’t so lucky. So, it’s likely that for every defective adjudication “outed” by a Circuit, multiple, potentially deadly or at least life changing, mistakes go uncorrected. Worse yet, some are even “institutionalized!” Seems like a “heck of a way to run the railway,” particularly for a former Article III Judge who was once nominated for the Supremes!

Unforced error after unforced error in life or death cases from Garland’s substandard “courts!” Would brain surgeons 🤯☠️ who kept on screwing up critical operations still be “on staff.” I doubt it! So, why aren’t “DOJ attorneys” carrying out quasi-judicial functions subject to some quality controls? In theory, that’s supposed to be the BIA’s function. But, the BIA has firmly established itself as “part of the problem, NOT the solution!”

Congrats to my long-time friend and former “Legacy INS” colleague Tom Moseley. As a former INS Special Assistant U.S. Attorney in the SDNY (in the time of “Crazy Rudy”) during the “Inman/Schmidt Era” at INS General Counsel, Tom has also seen both sides of the system!

🇺🇸 Due Process Forever!

PWS

08-27-23

🗽⚖️ BIA CONTINUES TO STRUGGLE WITH STANDARDS — Fortunately, WilmerHale (Tasha H. Bahal), Round Table 🛡️, 1st Cir. There To Straighten Things Out! — Murillo Morocho v. Garland — With Commentary From Hon. “Sir Jeffrey” Chase!

Dan Kowalski reports for LexisNexis Immigration Community:

http://media.ca1.uscourts.gov/pdf.opinions/22-1881P-01A.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca1-on-cat-standard-of-review-murillo-morocho-v-garland

“Petitioner Darwin Murillo Morocho seeks review of an order of the Board of Immigration Appeals (“BIA”) affirming the denial of his application for deferral of removal to Ecuador under the Convention Against Torture (“CAT”). Murillo Morocho claims that, if returned to Ecuador, it is more likely than not that he would be tortured by the Ecuadorian government itself or by private actors acting with the consent or acquiescence of public officials. Before this court, he argues that the BIA applied the wrong standard of review to the Immigration Judge’s (“IJ’s”) legal conclusions. He further claims that both the BIA and the IJ applied the incorrect legal standard in assessing whether the Ecuadorian government would more likely than not consent or acquiesce in his torture. Finally, he argues that even if the BIA and IJ applied the proper legal standards, the BIA’s decision, which adopts the IJ’s decision, is not supported by substantial evidence and that the IJ erred in not giving him the opportunity to further corroborate his testimony. We agree that the agency1 applied the incorrect legal standard to the “consent or acquiescence” prong of Murillo Morocho’s CAT claim. We therefore grant his petition for review in part, vacate the order of the BIA denying Murillo Morocho CAT relief as to Ecuador, and remand for further proceedings consistent with this opinion.”

[Hats off to Tasha J. Bahal!]

Tasha J. Bahal
Counsel
WilmerHale

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Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

cell/text/Signal (512) 826-0323

@dkbib on Twitter

dan@cenizo.com

Free Daily Blog: www.bibdaily.com

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

Many congrats to Tasha and the rest of rest of the wonderful pro bono team over at WilmerHale!

Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

Here’s what my Round Table colleague Hon. “Sir Jeffrey” Chase had to say:

Wonderful decision. Wilmer Hale has been doing outstanding work on deportation defense litigation.

H.H., the First Circuit’s recent precedent in which our Round Table filed an amicus brief, featured prominently in this decision.

Once again, the agency took the easy out – i.e. giving lip service to the acquiescence standard, rather than indulging in the in depth analysis required in such claims. Of course, EOIR’s training does not teach otherwise, and the BIA chooses to rubber stamp rather than correct and remand.

The First Circuit actually did the required analysis here. By contrast, it appears that as a “dismissal of a denial” by an IJ, this decision “defaulted” to the BIA’s “any reason to deny” assembly line. I suspect that if this had been a DHS appeal of an IJ grant, it would have received a more detailed, critical analysis. However, as we often see, even that analysis might be devoted to finding a bogus reason to deny.

Despite some improvement in the quality of IJ and BIA appointments under Garland, the lack of dynamic expert “pro due process” leadership and “culture of denial and deterrence” remain debilitating (and potentially life-threatening) problems at EOIR!

🇺🇸 Due Process Forever!

PWS

08-24-23

Related posts:

Dan Rather and Elliot Kirschner write on Steady on Substack:

🇺🇸 Due Process Forever!

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🇺🇸 Due Process Forever!

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🇺🇸Due Process Forever!

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🇺🇸 Due Process Forever!

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Dan Kowalski reports for LexisNexis Immigration Community:

🇺🇸 Due Process Forever!

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Here’s the link to Matter of C-G-T-, 28 I&N Dec. 740 (BIA 2023):

Here’s the link to Matter of Cabreara-Fernandez, 28 I&N Dec, 747 (BIOA 2023):

🇺🇸Due Process Forever!

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Dan Kowalski over at LexisNexis Immigration Community helpfully forwarded the pdf’s of Rae Ann’s article and the three briefs. You can access them here:

🇺🇸Due Process Forever!

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Priscilla Alvarez reports for CNN:

🇺🇸 Due Process Forever!

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Most recently, Judge Manuel served at the Annandale and “Legacy” Arlington Immigration Courts. Here’s her bio:

Thanks for your service, Judge Manuel, and Due Process Forever!

Related posts:

Dan Kowalski reports for LexisNexis Immigration Community:

🇺🇸 Due Process Forever!

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🇺🇸 Due Process Forever!

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Read the full brief here:

Here’s the “Statement of Interest:”

🇺🇸 Due Process Forever!

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Dan Kowalski reports for LexisNexis Immigration Community:

🇺🇸 Due Process Forever!

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Dan Kowalski reports for LexisNexis Immigration Community:

🇺🇸 Due Process Forever!

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